# 2 S.C.R. SUPREME COURT REPORTS THE STATE OF UTTAR PRADESH AND OTHERS v. BABU RAM UPADHYA

- **Citation:** [1961] 2 S.C.R. 679
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Civil Appeal No. 119 of 1959
- **Bench:** P. B. Gajendragadkar, A. K. Sarkar, K. Subba Rao, K. N. W Anchoo, J. R. MuDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2-s-c-r-supreme-court-reports-the-state-of-uttar-pradesh-and-others-v-babu-ram-2025
- **Pages:** 50

## Headnote

679
Public Servant-Police Officer, dismissal of-Polict; Regulations, i~hether mandatory-Disregard of, if invalidates disciplinary
action--Autlwrities empow,orcd to take action-If exercise powers of
Governor-Police Act, r86r (V of r86r), s. 7-U. P. Police Regulations, 1\ara. 486-Constitution of India, Arts. r54, 309, 3ro, 3rr.
The respondent was a sub-Inspector of Police. A complaint
was received by the Superintendent of Police that the complainant was carrying currency notes of Rs. 650 in a bundle
when he was stopped by the respondent and his person was
searched, that the respondent opened the bundle of notes and
handed over the notes one by one to one Lalji, who was with
him and that Lalji returned the notes to him but on reaching
home he found the notes short by Rs. 2:;0.
Proceedings under 1 )
s. 7 of the Police Act were taken against the respondent on the ·
charge of misappropriation of Rs. 250 and he was dismissed from
service by an order of the Deputy Inspector General of Police.
The respondent filed a writ petition before the High Court challenging the order of the dismi,sal on the ground that the authorities had acted in violation of Rule I of Para. 486 of the U. P.
Police Regulation. This rule required that every information
received by the police relating to the commission of a cognizable
offence by a Police Officer shall be dealt with in the first place
under Ch. XIV, Code of Criminal Procedure. The High Court
held that the provisions of para. 486 of the Police Regulations
had not been observed and that the proceedings taken under
s. 7 of the Police Act were invalid and illegal and accordingly
quashed the order of dismissal. The appellant contended (i)
that the complaint <lid not make out any cognizable offence
against the respondent and r. I of Para. 486 was not applicable
in this case, (ii) that r. III of Para. 486 enabled the authorities
to initiate departmental proceedings without complying with the
provisions of r. I, (iii) that the Police Regulations made in exercise of the power conferred on the Government under the Police
Act delegating the power of the Governor to dismiss at pleasure
to a subordinate officer were only administrative directions for
the exercise of the pleasure in a reasonable manner and any
breach oi the regulations did not confer any right or give a cause
of action to the public servant, and (iv) that the regulations we.re
only directory and the non-compliance with the rules did not
invalidate the order of dismissal.
November 25.
I
680
SUPREME COURT REPORTS
(1961]
1960
Held, (per Sarkar, Subba Rao and Mudholkar, JJ.) that the
order of dismissal was illegal as it was based upon an enquiry
The State of Uttar held in violation of r. I of Para 486 of the Police RegulaPYadesh & Othet's tions.
v.
The facts alleged in the complaint made out a cognizable
Babu llam
offence under s. 405 Indian Penal Code against the respondent,
Upadhya
and the provisions of r. I of Para. 486 were applicable to it. A
Police Officer making a search of a person was 'entrusted' with
the money handed over by the person searched.
Rule III of Para. 486 did not deal with cognizable offences,
it dealt with offences falling only under s. 7 Police Act and to
non-cognizable offences. Rule III did not provide an alternative
procedure to that prescribed under r. I.
The position with regard to the tenure of public servants
and to the taking of disciplinary action against them under the
present Constitution was as follows:
(i) Every person who was a member of a public service
described in Art. 310 of the Constitution held office during the
pleasure of the President or the Governor.
(ii) The power to dismiss a public servant at pleasure was
outside the scope of Art. 154 and, therefore, could not be delegated by the Governor to a subordinate officer, and could be
exercised by him only in the manner prescribed by the Constitution.
(iii) This tenure was subject to the limitations or qualifications mentioned in Art. 311.
(iv) Parliament

## Text

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2 S.C.R. SUPREME COURT REPORTS
THE STATE OF UTTAR PRADESH
AND OTHERS
v.
BABU RAM UPADHYA
(P. B. GAJENDRAGADKAR, A. K. SARKAR,
K. SUBBA RAO, K. N. W ANCHOO and
J. R. MuDHOLKAR, JJ.)
679
Public Servant-Police Officer, dismissal of-Polict; Regulations, i~hether mandatory-Disregard of, if invalidates disciplinary
action--Autlwrities empow,orcd to take action-If exercise powers of
Governor-Police Act, r86r (V of r86r), s. 7-U. P. Police Regulations, 1\ara. 486-Constitution of India, Arts. r54, 309, 3ro, 3rr.
The respondent was a sub-Inspector of Police. A complaint
was received by the Superintendent of Police that the complainant was carrying currency notes of Rs. 650 in a bundle
when he was stopped by the respondent and his person was
searched, that the respondent opened the bundle of notes and
handed over the notes one by one to one Lalji, who was with
him and that Lalji returned the notes to him but on reaching
home he found the notes short by Rs. 2:;0.
Proceedings under 1 )
s. 7 of the Police Act were taken against the respondent on the ·
charge of misappropriation of Rs. 250 and he was dismissed from
service by an order of the Deputy Inspector General of Police.
The respondent filed a writ petition before the High Court challenging the order of the dismi,sal on the ground that the authorities had acted in violation of Rule I of Para. 486 of the U. P.
Police Regulation. This rule required that every information
received by the police relating to the commission of a cognizable
offence by a Police Officer shall be dealt with in the first place
under Ch. XIV, Code of Criminal Procedure. The High Court
held that the provisions of para. 486 of the Police Regulations
had not been observed and that the proceedings taken under
s. 7 of the Police Act were invalid and illegal and accordingly
quashed the order of dismissal. The appellant contended (i)
that the complaint <lid not make out any cognizable offence
against the respondent and r. I of Para. 486 was not applicable
in this case, (ii) that r. III of Para. 486 enabled the authorities
to initiate departmental proceedings without complying with the
provisions of r. I, (iii) that the Police Regulations made in exercise of the power conferred on the Government under the Police
Act delegating the power of the Governor to dismiss at pleasure
to a subordinate officer were only administrative directions for
the exercise of the pleasure in a reasonable manner and any
breach oi the regulations did not confer any right or give a cause
of action to the public servant, and (iv) that the regulations we.re
only directory and the non-compliance with the rules did not
invalidate the order of dismissal.
November 25.
I
680
SUPREME COURT REPORTS
(1961]
1960
Held, (per Sarkar, Subba Rao and Mudholkar, JJ.) that the
order of dismissal was illegal as it was based upon an enquiry
The State of Uttar held in violation of r. I of Para 486 of the Police RegulaPYadesh & Othet's tions.
v.
The facts alleged in the complaint made out a cognizable
Babu llam
offence under s. 405 Indian Penal Code against the respondent,
Upadhya
and the provisions of r. I of Para. 486 were applicable to it. A
Police Officer making a search of a person was 'entrusted' with
the money handed over by the person searched.
Rule III of Para. 486 did not deal with cognizable offences,
it dealt with offences falling only under s. 7 Police Act and to
non-cognizable offences. Rule III did not provide an alternative
procedure to that prescribed under r. I.
The position with regard to the tenure of public servants
and to the taking of disciplinary action against them under the
present Constitution was as follows:
(i) Every person who was a member of a public service
described in Art. 310 of the Constitution held office during the
pleasure of the President or the Governor.
(ii) The power to dismiss a public servant at pleasure was
outside the scope of Art. 154 and, therefore, could not be delegated by the Governor to a subordinate officer, and could be
exercised by him only in the manner prescribed by the Constitution.
(iii) This tenure was subject to the limitations or qualifications mentioned in Art. 311.
(iv) Parliament or the Legislature of States could not
make a law abrogating or modifying this tenure so as to impinge
upon the overriding power conferred upon the President or the
Governor under Art. 310, as qualified by Art. 31I.
(v) Parliament or the Legislatures of States could make a
law regulating the conditions of service of such a member which
included proceedings by way of disciplinary action, without
affecting the powers of the President or the Governor under Art.
310 read with Art. 311.
(vi) Parliament and the Legislatures aho could make a
Jaw laying down and regulating the scope and content of the
doctrine of "reasonable opportunity" e1nbodied in Art. 311 but
the said la\v was subject to judicial review.
(vii) If a statute could be made by Legislatures within
the foregoing permissible limits, the rules made by an authority
in exercise of the po\ver conferred thereunder would likewise be
efficacious within the said limits.
N. W. F. Province v. Suraj Narain, A.LR. r949 P. C. rr2,
Shenton v. Smith, (1895) A.C. 229, Gould v. Stuart, (1896) A.C.
575, Reilly v. The King, (1934) A.C. 176, Terrell v. Secretary of
State, (1953) 2 All E.R. 490, State of Bihar v. Abdul Majid, [1954)
S.C.R. 786, Parshotam Lal Dhingra v. Union of India, [1958]
•·-
2 S.C.R. SUPREME COURT REPORTS
681
S.C.R. 828, R. T. Rangachari v. Secretary of State for India, (1936)
1960
L.l<. 64 I.A. 40 and High Commissioner for India and High Commissi~ner for Pakistan v. I. M. Lall, (1948) L.R. 75 I.A. 225, refer-The State of Uttar
red to.
,
Prndesh & Others
The Police Act and the rules made thereunder constituted a
self-contained code providing for the appointment of police officers and prescribing the procedure for their removal.
Any
authority taking action under the Police Act or the rules made
thereunder must conform to the provisions thereof and if there
was any violation ol those provisions the public servant had a
right io challenge the order of the authority if the rules were
mandatory.
Paragraph 486 of the Police Regulations was
mandatory and not directory. The rules were made in the
interests of both the department and the police officers.
The
word used in para 486 was "shall" and in the context it could
not be read as "may".
Hari Vishnu Kamath v. Syed Ahmed Ishaque, [1958] S.C.R.
no4, State of U. P. v. Manbodhan Lal Srivastava, [1958] S.C.R.
533 and Montreal Street Railway Company v. Normandin, L.R.
(r9r7) A.C. 170, referred to.
Subject to the overriding power of the President or the
Governor under Art. 310, as qualified by Art. 3II, rules governing disciplinary proceeding could not be treated as administrative directions, but had the same effect as the provisions
of the statute whereurider they were made, in so far as they
were not inconsistent with the provisions thereof. The Governor
did not exercise his pleasure through the officers specified in s. 7
of the Police Act, and the Governor's pleasure could not be
equated with the statutory power of the officers specified. An
inquiry under the Act had to be made in accordance with the
provisions of the Act and the rules made thereunder.
R. T. Rangachari v. Secretary of State for India, L.R. 64 I.A.
40, High Commissioner for India and High Commissioner for Pakistan v. I. M. Lall, (1948) L.R. 75 I.A. 225, R. Venkata Rao v.
Secretary of State for India, (1936) L.R. 64 I.A. 55, S. A. Venkataraman v. Union of India, [1954] S.C.R. n50 and Kliem Chand v.
The Union of India, [1958] S.C.R. 1080, referred to.
Per Gajendragadkar and Wanchoo. JJ.-The provisions of
para 486 were merely directory and a non-compliance therewith
did not invalidate the disciplinary action taken against the respondent.
All public servants, other than those excepted expressly by
the Constitution, held office during the pleasure of the President
or the Governor, and no Jaw or rule framed under Art. 309 or
Art. 154(2)(b) could cut down the content of the pleasure tenure
in Art. 310 subject to Art. 3rr: The Police Act could not stand
higher than a law passed under Art. 309 or Art. 154(2)(b) and
could not cut dowu the content of the pleasure tenure in Art. 310.
v.
Babu Ram
Upadhya
682
SUPREME COURT REPORTS
[1961]
c960
The Police officers held office during the pleasure of the Governor· and the only protection they could claim was the two
Tho State of Uttar guarantees contained in Art. 311.
Pradesh <~ Othm
The rules framed under s. 7 Police Act would be of two
v.
kinds, namely (1) those which defined the jurisdiction of the
Bab" Rani
four grade-s of officers specified in s. 7 to inflict particular kind
Upadhya
of punishment on particular police officers of the subordinate
ranks~----such rules would be mandatory but they could not go
against the provisions of Art 3rr, and (2) procedural rules. The
procedural rules could be of two kinds: ,;) those that prescribed
the manner in which the guarantee contained in Art. 3II(2) may
be carried out-such rules would he mandatory, and (ii) other
merely procedural rules-they conk! only be directory.
The power of the Governor to dismiss was executive power
of the State and could be exercised under Art. 154(1) by the
Governor himself directly or indirectly through officers subordinate to him.
The officers specified in s. 7 of the Police Act were exercising the powers of the Governor to dismiss at pleasure and their
powers were subject to the same limitations to which the Governor was subject. Whether it was delegation by the Governor
himself or whether it was delegation by law under Art 154(2)1.b)
or by the existing law, which must be treated as analogous to a
law under Art. l54(2)(b), the officer exercising the power of dismissal was only indirectly exercising the Gove-rnor's power to
dismiss at pleasure.
His order also was subject to the two fetters under Art. 311 and could not be subjected to any more fetters
by procedural rules other than those framed for carrying out the
objects of Art. 3rr(2).
R. Ve11kata Rao v. Secretary of State for India in Council,
[1936] 64 I.A. 55, referred to.
Paragraph 406 was not meant for the purpose of carrying
out the object of Art. 311(2) and could not be mandatory and
could not add a further fetter on the exercise of the power to
dismiss at the pleasure of the Governor over and above the fetters contained in Art. 311. This rule was only meant to gather
materials for the satisfaction of the authority concerned, whether to take action or not. As such para 486 \vas merely directory and a failure to comply therewith strictly or otherwise did
not vitiate the disciplinary action.
CIVIL APPELLATE
JURISDICTION:
Civil Appeal
No. 119 of 1959.
Appeal by special leave from the judgment and
order <lated January 9, 1958, of the Allahabad High
Court (Lucknow Bench), Lucknow, in Civil Misc.
Application No. 115 of 1955.
2 S.C.R. SUPREME COURT REPORTS
683
C. B. Agarwala and 0. P. Lal, for the appellants.
1960
G. s. Pathak, Achru Ram, s. N. Andley, Rameshwar The State of Ulla•
Nath, J.B. Dadachanji and P. L. Vohra for the res- Pradesh & Others
pondent.
.
Babuv.Ram
1960. November, 25.
The Judgment of Sarkar,
Upacihya
Subba Rao and Mudholkar, JJ., was delivered by
Subba Rao, J., and that of Gajendragadkar and Wanchoo, JJ., was delivered by Wanchoo, J.
·
SuBBA RAo, J.-This is an appeal by special leave
S11bba Rao J.
against the judgment of the High Court of Judicature
at Allahabad, Lucknow Bench, allowing the petition
filed by the respondent under Art. 226 of the Constitution.
The respondent was appointed a Sub-Inspector of
Police in December, 1948, and was posted at Sitapur
in June, 1953. On September 6, 1953, the respondent
went to village l\fadhwapur in connection with an
investigation of a case of theft. On the evening of
the said date when he was returning, accompanied by
one Lalji, an ex-patwari of Mohiuddinpur, he saw one
Tika Ram coming from the side of a canal and going
hurriedly towards a field.
As the movements of Tika
Ram appeared to be suspicious and as he was carrying
something in the folds of his dhoti, the respondent
searched him and found a bundle containing currency
notes. The respondent counted the currency notes
and handed them over to Lalji for being returned to
Tika Ram, who subsequently got them and went his
way.
Subsequently when Tika Ram counted the
currency notes at his house, he found that they were
short by Rs. 250. Tika Ram's case is that the bundle
when taken by the respondent contained notes of the
value of Rs. 650, but when he counted them in his
house they were only of the value of Rs. 400. On
September 9, 1953 Tika Ram filed a complaint to the
Superintendent of Police, Sitapur, to the effect that the
respondent and one Lalji had misappropriated a sum
of Rs. 250.
There is dispute in regard to the interpretation of the complaint. On receipt of the said complaint, the Superintendent of Police made enquiries
684
SUPREME COURT REPORTS
(1961)
I96o
and issned a notice to the respondent to show cause
.
-- u
why his integrity certificate should not be withheld,
The Stale of
liar
h' h th
d
b ·
d h'
1
'
Pradesh e;. Othm upon w IC
e respon ent su m1tte
is exp anat10n
v.
on October 3, 1953. Thereafter the Superintendent of
Babu 11am
Police forwarded the file of the case to the Deputy
Upadhya
Inspector General of Police, Central Range, U. P.,
who directed the Superintendent of Police to take
Subba Rdo f. proceedings under s. 7 of the Police Act against the
respondent. The departmental proceedings were started against the respondent; on November 2, 1953, a
charge-sheet was served upon the respondent under
s. 7 of the Police Act stating that there were strong
reasons to suspect that the respondent misappropriated a sum of Rs. 250 from the purse of Tika Ram; the
respondent filed his explanation to the charge made
against him; and ultimately the Superintendent of
Police held an enquiry and found on the evidence that
the respondent was guilty of the offence with which
he was charged. On January 2, 1954, the Superintendent of Police issued another notice to the respondent to show cause why he should not be reduced to
the lowest grade of Sub-Inspector for a period of three
years. In due course the respondent showed cause
against the action proposed to be taken against him
. on a consideration of which the Superintendent of
Police, Sitapur, by his order dated January 16, 1954
reduced the respondent to the lowest grade of SubInspector for a period of three years. When this
order came to the notice of the D. I. G., U. P., on a
consideration of the entire record, he came to the conclusion that the respondent should be dismissed from
service and on October 19, 1954 he made an order to
that effect.
On February 28, 1955 the Inspector
General of Police confirmed that order; and the revision filed by the respondent against that order to the
State Government was also dismissed in August 1955.
Thereafter the respondent filed a petition under Art.
226 of the Constitution before the High Court of Judicature at Allahabad, Lucknow Bench, for quashing
the said orders and the same was heard by a division
bench consisting of Randhir Singh and Bhargava, JJ.
The learned judges held that the provisions of para.
' <
2 S.C.R. SUPREME COURT REPORTS
685
486 of the Police Regulations had not been' observed
r96o
and, therefore, the proceedings taken under s. 7 of the Th 51 -, - 1 Utt
Police Act were invalid and illegal. On that finding, Pr:des~ e;. Othe~:
they quashed the impugned orders; with the result
v.
that the order dismissing the respondent from service
Babu Ram
was set aside. The State Government, the Deputy
Upadhya
Inspector General of Police, Lucknow, and the InsSubba Rao J.
pector General of Police, Uttar Pradesh, Lucknow,
have preferred the. present appeal against the said
order of the High Court.
We shall now proceed to consider the various contentions raised by learned counsel in the order they
were raised and argued before us.
At the outset Mr. C. B. Agarwala, learned counsel
for the appellants, contended that there was no breach
of the provisions of para. 486 of the Police Regulations. If this contention be accepted, no other question arises in this case; therefore, we shall deal with
the same.
The material part of para. 486 of the Police Regulations reads thus:
"When the offence alleged against a police officer
amounts to · an offence only under section 7 of the
Police Act, there can be no magisterial inquiry under
the Criminal Procedure Code. In such cases, and in
other cases until and unless a magisterial inquiry is
ordered, inquiry will be made.under the direction of
the Superintendent of Police in accordance with the
following rules:
I. Every information received by the police relating to the commission of a cognizable offence by a
police officer shall be dealt with in the first place
under Chapter XIV, Criminal Procedure Code, according to law, a case under the appropriate section being
registered in the police station concerned ............... "
This provision expressly lays down that every information received b~ the police relating to the commission of a cognizable offence by a police officer shall be
. dealt with in the first place under Ch. XIV of the Criminal Procedure Code. This provision will not apply
if the information received by the police does not
87
686
SUPREME COURT REPORTS
[1961]
1960
relate to the commission of a cognizable offence.
-
Learned counsel contends that the information receivThe State of Utlar d ·
h
t
d
t
1 t
cc
Pradesh &- Othm e mt e presen case oes no re a e to any 011en~e
v.
committed by the respondent, much less to a cogmBabu Ram
zable offence. This is a point raised before us for the
Upadhya
first time. This does not find a place even in the
statement of case filed by the appellants. In the High
Subba Rao f. Court it was not contended that the information did
not disclose any offence committed by the respondent.
Indeed, it was common case that the information disclosed an offence committed by the respondent, but it
had been contended by the appellants that the misappropriation of the part of the money amounted to
an offence under s. 403 of the Indian Penal Code,
which is not a cognizable offence; and_ it was argued
on behalf of the respondent that it amounted to an
offence under s. 409 of the Indian Penal Code. The
learned judges accepted the contention of the respondent. Even so, it is said that whatever might have
been the contentions of the parties, the information
given by Tika Ram to the Superintendent of Police
clearly disclosed that no offence was alleged to have
been committed by the respondent and that this Court
would, therefore, be justified, even at this very late
stage, to accept the contention of the appellants. But
the contents of the said information do not in any
way support the assertion. Paragraph 3 of the application given by Tika Ram to the Superintendent of
Police, Sitapur, reads thus:
"That on Sunday last dated 6th September, 1953
the applicant· had with him the currency notes of
Rs. 650. The opposite party as well as Shri Babu
Ram met the applicant on the west of Rampur
near the Canal. The opposite-party said to the SubInspector "This man appears to be clad in rags but is
possessed of considerable money."
After saying this
the person of tho applicant was searched. The SubInspector, having opened the bundle of notes, handed
over the (notes) one by one to the opposite party."
This statement clearly indicates that either the SubInspector or both the Sub-Inspector and Lalji searched
the person of Tika Ram, that the Sub-Inspector took
2 S.C.R. SUPREME COURT REPORTS
687
the bundle of notes and handed the same over, one by
z96o
one, to Lalji for being returned to ;he applicant, and The State of Uttar
that out of Rs. 650 a sum of Rs. 2o0 was not returned Pradesh & Others
to him. The facts alleged make out an offence against
v.
both the Sub-Inspector as well as Lalji. The mere
Bab11 Ram
fact that th~ respondent is not shown as one of the
upadhya
opposite parties in the application does not affect the
•
·
h
1
•
Subba Rao J.
question, for the information given m t e app icat10n
imputed the commission of an offence to both the respondent and Lalji. The notice issued by the Superintendent of Police on November 2, 1953 to the res~
pondent also charges him wit.h an offence of misappropriation. It is stated that the said notice only
says that the Superintendent of Police had good· reasons to suspect that the respondent misappropriated
the sum of money and that it does not aver that he
committed the offence of misappropriation. But what
matters is that the Superintendent of Police also
understood from the ·information given and the enquiry conducted by him that the respondent had committed the offence. Reliance is placed upon paragraph 3 of the writ petition wherein the respondent
herein stated that Tika Ram filed a complaint against
Lalji and not against the respondent. As a fact that
is correct in the sense that the respondent was not
shown in that application as the opposite-party though
in the body of that application definit"e allegations were
made against the respondent. In the counter-affidavit filed by the Superintendent of Police on behalf of
the State it was clearly averred that on September 9,
1953 Tika Ram appeared before him and filed a petition to the effect that one Lalji and the respondent
had misappropriated a sum of Rs. 250.
Whatever
ambiguity there might have been in the information
-we do not find any-this allegation dispels it and it
is not open to the appellants at this stage to contend
t.hat the petition did not disclose any offence against
the respondent. In the circumstances, we must hold
that. the information received by the police related to
the commission of an offence by the respondent.
, Even so, it is contended that the said offence is not
a cognizable offence. It is said that there was no
688
SUPREME COURT REPORTS
[1961]
r96o
entrustment made by Tika Ram to the respondent and
The Stale of.Ulla• that, th~refore, the offence _did _not fall 1;1nder s. 409 of
Pradesh &- Olhm the Indian Penal Code, w h10h 18 a cogmzable offence,
v.
but only under s. 403 of the Indian Penal Code, which
Babu Rain
is not a cognizable offence. Section 405 of the Indian
upadhy•
Penal Code defines "criminal breach of trust" and s.
409 thereof prescribes the punishment for the criminal
Subba Rao f. breach of trust by a public servant. Under s. 405 of
the Indian. Penal Code, "Whoever, being in any
manner entrusted with property, or with any dominion
over property, dishonestly misappropriates or converts
to his own use that property, or dishonestly uses or
disposes of that property in violation of any direction
of law prescribing the mode in which such trust is to
be discharged, or of any legal contract, express or
implied, which he has made touching the discharge of
such trust, or wilfully suffers any person so to do,
commits "criminal breach of trust". To constitute an
offence under this section, there must be an entrustment of property and dishonest misappropriation of
it. The person entrusted may misappropriate it himself, or he may wilfully suffer another person to do so.
In the instant case the respondent, being a police
officer, was legally entitled to search a person found
under suspicious circumstances; and Tika Ram in
handing over the bundle of notes to_ the police officer
must have done so in the confidence that he would get
back the notes from him when the suspicion was
cleared. In these circumstances, there cannot be any
difficulty in holding that the currency notes were
alleged to·have been handed over by Tika Ram to the
respondent for a specific purpose, but were dishonestly
misappropriated by the respondent or at any rate he
wilfully suffered Lalji to misappropriate the same.
We, therefore, hold that if the currency notes were
taken by the respondent in discharge of his duty for
inspection and return, he was certainly entrusted with
the notes within the meaning of s. 405 of the Indian
Penal Code. If so, the information discloses a cognizable offence.
We reject the first contention.
The second objection of learned counsel for the
appellants is that sub-para. (3) of para. 486 of the
2 S.C.R. SUPREME COURT REPORTS
689
Police Regulations enables the appropriate police
r96o
auth!>rity to i~itia~ the depa~t~ental proceeding The State of Uttar
without complymg with the prov1s1onsofsub-para. (!)Pradesh &- Others
of para. 486. The relevant portion of para. 486 of the
v.
Police Regulations reads:
·
Babu Ram
"When the offence alleged against a police officer
upadhya
amounts to an offence only under section 7 of the
Police Act, there can be no magisterial inquiry under Subba Rao f.
the Criminal Procedure Code. . In such cases, and in
other cases until and unless a magisterial inquiry is
ordered, inquiry will be made under the direction of
the Superintendent of Police in accordance with the
following rules: ......... "
Rule I relates to a cognizable offence, r. II to a noncognizable offence, including an offence under s. 29 of
the Police Act, and r. III to an offence under s. 7 of
the Police Act or a non-cognizable offence, including
an offence under s. 29 of the Police Act. Rule III
says:
"When a Superintendent of Police sees reason to
take action on information given to him, or on his
own knowledge or suspicion, that a police officer subordinate to him has committed an offence under section 7 of the Police Act or a non-cognizable offence
(including an offence under section 29 of the Police
Act) of which he considers it unnecessary at that
stage to forward a report in writing to the District
Magistrate under rule II above, he will make or cause
to be made by an officer senior in rank to the officer
charged, a departmental inquiry sufficient to test the
truth of the charge. On the conclusion of this inquiry
he will decide whether further action is necessary, and
if so, whether the officer charged . should be departmentally tried, or whether the District Magistrate
should be moved to take cognizance of the case under
the Criminal Procedure Code ... "
The argument is that the words "an offence under s. 7
of the Police Act" take in a cognizable offence and
that, therefore, this rule provides for a procedure
alternative to that.prescribed under r. I. We do not
think that this contention is sound. Section 7 of the
Police Act empowers certain officers to dismiss, suspend
690
SUPREME COURT REPORTS
[1961]
1960
or reduce any police officer of the subordinate rank
The State of Uttar whom they.shall think remiss or negligent in the_ disPiadesh .s. Others charge of his duty, or unfit for the same. The grounds
v.
for punishment are comprehensive: they may take in
Babu Ram
offences under the Indian Penal Code or other penal
upadhya
statutes. The commission of such offences may also
be a ground to hold that an officer is unfit to hold his
Subbn Rao j.
ffi
A
o ce.
ction under this section can, therefore, be
taken in respect of, (i) offences only under s. 7 of the
Police Act without involving any cognizable or noncognizable offences, that is, simple remissness or negligence in the discharge of duty, (ii) cognizable offences,
and (iii) non-cognizable offences. Paragraph 486 of the
Police Regulations makes this clear. It says that when
the offence alleged against a police officer amounts to
an offence only under s. 7 of the Police Act, there can
be no magisterial inquiry under th<;l Criminal Procedure
Code. This part of the rule applies to an offence only
under s. 7 of the Police Act i. e., the first category
mentioned above. Rule I refers to a cognizable offence
i. e., the second category, rule II to a non-cognizable
offence i. e., the third category, and rule III applies to
an offence under s. 7 of the Police Act and to a noncognizable offence. Though the word "only" is not
mentioned in rule III, the offence under s. 7 of the
Police Act can, in the context, mean an offence only
under s. 7 of the said Act i.e., an offence falling under
the first category. So understood, the three rules can
be reconciled. We, therefore, hold that, as the offence
complained of in the present case is a cognizable
offence, it falls under rule I and not under rule III.
'Ve, therefore, reject this contention.
The third contention advanced by learned counsel
for tho appellants raises a constitutional point of considerable importance. The gist of the argument may
be stated thus: In England, the service under the
Crown is held at the Crown's pleasure, unless the employment is for good behaviour or for a cause. But
if there is a statute prescribing the terms of service
and the mode 0f dismissal of the servant of the
Crown, the statute would control the pleasure of the
Crown. In India, the Constitution as well as the
2 S.C.R. SUPREME COURT REPORTS
691
earlier Constitution Acts of 1915, as amended in 1919,
I960
and 1935 embodied the incidents of "tenure at plea- The Sta-;.-;1 Uttar
sure" of His Majesty, or the President or the Gover- Pradesh .s. Others
nor, as the case may be, but did not empower the
v.
Legislatures under the earlier Acts and the Parliament
Babu Ram
and the Legislatures under the Constitution to make
upadhya
a law abrogating or modifying the said tenure; thereSubba Rao J.
fore, any law made by appropriate authorities conferring a power on any subordinate officer to dismiss a
servant must be construed not to limit the power of
His Majesty, the President or the Governor, as the
case may be, but only to indicate that they would express their pleasure only through the said officers.
The rules made in exercise of a power conferred on a
Government under a statute so delegating the power
to a subordinate officer can only be administrative
directions to enable the exercise of the pleasure by
the concerned authorities in a reasonable manner and
that any breach of those regulations cannot possibly
confer any right on, or give a cause of action to, the
aggrieved Government servant to go to a court of law
and vindicate his rights.
Mr. Pathak, learned counsel for the respondent, in
countering this argument contends that the constitution Acts in India embodied the incidents of the
tenure of the Crown's pleasure in the relevant provisions and what the Parliament can do in England,
the appropriate Legislatures in India also can do,
that is, "the tenure at pleasure" created by the Constitution Acts can be abrogated, limited or modified
by law enacted by the appropriate legislative bodies.
Alternatively he contends that even if the Police Act
does not curtail the tenure at pleasure, the Legislature
validly made that law and the Government validly
made statutory rules in exercise of the powers confered under that Act and that, therefore, the appropriate
authorities can only dismiss the respondent in strict
compliance with the provisions of the Act and the
Rules made thereunder.
To appreciate the problem presented and to afford
a satisfactory answer it would be convenient to consider the relevant provisions. The Act we are concerned with in this case is the Police Act, 1861 (Act V
692
SUPREME COURT REPORTS
[1961]
'960
of 1861). Its constitutional validity at the time it was
The State of Uttar ma.de wa~ no~ 9uestioned. ynder s. ~ of the Police
r.adesh & Others Act, as it origmally stood, the a.ppomtment of a.11
v.
police officers other than those mentioned in s. 4 of
Babu Ram
this Act shall, under such rules as the local Governupadhy•
ment shall from time to time sanction, rest with the
Subba Rao 1. Inspector-General, Deputy Inspectors-Genera.I, Assistant Inspectors-General and District Superintendents
of Police, who may, under such rules as aforesaid, at
any time, dismiss, suspend or reduce any police-officer." That section was substituted by the present
section in 1937 and later on some appropriate amendments were made to bring it in conformity with the
Constitution. Under the amended section, "Subject
to such rules as the State Government may from time
to time make under this Act, the Inspector-Genera.I,
Deputy Inspectors-Genera.I, Assistant Inspectors-General and District Superintendent of Police may a.t any
time dismiss, suspend or reduce any police officer of
the subordinate ranks whom they shall think remiss
or negligent in the discharge of his duty, or unfit for
the same". In exercise of the powers conferred on
the Government by s. 46 of the Act, the Government
made the U. P. Police Regulations prescribing the
procedure for investigation and inquiry. We shall
deal with the Regulations at a later stage.
In the Government of India. Act, 1915, as amended
by the Act of 1919, for the first time, the doctrine of
"tenure at pleasure" was introduced by s. 96-B. In
exercise of the power conferred under sub-s. (2) certain classification rules were framed by the local
Government. This Act was repealed by the Government of India Act, 1935, and the section corresponding to s. 96-B was s. 240(1) in the latter Act. Section
241(2) empowered, except as expressly provided by
the Act, the Governor-General and the Governor to
prescribe the conditions of service of the servants
they were empowered to appoint.
The main difference between the Act of 1919 and
,.
that of 1935 was that in the former Act there was
only one limitation on the Crown's pleasure, namely,
that no person in the service might be dismissed by
2 S.C.R. SUPREME COURT REPORTS
693
an authority subordinate to that by which he was
r960
appointed, whereas in the latter Act a second limita-
-
tion was imposed, namely, that no such person should PTkcdStahte ,,,010ut1ar
b
d.
·
d
d · d ·
nk
t"l h
h d b
ta es
"'"
lhers
e
ism1sse
or re uce
in ra
un i
e
a
een
v.
given a reasonable opportunity of showing cause
Babu Ram
against the action proposed to be taken in regard to
upadhya
him: see s. 240, sub-ss. (2) and (3).
Another difference between the said two Acts was that while under
Subba Rao J.
the former Act all the services were placed in the
same position, under the latter Act special provision
was made for the police force prescribing that the
conditions of service of the subordinfl,te ranks of the
various police forces should be such as might be determined by or under the Acts relating to those forces
respectively-vide s. 243. By the Constitution, the
Act of 1935 was repealed, and, with certain changes
in phraseology, els. (1) and (2) of Art. 310 took the
place of sub-ss. (1) and (4) of s. 240 respectively, and
Art. 309 took the place of s. 241(2).
Under Art. 313,
"Until other provision is made in this behalf under
thif'I Constitution, all the laws in force immediately
before the commencement of this Constitution and
applicable to any public service or any post which
continues to exist after the commencement of this Constitution, as an all-India service or as service or post
nnder the Union or a State shall continue in force so
far as consistent with the provisions of this Constitution". The result· is that the Police Act and the
Police Regulations, made in exercise of the powers
conferred on the Government under that Act, which
were preserved under s. 243 of the Government of
India Act, 1935, continue to be in force after the Constitution so far as they are consistent with the provisions of the Constitution.
It is common case, as the contentions of learned
counsel disclose, that the Act and the Regulations
~
framed thereunder were constitutionally valid at the
inception and that they are also consistent with the
provisions of the Constitution. The difference between the two contentions lies in the fact that according to one His Majesty's pleasure cannot be modified
' ·
88
I
694
SUPREME COURT REPORTS
[1961]
'960
by a statute, according to the other it is subject to
Ihe state of Uttar statut.ory .provisions. The relevant provisions of the
Pradesh & Others Const1tut10n read thus:
v.
Article 309: "Subject to the provisions of this
Bab.u Ram
Constitution, Acts of the appropriate Legislature may
upadhya
regulate the recruitment, and conditions of service of
persons appointed, b public services and posts in
Subba Rao J. connection with the affairs of the Union or of any
State:
Provided that it shall be competent for the President or such person as he may direct in the case of
services and posts in connection with the affairs of
the Union, and for the Governor of a State or such
person as he may direct in the case of services and
posts in connection with the affairs of the State, to
make rules regulating the recruitment, and the conditions of service of persons appointed, to such services
and posts until provision in that behalf is made by or
under an Act of the appropriate Legislature under
this article, and any rules so made shall have effect
subject to the provisions of any such Act."
Article 310:
"Except as expressly provided by
this Constitution, every person who is a member of a
defence service or of a civil service or holds any post
connected with defence or any civil post under the
Union holds office during the pleasure of the President, and every person who is a member of a civil
service of a State or holds any civil post under a State
holds office during the pleasure of the Governor of the
State."
Under Art. 309 the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to public services. Under Art. 310
every person who is a member of a public service described therein holds office during the pleasure of the
President or the Governor, as the case may be. The
words "conditions of service" in Art. 309 in their
comprehensive sense take in the tenure of a civil servant: see N. W. F. Province v. Suraj · Nara·in (').
Therefore, "the tenure at pleasure" is also one of the
conditions of service. But Art. 309 opens out with a
(1) A.I.R. (1949) P.C. ""
•
2 S.C.R. SUPREME COURT REPORTS
695
restrictive clause, namely, "Subject to the provisions
r96o
of this Constitution", and if there is no restrictive Th 51 -, - 1 Utt
clause in Art. 310, there cannot be any difficulty in Pr:des~ e;. Othe::
holding that Art. 309 is subject to the provisions of
v.
Art 310; with the result that the power of the LegisBabu Ram
lature to lay down the conditions of service of perupadhya
sons appointed to public services would be subject to
"the tenure at pleasure" under Art. 310. In that event,
Subba Ran f.
any law made by the Legislature could not affect the
over-riding power of the President or the Governor,
as the case may be, in putting an end to the tenure at
their pleasure.
Would the opening words of the
clause in Art. 310, namely, "Except as expressly provided by this Constitution'', make any difference in
the matter of interpretation? It should be noticed
that the phraseology of the _f'laid clause in Art. 310 is
different from that in Art. 309. If therl') is a specific
provision in some part of the Constitution giving to a
Government servant a tenure different from that provided for in Art. 310, that Government servant is ex.
eluded from the operation of Art. 310. The said words
refer, inter alia, to Arts. 124, 148, 218 and 324 which
provide that the Judges of the Supreme Court, the
Auditor General, the Judges of the High Courts and
the Chief Election Commissioner shall not be removed
from their offices except in the manner laid down in
those Articles. If the provisions of the Constitution
specifically prescribing different tenures were excluded
from Art. 310, the purpose of that clause would be exhausted and thereafter the Article would be free from
any other restrictive operation. In that event, Arts.
309 and 310 should be read together, excluding the
opening words in the latter Article, namely, "Except
as expressly provided by this Constitution". ·Learned
counsel seeks to confine the operation of the opening words in Art.