Shri.Iftiquar Ali Ahmed v. Union Of India And ANR

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT : THE HON'BLE JUSTICE SUVRA GHOSH AND THE HON'BLE JUSTICE MD. SHABBAR RASHIDI WP.CT/13/2025 SHRI IFTIQUAR ALI AHMED ... PETITIONER VS.

THE UNION OF INDIA AND ANOTHER ... RESPONDENTS For the Petitioner : Mr. Terence D' Cruz For the Respondents : Mr. Shatadru Chakraborty, Sr. Adv Mr. Rakesh Kumar, Mr. Dibesh Dwivedi Hearing concluded on : August 01, 2025 Judgment delivered on : August 05, 2025 SUVRA GHOSH, J.

1.

The petitioner was appointed as a Sub Inspector of Police by the Director General of Police (for short, the DGP), Andaman and Nicobar Administration. Disciplinary proceeding was initiated against him by the DGP who imposed penalty upon him. He was granted liberty to prefer an appeal before the Appellate Authority being the Hon'ble Lieutenant Governor, Andaman and Nicobar Islands within three months from the date of receipt of the order. The petitioner

preferred appeal before the Lieutenant Governor which was dismissed, upon hearing the petitioner.

2.

The petitioner assailed the appellate order before the Central Administrative Tribunal, Kolkata Bench sitting in circuit at Port Blair and by an order passed on February 26, 2024, the Tribunal turned down the prayer of the petitioner and dismissed the application. The petitioner filed review application before the Tribunal on the ground that the proceeding was in violation of Rule 9.3(b) of the Andaman and Nicobar Police Manual, 1963, since the proceeding was initiated by the DGP and not the Inspector General of Police, as laid down in Rule 9.1. Also, the appeal should have been considered by the President of India and not the Lieutenant Governor. The review petition was dismissed by the Tribunal against which the petitioner approached this Court in a writ petition. By an order passed on March 20, 2025, this Court disposed of the writ petition with liberty to the petitioner to raise the issue in the writ petition intended to be filed against the parent order of the Tribunal. In pursuance thereof, the petitioner has filed the present application. 3.

Learned counsel for the petitioner has canvassed his argument solely on the ground that the disciplinary proceeding was not in accordance with the Police Manual. In terms of Rule 9.1 of the Manual, the Inspector General of Police is the Disciplinary Authority and the Hon'ble President of India is the Appellate Authority. This

fact was not within the knowledge of the petitioner when the earlier application was disposed of by the Tribunal. According to learned counsel, since the proceeding is in violation of the Police Manual, it should be set aside and the petitioner be reinstated in service with all consequential benefits.

4.

Learned counsel has placed reliance on the authorities in State of Tamil Nadu represented by Secretary to Government (Home) vs. Promod Kumar, IPS and another reported in (2018) 17 SCC 677, Superintendent of Police, Manipur and others vs. R. K. Tomalsana Singh (Dead) by Lrs. reported in 1984 SCC LS 620 and The State of Jharkhand vs. Rukma Kesh Mishra reported in 2025 INSC 412 in support of his contention.

5.

Opposing the prayer, learned counsel for the respondents has drawn the attention of the Court to Article 311 of the Constitution of India and has submitted that since the petitioner was appointed by the DGP, no officer below the rank of DGP could have initiated the disciplinary proceeding against him or dismissed him from service. Despite being represented before the authorities and the Tribunal, the petitioner did not raise this issue before any of the authorities prior to dismissal of his claim by the Tribunal. Since he has submitted himself before the authorities and the disciplinary proceeding, appellate proceeding and the proceeding before the

Tribunal have concluded, the petitioner is debarred from raising this issue at such belated stage.

6.

Learned counsel relied upon the authority in Ratan Singh vs. State of Jharkhand reported in 2015 SCC OnLine Jhar 90 in support of his contention.

7.

We have considered the rival contention of the parties and material on record.

8.

The petitioner was appointed by the DGP. Disciplinary proceeding was initiated against him by the DGP who confirmed the penalty of removal from service with immediate effect for proven misconduct on his part. The appeal was considered by the Hon'ble Lieutenant Governor, Andaman and Nicobar Islands. 9.

Article 311(1) of the Constitution of India envisages that no person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. 10.

Article 311(2) says that no such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. 11.

In the present case, violation of Article 311(2) of the Constitution of India is not pleaded. It appears from the record that

such provision has been duly complied with by the authorities in imposing the penalty of dismissal.

12.

The authority in Ratan Singh (supra) speaks in tune with Article 311(1). However, the Hon'ble Supreme Court, in the authority in State of Jharkhand (supra) has clarified that departmental proceeding consists of several stages: the initiation of the proceeding, the inquiry in respect of the charges levelled against the delinquent officer and the final order which is passed after conclusion of the inquiry. Article 311(1) guarantees that no person who is a member of civil service of the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. But Article 311 (1) does not say that even a departmental proceeding must be initiated only by the appointing authority. The Hon'ble Court left it open for the Union of India or a State Government to frame rules prescribing that even the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority.

13.

Therefore the disciplinary proceeding against the petitioner could have been initiated by the Inspector General of Police who is subordinate to the appointing authority being the DGP. Since the penalty has been imposed by the appointing authority in conformity with Article 311(1) of the Constitution of India, the proceeding or the

imposition of penalty cannot be said to be vitiated by illegality or irregularity.

14.

Of course, the Police Manual authorizes the Inspector General of Police to award punishment to a police officer in the rank of Sub Inspector as in the present case. Herein, penalty was imposed by the DGP who is superior to the Inspector General of Police. Since such imposition of penalty is not barred in terms of Article 311 (1), it cannot be said to be perverse.

15.

With regard to the appeal being considered by the Lieutenant Governor, this Court is of the view that in absence of any other provision of law dealing with such issue, it is guided by Rule 9.1 of the Police Manual which demonstrates that the Appellate Authority shall be the President of India.

16.

In view thereof, the appeal should have been dealt with by the President of India and not the Lieutenant Governor. 17.

True, this issue was not raised by the petitioner before the Appellate Authority when the appeal was heard. But as this is a procedural lapse on the part of the authority, mere silence of the petitioner cannot cure the same. At this juncture, this Court is inclined to refer to the authority in State of Tamil Nadu (supra) wherein the authority has referred to the report in Taylor vs. Taylor (1875) LR 1 Ch D 426 at page 431. The said report demonstrates the settled law that if the rule requires something to be done in a

particular manner, it should be done either in the same manner or not at all.

18.

In the said backdrop, this Court is inclined to hold that the order impugned insofar as the order passed by the Appellate Authority on June 13, 2022 is affirmed by the Tribunal is required to be quashed/set aside. However, we are not inclined to interfere with the order passed by the Disciplinary Authority on May 10, 2021. 19.

Accordingly, the application being WP.CT/13/2025 is allowed in part.

20.

The portion of the order impugned dated February 26, 2024 affirming the dismissal of the appeal is set aside. 21.

Liberty is granted to the petitioner to assail the order passed by the Disciplinary Authority on May 01, 2021 before the Appellate Authority authorized to deal with the appeal in terms of Rule 9.1 of the Police Manual.

22.

In the event the petitioner prefers such appeal, the Appellate Authority shall deal with the same on merits upon condoning the delay in preferring the same, as expeditiously as possible, upon granting reasonable opportunity of hearing to all concerned including the petitioner, in accordance with law.

23.

There shall, however, be no order as to costs.

24.

Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities.

I agree ( MD. SHABBAR RASHIDI, J.) ( SUVRA GHOSH, J. )