This intra-court appeal has arisen from the order dated 19th of January, 2000, passed in Writ Petition No.6034 of 1990 (SS) as well as the order dated 12.12.2003, passed in the Review Petition No.63 of 2000.
Heard Km.Vishwa Mohini, learned counsel for the appellant, Mr. Upendra Nath Mishra, learned Chief Standing Counsel and Mr. V.S. Tripathi, learned Additional Chief Standing Counsel for the respondents.
The facts in brief are that the appellant was appointed as Orderly Peon on 8th of February, 1988 in the office of the Inspector General of Police, Research, Policy Planning, Rules and Manual, U.P., Lucknow by the Senior Superintendent of Police, Lucknow. The appellant, being posted as such, tendered resignation on 29th of May, 1990. The appellant submitted resignation to the Inspector General of Police to accept it w.e.f. 1st of June, 1990. Earlier to this also the appellant had submitted resignation on 21.5.1989 as well as on 14th of March, 1990. The Senior Superintendent of Police forwarded the appellant's resignation vide letter dated 29th of May, 1990 to the Inspector General of Police for its acceptance, which was accepted on 2nd of June, 1990. However, the appellant challenged the order dated 2nd of June, 1990 of the Inspector General of Police, accepting the appellant's resignation, by means of Writ Petition No.6034 of 1990 (SS), on the ground that the order of acceptance of resignation letter is without jurisdiction, mala fide and illegal and it amounts to termination simplicitor and is against the provisions of Article 311 (2) of the Constitution of India. Further also is in violation of Para 505 of the U.P. Police Regulations.
The appellant stated that he was compelled to submit the resignation by one Shri Raj Narayan Shukla being posted as Head Constable in the office of the Inspector General of Police and on 2nd of June, 1990 itself he tried to submit a representation to the Inspector General of Police for not accepting the resignation, but in turn he was provided the order of termination. The writ court dismissed the writ petition by means of order dated 19th of January, 2000 with the observation that the Inspector General of Police being higher in rank, under whom the petitioner-appellant was working at the relevant time, was fully competent to accept the resignation. Moreover, the petitioner-appellant failed to show any Rule or provision to indicate that the appointing authority of Orderly Peon in the office of Inspector General is Senior Superintendent of Police, while in the counter affidavit, it has been stated that the Senior Superintendent of Police has been made appointing authority under the delegated power of the Inspector General of Police. It has also been observed that there is no bar that the resignation cannot be accepted by any officer higher in rank to the appointing authority and as such the acceptance of resignation by the Inspector General of Police is not violative of Article 311 of the Constitution of India.
So far as the appellant's allegation that his resignation was taken under duress is concerned, it has been observed by the learned Single Judge that the appellant himself requested to accept his resignation w.e.f. 1st of June, 1990.
The appellant sought review of this order on the same very grounds with the allegation that the resignation was obtained fraudulently under coercion. However, this ground is not even touched by the learned Single Judge in deciding the writ petition. The learned Single Judge by means of order dated 12th of December, 2003 dismissed the Review Petition as misconceived with the observations that the appellant was working outside the jurisdiction of S.S.P. i.e. in the office of the Inspector General of Police, Research, Policy Planning, Rules and Manual, U.P. Lucknow and the staff posted under the Inspector General of Police is not under the administrative control of S.S.P., Lucknow. It is not the case of termination from service. The resignation was tendered by the appellant with the request that the same be accepted w.e.f. 1st of June, 1990, which was accepted by the Inspector General of Police on 2nd of June, 1990 while the appellant was working in his office, therefore, the order passed by the Inspector General of Police cannot be said to be without jurisdiction.
Through the instant appeal the appellant has added one more ground to challenge the orders passed by the learned Single Judge that the services of the appellant were governed by U.P. Temporary Government Servants (Termination of Service) Rules, 1975, Rule 3 of which provides for accepting resignation by the appointing authority alone and in the appellant's case the appointing authority is the S.S.P., Lucknow, who is only the competent authority to accept the resignation. Further the petitioner's allegation that the resignation was obtained fraudulently and under coercion has not been touched by the learned Single Judge.
The learned counsel for the appellant submitted that Chapter XXVIII of Police Office Manual deals with the appointment/Promotion/transfer etc. of the clerical staff. Paragraph 312(x) defines the clerical staff, in which the Orderly Peon is also included. Paragraph 316 empowers the Superintendent of Police to make temporary appointment of Orderly Peon and paragraph 318 empowers the Superintendent of Police to make permanent appointment of Orderly Peon.
Chapter XXXII, Para 505 of the Police Regulations provides the provisions for acceptance of resignation of the Police Officers of the rank of Inspector or below to him and the appellant claims the application of the provisions of paragraph 505 in his case, which is quoted hereunder:-
"505. A Police Officer of the rank of Inspector or below can resign his office on giving in writing two months' notice of his intention to resign but he shall not withdraw from the duties of his office until such time his resignation has been formally accepted by the appropriate authority and he has fully discharged any debt due by him as such Police Officer to Government or to any police fund:
Provided that such a resignation may be accepted by the authority with effect from a date prior to the date of expiry of the notice:
Provided further that the resignation of a police officer whose conduct is under inquiry or who is being proceeded against departmentally under Section 7 of the Police Act, 1861 (Act No.V of 1861) or tried in a court of law for any offence may, in the discretion of such authority, not be accepted until such time the final orders are passed as a result of such inquiry, proceedings or trial as the case may be."
The appellant further seeks protection of Article 311(1) of the Constitution of India and in light of the said provision, it is stated that the appellant could not be terminated from service either by the authority higher to the appointing authority or subordinate to it.
In support of his submissions the appellant has relied upon some decisions, which are referred to as under:-
(1) Lalit Mohan Upadhyay versus the Principal, Kumaon Engineering College, Dwarhat, district Almora and others, reported in (2000) 1 UPLBEC 130. In this case it has been held that a writ court is fully empowered to unveil the real cause behind the simple order accepting resignation from the attending circumstances under which the resignation was obtained and accepted by the incompetent authority avoiding the normal procedure provided under the Rules.
(2) Ravinder Singh versus State of M.P. and others, reported in (1995) 2 SCC 424.
(3) Dinesh Kumar versus Commandant, 15th Battalion PAC, Agra, reported in 2000 (38) ALR, page 9.
(4) Diwan Singh Bisht versus Life Insurance Corporatin of India, Mumbai and others, reported in 2005(3) AWC 2318 (All.).
It is further stated that once paragraph 505 of the Police Regulations provides procedure for acceptance of resignation submitted by the employees of the Police Department, in light of the decision of Nazir Ahmed versus King Emperor, reported in AIR 1936, PC 253, the same should have been accepted by the competent authority that too in accordance with the procedure prescribed in the Regulations.
In the case noted above, it has been held that when power is given to do certain things in a certain manner, the thing must be done in that way or not at all, other methods of performance are necessarily forbidden. Paragraph 505 of the Police Regulations has been declared as mandatory in the case of Satya Paul Kalra versus The Deputy Inspector General of Police and others, reported in AIR 1964 Allahabad 121 (V 51 C 37).
In reply the learned Additional Chief Standing Counsel submitted that the appellant was appointed as Orderly Peon, which fell vacant due to transfer of an employee, under the direction of the Police Headquarter, on the request of the Inspector General of Police, Research, Policy Planning, Rules and Manual, U.P., Lucknow. By means of Radiogram Message dated 9th of October, 1987, 6th of November, 1987 and 12th of November, 1987 as well as 16th of November, 1987 issued by the Police Headquarter, the Senior Superintendent of Police, Lucknow was authorized for recruitment/enlistment of two orderly peons for the office of the Inspector General of Police, Research, Policy Planning, Rules and Manuals, U.P., Lucknow. Accordingly the appellant was recruited by the Senior Superintendent of Police, Lucknow and was appointed on the post of Orderly Peon in the office of the Inspector General of Police, Research, Policy Planning, Rules and Manual, U.P., Lucknow.
It is stated that the Inspector General of Police, Research, Policy Planning, Rules and Manuals, U.P., Lucknow was a separate establishment to the sanctioned strength of district Police, Lucknow, therefore, the Senior Superintendent of Police, Lucknow had no administrative control over him. It is further stated that after appointment, the appellant started working, but since he was apparently suffering from depression, he tried to give his resignation on three occasions i.e. 21.5.1989, 14.3.1990 and 29.5.1990. However, the first two resignation letters were ignored and the appellant was orally reprimanded, but he consistently pursued submission of resignation, as is evident from the resignation letter submitted to the Inspector General of Police, Research, Policy Planning, Rules and Manuals, U.P., Lucknow, on the 3rd time on 29th of May, 1990. The Inspector General of Police, Research, Policy Planning, Rules and Manuals, U.P., Lucknow nominated one Mr. S.P.N. Rai, Staff Officer to ascertain as to whether the resignation was tendered by the appellant voluntarily or due to some other reasons. In furtherance of which the appellant and his two brothers were summoned, but they did not turn up. However, the Head Constable, to whom the resignation letter was handed over by the appellant and one Constable and one Orderly Peon recorded their statements before the Enquiry Officer. The statements of all these officials were fully testified and when it was established that the resignation was tendered by the appellant on his own free will voluntarily and without any coercion or duress, the same was accepted by the Inspector General of Police, Research, Policy Planning, Rules and Manuals, U.P., Lucknow on 2nd of June, 1990.
For the establishment of Research, Policy Planning, Rules and Manuals, only the post of Inspector General was sanctioned by the State Government and no post of Senior Superintendent of Police was sanctioned by the State Government, particularly in this establishment, therefore, only the Inspector General of Police, Research, Policy Planning, Rules and Manuals, U.P., Lucknow was having all administrative control over his office. That being so, he was competent enough to accept the appellant's resignation. It is further stated that Article 311(1) of the Constitution of India deprives the authority subordinate to the appointing authority to termination an employee's services, but it does not restrain the superior to the appointing authority to pass any such order. He drew the attention of this court towards Chapter-I, Regulation 1 of the U.P. Police Regulations, which deals with the functions of Inspector General-cum-Director General, which is quoted hereunder:-
"The Inspector-General is the head of the Police Department and the adviser of the Governor in Council on all questions of Police administration. All orders from the Governor in Council to a member of the Police force are issued through him, except in cases of urgency when copies of any orders issued direct to subordinate officers are sent to him. No police officer may correspond with the Governor in Council except through him, unless specially authorized by rule. As a matter of administrative routine he is concerned only with the gazetted officers, the general allocation of staff and the general distribution of funds, complete responsibility in regard to the non-gazetted staff being delegated to Deputy Inspector General, except in regard to the posting, transfer and grant of leave to inspectors in certain cities and stations and to the posting, transfer and promotion of the clerical staff, which can most conveniently be regulated by him."
He further drew our attention towards Section 36 of the Code of Criminal Procedure, which deals with the power of the superior authority of police, which is quoted hereunder:-
"36. Powers of superior officers of police.- Police officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station."
In light of the aforesaid provisions it is stated by the learned Additional Chief Standing Counsel that it is not in dispute that Inspector General of Police is the officer superior in rank to the Superintendent of Police, but since he is empowered to exercise all the powers as is exercised by the Senior Superintendent of Police in his area, the order passed by him cannot be said to be without jurisdiction.
In support of his aforesaid submission he also cited the following two decisions:-
(1) Ramesh Chandra and others versus Vice-Chancellor University of Allahabad and others, reported in 2002 (46) ALR 551.
(2)Kamlesh Kumar Chaurasia versus the Governor, State of U.P. And others, reported in 1992 (19) ALR 522.
In the aforesaid judgments this court by interpreting the provisions of Article 311 of the Constitution of India has held that the order of suspension can be issued by the authority superior to the appointing authority.
Therefore, having gone through the pleadings as well as the submissions made before us, mainly two questions arise for consideration and determination viz - (I) whether the resignation submitted by the appellant was voluntary, and (ii) who is the competent authority to accept the resignation?
Now coming to the first question, the resignation letter of the appellant has been annexed with the counter affidavit of respondent no.5. A perusal thereof indicates that the petitioner-appellant requested the Inspector General of Police, Research, Policy Planning, Rules and Manuals, U.P., Lucknow to discharge him, as due to family circumstances, he is not able to continue in service. Further, it is not in dispute that the aforesaid letters of resignation are in his own hand-writing. Besides, more than once he submitted one after another letter of resignation to accept the same as he was not able to carry out his duties due to family reasons. The Head Constable to whom the resignation letter was handed over by the appellant and the Constable and the Orderly Peon in their statements before the Investigating Officer also stated that the appellant submitted his resignation voluntarily. For these reasons, the contention that the appellant was compelled to resign cannot be accepted. The act of submitting letters of resignation being voluntary, the first question is answered in affirmative, i.e. the appellant himself voluntarily submitted resignation as on the basis of material on record, no other conclusion can be drawn. The allegation that he submitted the resignation under pressure and duress has been denied in the counter affidavit of the respondents. It has further been disclosed that on two previous occasions, he submitted the resignation letter but he did not press the same on persuasion.
Now coming to the second question, as to whether the Inspector General of Police, Research, Policy Planning, Rules and Manuals, U.P., Lucknow was competent to accept the resignation or not, learned counsel for the appellant has strongly relied on Chapter XXXII Para 505 of the U.P. Police Regulations, which provides that a Police Officer of the rank of Inspector or below can resign his office on giving in writing two months' notice of his intention to resign but he shall not withdraw from the duties of his office until such time his resignation has been formally accepted by the appropriate authority and he has fully discharged any debt due by him as such Police Officer to Government or to any police fund. However, the first proviso to the said provision permits the authority to accept the resignation even prior to the date of expiry of the notice, i.e. two months. In the case in hand, the resignation has been accepted by the Inspector General of Police, Research, Policy Planning, Rules and Manuals, U.P., Lucknow under whose establishment the appellant was working as Constable before expiry of two months. In paragraph 4 of the counter affidavit filed in the writ petition, it has been stated that the Senior Superintendent of Police, Lucknow made the selection and appointment of the appellant under the delegated power of respondent no.3 - Inspector General of Police, Research, Policy Planning, Rules and Manuals, U.P., Lucknow in pursuance of the directions issued by the Police Headquarters, Allahabad. The averments made in the writ petition that the appellant was temporarily transferred to the office of respondent no.3 has been denied. It has been stated that the appellant was appointed against a substantive vacancy in the office of respondent no.3. Therefore, it is apparent that the appellant was appointed to the post of Constable in the establishment of the Inspector General of Police, Research, Policy Planning, Rules and Manuals, U.P., Lucknow where Senior Superintendent of Police or Superintendent of Police is not posted and, therefore, it was the Inspector General of Police, Research, Policy Planning, Rules and Manuals, U.P., Lucknow, who had full control over the employees of his establishment and in light of the Regulation 1 of the U.P. Police Regulations the Inspector General of Police, Research, Policy Planning, Rules and Manuals, U.P., Lucknow keeps administrative control over the staff.
Section 36 of the Code of Criminal Procedure also empowers the police officer superior in rank to exercise the same powers through out the area to which they are appointed as may be exercised by the Incharge of the Police Station within the limits of his station. Thus, it is obvious that the Inspector General of Police, Research, Policy Planning, Rules and Manuals, U.P., Lucknow is empowered to exercise all powers of the subordinate officers in the area, which is under his control.
It is not in dispute that the petitioner-appellant was posted in the establishment of Inspector General of Police, Research, Policy Planning, Rules and Manuals, U.P., Lucknow, therefore, in light of the aforesaid provisions, we are of the view that the Inspector General of Police, Research, Policy Planning, Rules and Manuals, U.P., Lucknow was fully empowered to accept the appellant's resignation. The second question is also answered accordingly.
Thus, we do not find any error in the orders impugned passed by the learned Single Judge. Therefore, the appeal is dismissed being devoid of merit.