Suresh Chandra v. Himangshu Kumar Roy And Others

1. This is an application under Article 226 of the Constitution for a Writ of Certiorari for quashing the order dated 6-5-1950, passed by respondent 2 in certain departmental proceedings taken against the petitioner.

2. It appears that the petitioner was a member of the clerical establishment in the Bengal Police for the last 23 years and was governed by the Bengal Subordinate Service (Discipline and Appeal) Rules, 1936. It is stated by the learned counsel appearing for the petitioner that the petitioner was appointed a clerk in the Bengal Police some time in April 1927 by the Deputy Inspector General, Backergunj range, and the petitioner was given a letter of appointment according to the service rules of the Police Service. This fact of the petitioner being appointed by the Deputy Inspector General of Police, Backergunj, is, however, not stated in the petition but it appears that for the purpose of establishing this fact before the Court the petitioner's solicitor by a letter dated 9-4-1951 called upon the respondents' solicitor to produce the Police Gazette dated 13-1-1928, and the service book of the petitioner at the hearing but none of these documents have been produced on behalf of the respondents. The same request was repeated at the hearing but with no effect. It is alleged in the petition that untit 17-12-1947, the petitioner used to work in the Force Department of the Inspector General of Police office along with one Upananda Mukherjee and one Bolai Chand Mukherji.

3. The Inspector General of Police office is divided into three departments, (1) The Intelligence Branch department which operates from 13, Lord Sinha Road, (2) Force Department and (3) the Budget Department which operates at the Writers Buildings.

4. Until 17-12-1947 the petitioner was an Assistant in the Force Department, while the said Upananda was in charge as the Assistant Inspector General of Police and the said Bolai was his Head Assistant. The said Bolai Chand who had as long a service to his credit as the petitioner is alleged to have entertained feelings of jealousy towards the petitioner as likely rival to the post of Superintendent in the Inspector General's office. The said Upananda is alleged to have been openly hostile to the petitioner, as the petitioner objected to the transfer and promotion of one Tarananda a brother of the said Upananda some time in 1947 and also for other reasons.

5. On 17-12-1947, the petitioner was transferred to the Intelligence Branch office at Lord Sinha Road as an Assistant. Respondent 2 was the Special Superintendent and respondent 1 was the Special Assistant in that office.

6. On 25-8-1947, one Amulya Choudhury made an application to the Inspector General of Police for re-appointment in the Police Force. On 1-12-1947 the said Amulya made a further application to the same effect. On 16-12-1947 both Bolai and Upananda endorsed the second application of Amulya holding out hopes of reappointment. On 20-12-1947, the said Amulya at the instigation of Upananda and Bolai and in conspiracy with them falsely made a complaint to the Deputy Superintendent of Police, anti corruption department, Government of West Bengal, against the petitioner falsely alleging that the petitioner had promised to secure the re-appointment of the said Amulya provided Amulya paid a bribe to the petitioner of a sum of Rs. 50/-.

7. On 5-1-1948, the said Bolai endorsed the first petition of Amulya dated 25-8-1947, keeping the question of his re-appointment pending.

8. On 13-1-1948, the petitioner was suspended with effect from 22-12-1947, under R. 7, Bengal Subordinate Service Rules.

9. On 26-5-1948, the said Upananda granted sanction for the prosecution of the petitioner under S. 161, Penal Code, although he was not the proper authority to grant such sanction.

10. On 3-12-1948, the petitioner was convicted by the learned Magistrate of Howrah for an offence under S. 420, I.P.C The Magistrate held that the charge for bribery was not proved. The petitioner appealed to the Sessions Judge, Howrah, who disbelieved the prosecution story completely and acquitted the petitioner of all the charges on 27-1-1949.

11. Thereafter between 19-4-1949 and 6-5-1950, respondents 1 and 2 held a departmental enquiry against the petitioner in respect of the identical charges on which the petitioner was acquitted and on 6-5-1950, respondent 2 found the petitioner guilty of the alleged offence of dishonesty and ordered his dismissal from service. Prior to that date respondent 1 also came to conclusion that the petitioner had been so guilty and recommended his dismissal on 18-4-1950.

12. The petitioner challenges the findings and orders of the respondents as dishonest perverse and against the weight of evidence. It is stated in the petition that the departmental enquiry is not warranted by law and the respondents acted without jurisdiction in conducting it. (Para 19 of the petition). The portion of the evidence given by the said Amulya at the enquiry has been set out in the petition and it appears therefrom that Amulya admitted before the enquiring officer that the alleged bribe of Rs. 10/- said to have been paid to the petitioner was not paid by way of bribe but it was an amount which Amulya had taken by way of loan from the petitioner and which he repaid to the petitioner later on.

13. In the circumstances the petitioner moved this Court for the reliefs stated above and also for certain other directions and reliefs but this Court on 30-1-1951, issued a rule nisi only for the quashing of the departmental proceedings and the orders made in relation thereto.

14. Respondent 2 has affirmed an affidavit in opposition in these proceedings dated 27-2-1951. It is stated in this affidavit that being directed by the Inspector General of Police of West Bengal on 2-5-1949 respondent 1 drew up charges against the petitioner for holding the departmental enquiry into such charges. The charges drawn up were placed before respondent 2 and were approved by him. It is pointed out by setting out the different dates and the events that took place on such dates that the petitioner was repeatedly given opportunities to defend himself against the charges drawn up against him and every facility was afforded to the petitioner for the purpose. The petitioner, however, did not avail himself of such opportunities and ultimately the enquiry had to be held in his absence and respondent 1 after having considered the materials, papers and events which were produced before him at the departmental enquiry made his report on 18-4-1950 recommending dismissal of the petitioner from service. The petitioner was thereafter supplied with a copy of the findings of respondent 1 and was asked to show cause by respondent 2 why he should not be dismissed. The petitioner did make a representation on 3-5-1950 and it was alter considering and scrutinizing the papers and the report of the departmental enquiry and the explanation of the petitioner that respondent 2 came to the conclusion that the petitioner should be dismissed from service and ordered his dismissal on 6-5-1950.

15. In the affidavit in reply filed by the petitioner on 12-3-1951, it is stated that the petitioner was advised not to make any statement or commitments or adduce any evidence with regard to the same in the departmental enquiry started by the respondents and he was advised only to confine himself to item 4 of the charges drawn up against him and to adduce evidence on such charge. As stated above, however, the petitioner did not adduce any evidence in the enquiry conducted by the respondents.

16. It appears to me that the petitioner was given reasonable opportunity of showing cause against the action proposed to be taken in regard to him in the departmental enquiry and he cannot make any grievance on that score. See — ‘High Commissioner for India v. I.M Lall’, (1948) 10 FCR 44 (PC) at p. 64 per Lord Thankerton. The petitioner also wanted to rely on a supplementary affidavit in reply affirmed by him on 6-4-1951, but this was objected to by the learned counsel for the respondents and I have rejected the said affidavit.

17. The main contention of Mr. R. Chaudhuri, the learned counsel for the petitioner, is that the order of dismissal having been passed by an officer not competent to pass it the order must be held to have been made without jurisdiction and should, therefore, be quashed in these proceedings.

18. Rule 4(a) of the Police Regulations, Bengal, 1915, is as follows:

“Appointments of lower grade clerks will also be made by the Deputy Inspector General of the Range on the recommendation of the Superintendent of Police.”

19. Rule 7:

“Every person appointed as a ministerial officer shall receive a letter of appointment under the signature of the officer appointing him and the appointment shall be notified in the Police Gazette.”

20. As I have pointed out before, the Police Gazette & the Service Records Book have been kept back by the respondents and as it is evident from para 1 of the petition that the petitioner was appointee as a lower grade clerk 23 years ago i.e, some time in 1927 or 1928, it must be presumed that he was appointed in terms of R. 4 by the Deputy Inspector General of the Range as stated by the learned counsel for the petitioner.

21. Mr. Chaudhuri has also referred me to the relevant Rules of the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936, by which the petitioner's service is admittedly governed. Rules 8 and 9 of the said rules lay down ranks of the officers who are competent to impose penalties upon the members of the services as specified in the schedule annexed to the rules but it is clear from those rules that no officer may be removed or dismissed by an authority subordinate to that by which he was appointed.

22. It may be noted in this connection that Article 311, Constitution of India, is also to the same effect. The Article is as follows:

“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.”

23. Mr. Chaudhuri has also referred me to Rule 10(1) which provides that no officer can be dismissed or removed from service unless he has been given an adequate opportunity of making any representation that he may desire to make and such representation if any has been taken into consideration before the order is passed. Rule 10(11) enjoins that the authority imposing the penalty under these rules shall maintain or cause to be maintained a record showing the allegations upon which he proceeded against the officer penalised, the officer's representation, if any, and the evidence taken, if any, the recital of the Officer's previous character as recorded in his service book or office records, the findings and the grounds thereof.

24. Rules 11 to 15 show that an officer against whom an action is taken is entitled to prefer an appeal to the higher authority. Rule 24 provides that except in very special circumstances no pleader or agent should be allowed to appear either on behalf of Government or the accused either before the officer who conducts the enquiry or any officer to whom appeal may be made.

25. Mr. Chaudhuri submits that the aforesaid rules clearly show that these departmental proceedings are in the nature of judicial or quasi-judicial proceedings and certiorari does lie to quash such proceedings or orders if there is want or excess of jurisdiction in relation to such proceedings, and further the existence of any alternative remedy is no bar to this Court exercising jurisdiction under Article 226 of the Constitution. In my view the contention of Mr. Choudhuri must be accepted.

26. It has been held that for the purpose of a Writ of Certiorari the term “Judicial Act” does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law but it is an act done by competent authority upon consideration of facts and circumstances and imposing liability of affecting the rights of others. The word “quasi-judicial” implies “the existence of the judicial element in the process leading to the decision” to quote the words of the learned Chief Justice of the Supreme Court in the case of — ‘Province of Bombay v. Khushaldas S. Advani’, (1950) SCR 621 at p. 632. If a judicial approach is required before a decision can be arrived at the decision will be quasi-judicial.

27. Fazl Ali, J. in the same case observed as follows:

“Without going into the numerous cases cited before us, it may be safely laid down that an order will be a judicial or quasi-judicial order if it is made by a Court or a Judge or by some person or authority who is legally bound or authorised to act as if he was a Court or a Judge. To act as a Court or a Judge necessarily involves giving an opportunity to the party who is to be affected by an order to make a representation, making some kind of inquiry, hearing and weighing evidence, if any, and considering all the facts and circumstances bearing on the merits of a controversy before any decision affecting the rights of one or more parties is Arrived at. The procedure to be followed may not be as elaborate as in a Court of law and it may be very summary but it must contain the essential elements of judicial procedure as indicated by me.”

28. In the rules of the Services (Discipline and Appeal) Rules, 1936, there is provision for representation to be made by the person charged, for an inquiry being held and of evidence being taken if necessary. The person charged is termed as “accused” (Rule 24) and under special circumstances a pleader can be engaged to represent the accused or the Government (Rule 24), a penalty can be imposed as a result of the inquiry, a Record has to be maintained of the proceedings (Rule 10(ii)) and there is provision for appeals, and also for revision by the Government.

29. In the circumstances, it is difficult to resist the conclusion that the proceedings by way of departmental enquiry as contemplated by the rules do partake of the character of quasi-judicial proceedings and an order made in such proceedings can be interfered with by a Writ of Certiorari.

30. The contention of Mr. Chowdhury further is that the petitioner was appointed by the Deputy Inspector General of Police but he has been dismissed by respondent 2 who held the rank of Superintendent of Police.

31. It appears that R. 15, Police Regulations, Bengal, 1915, is as follows:

(a) Ministerial officers of the Police department shall be liable to punishments of dismissal, removal, degradation, stoppage of promotion or of increment of pay and black marks.

(b) Superintendents are empowered to inflict any of these punishments on ministerial officers serving under them.

32. But the petitioner has been dismissed by the Order of 6-5-1950 after the Constitution of India came into force. The petitioner's service is governed by the Constitution and by Article 311 of the Constitution. Rule 15 of the Police Regulations, 1915, which must now be held to be ‘ultra vires’ as infringing Article 311(1) cannot stand in the way of the petitioner. The rule must be held to be inoperative under Article 313 of the Constitution. That the petitioner's service is governed by the present Constitution of India admits of no doubt. See — ‘North West Frontier Province v. Suraj Narain Anand’, 75 Ind App 343 (PC).

33. Mr. A.K Sen, the learned counsel for the respondents, submitted that the petitioner cannot rely on his original appointment as after the partition of Bengal the old officers ceased to exist and the petitioner became an officer under the State of West Bengal. This argument is obviously based on a misapprehension as under Article 375 of the Constitution the old officers must be deemed to have continued even after partition of Bengal.

34. In my view the order of dismissal must be held to have been made by a person not competent to make it and was wholly without jurisdiction. The Order was in breach of the Constitution of India, Article 311(1) and in contravention of the Rules of 1936 (Cls. 8 and 9). In the circumstances, even if the Order of dismissal is regarded as an executive or administrative order it is liable to be interfered with by this Court under Article 226 of the Constitution.

35. It was contended by Mr. Chowdhury that the petitioner having been acquitted of the charges in the criminal proceedings by the Sessions Judge, Howrah, on 27-1-1949, the departmental proceedings conducted by respondents 1 and 2 in respect of the identical charges were without jurisdiction and were not warranted by law as there is an infringement of Article 20(2), Constitution of India.

36. It appears to me that this contention of Mr. Chowdhury cannot be accepted as sound. Article 20(2) is merely a reproduction of the principles underlying or laid down in Section 403 of the Cr PC and Section 26 of the General Clauses Act (Act 10 of 1897).

37. The word “Prosecution” in Article 20(2) means judicial proceedings before a Court or a legal tribunal. It cannot have reference to departmental or disciplinary proceedings taken for inflicting departmental penalty or punishment on an officer belonging to the department for any misconduct.

38. Rule 883 of the Police Regulations clearly provides that

“An order of discharge or acquittal of a police officer by a Court shall not be a bar to the award of departmental punishment to that officer in respect of the same cause or matter.”

39. This contention of Mr. Chaudhuri must fail.

40. In view of my finding, however, that the order of dismissal of 6-5-1950 was made without jurisdiction, being made by a person not competent to make it this petition must succeed. The Rule is made absolute and the Order of dismissal dated 6-5-1950 is quashed and cancelled. The petitioner is entitled to the costs of the present proceedings.

B/G.M.J

41. Application allowed.