Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Nirmal Chandra Sen
  • Rabindra Narayan Chakravarty and Rash Behary Goswami
  • S.M. Bose
  • Advocate-General; D.K. Sen and Satyendra Nath Sen
Judges
  • Bose, J.
Acts
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Nirmal Chandra Sen
  • Rabindra Narayan Chakravarty and Rash Behary Goswami
  • S.M. Bose
  • Advocate-General; D.K. Sen and Satyendra Nath Sen
Judges
  • Bose, J.
Acts
See more information ...
Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

The petitioner, a Bachelor of Science in Engineering of the University of Glasgow, was appointed as an Assistant Civil Engineer by the Damodar Valley Corporation (the Corporation) under a three-year Agreement of Service commencing 22-8-1950. The agreement included a clause permitting summary dismissal for misconduct and referred matters not covered in the agreement to the Corporation's rules and regulations (which had not been framed).

While employed the petitioner was entrusted on or about 6-1-1951 with laying galvanized iron pipelines for an urgent job and completed the work by 14-1-1951. The Corporation later suspected false entries in the Muster Roll and misappropriation of wages; the Executive Engineer (respondent 4) threatened to report the petitioner on 21-2-1951. The petitioner gave a show-cause reply on 7-3-1951. On 21-3-1951 respondent 4 suspended the petitioner and served a charge-sheet with four heads of charge; the petitioner replied on 28-3-1951.

A departmental inquiry was directed by the Superintending Engineer (respondent 3). Correspondence included a Questionnaire indicating contemplation of a written defence and an oral inquiry allowing attendance, legal assistance and examination/cross-examination of witnesses. No formal regulations had been framed by the Corporation under the Damodar Valley Corporation Act, 1948, and the Corporation was following Government rules pending its own rules.

The petitioner sought writs under Article 226 — certiorari to quash the departmental proceedings and the dismissal order, and mandamus to prohibit giving effect to the dismissal. The respondents defended the disciplinary process and the dismissal; the order of dismissal was later shown to have been approved by the members of the Corporation and communicated to the petitioner by the Director of Personnel.

Legal Issues Presented

  1. Whether the petitioner, as an officer of the Damodar Valley Corporation, is an "officer holding a civil post under the Union or the State Government" so as to attract the protections of Article 311(2) of the Constitution.
  2. Whether the Damodar Valley Corporation is under a statutory duty to act judicially or quasi-judicially in departmental or disciplinary inquiries against its officers such that a writ of certiorari lies to quash its disciplinary proceedings and the resultant order of dismissal.
  3. Whether a writ of mandamus can be issued in the absence of a prior specific demand and refusal by the authority sought to be compelled.
  4. Whether Article 226 judicial review by way of certiorari/mandamus is an appropriate remedy where there are disputed facts requiring evidence and a full hearing (versus the remedy of a suit).
  5. Whether the order of dismissal was validly made/approved and communicated by the appropriate authority within the Corporation.

Arguments of the Parties

Petitioner's Arguments

  • The petitioner sought certiorari and mandamus under Article 226 to quash the departmental proceedings and the order of dismissal and to prohibit the respondents from giving effect to the dismissal.
  • Primary contention: the petitioner should be treated as an officer holding a civil post under the Union and/or the State Government and thereby entitled to protections under Article 311(2) (as argued by Mr. Nirmal Chandra Sen).
  • Alternate contention: even if not a government officer, the service agreement and the Questionnaire contemplated procedures that imposed a duty to act judicially or quasi-judicially (written statement, oral inquiry, attendance, legal assistance, examination and cross-examination of witnesses), and those procedures were not followed.
  • A procedural point was raised that the Director of Personnel (who communicated the order) was not the appointing authority and thus the dismissal was invalid.

Respondents' Arguments

  • The Corporation and its appointment demonstrate that the petitioner was not an officer holding a civil post under the Union or State Government; the Corporation is a separate statutory entity under the Damodar Valley Corporation Act, 1948.
  • The Act does not expressly impose a duty on the Corporation to hold judicial or quasi-judicial departmental inquiries; regulations under Section 60 were not framed and no statutory obligation to follow government rules exists.
  • The Corporation was following government rules pending its own rules, but that practice is not compelled by statute and could be changed.
  • There was no specific demand and refusal antecedent to a claim for mandamus.
  • Factual assertions by the petitioner about denial of legal assistance and cross-examination were disputed by respondents; the order of dismissal was approved by the members of the Corporation and communicated by the Director of Personnel.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Franklin v. Minister of Town and Country Planning, (1948) AC 87 Cited to illustrate that an investigation may be of a non‑judicial or internal character and need not amount to a judicial inquiry. The court relied on the authority to support the proposition that an investigation under the service agreement could be merely to inform the Corporation's mind and not a judicial enquiry, so Clause (6) of the agreement did not necessarily impose judicial procedure.
Province of Bombay v. Khushaldas S. Advani, AIR 1950 SC 222 Cited alongside Franklin to support the distinction between internal investigations and judicial inquiries. The court referenced this decision to bolster its conclusion that the contractual provision permitting investigation did not, by itself, impose a statutory duty to hold judicial or quasi-judicial disciplinary proceedings.
Union of India v. Elbridge Watson, AIR 1952 Cal 601 Establishes that a writ of mandamus ordinarily requires a prior distinct demand and an explicit refusal by the authority sought to be compelled. The court applied this principle to find that the petition for mandamus failed because there was no specific pleading or evidence of any antecedent demand and refusal in the present case.
D. Parraju v. General Manager, B.N. Rly., AIR 1952 Cal 610 Principle that Article 226 is not a substitute for a suit where facts are in dispute and a full evidentiary process is necessary; a suit may be the proper forum to adjudicate disputed factual matters. The court cited this authority to justify declining to grant certiorari given the contested factual issues (e.g., whether the petitioner was allowed legal assistance and cross-examination), and noted that a suit would better permit examination of evidence and witnesses.

Court's Reasoning and Analysis

The court proceeded in a series of logical steps grounded in the facts and the statutory framework disclosed in the record:

  1. Characterization of employment: The petitioner was employed under a service agreement by the Damodar Valley Corporation; the agreement, its form and the way it was entered into demonstrated employment by the Corporation, not by the Union or a State government. The court emphasized the Corporation's independent statutory identity under the Damodar Valley Corporation Act, 1948 (ownership of property, its own fund, defined functions) and noted that, while the Corporation may discharge functions allocated by the Government, it remains a distinct entity.
  2. Applicability of Article 311(2): Because the petitioner was not an officer holding a civil post under the Union or State Government, Article 311(2) protections did not automatically apply.
  3. Statutory duty to act judicially/quasi-judicially: The court examined the Act and concluded it did not expressly impose a duty on the Corporation to act judicially or quasi-judicially in departmental inquiries against its officers. Section 51 imposes special obligations only in relation to dismissal of members of the Corporation; the contemplated regulations under Section 60 had not been framed despite lapse of time, and the Act did not make framing regulations obligatory to impose judicial enquiry requirements.
  4. Contractual terms and internal procedure: The Agreement of Service contained a clause permitting summary dismissal for misconduct (Clause 4) and a clause suggesting investigation (Clause 6) without specifying its nature. The court reasoned — relying on authorities cited — that the investigation could be internal, non-judicial and merely to inform the Corporation's mind; the mere presence of the Questionnaire (which contemplated certain procedures) did not convert the Corporation's duty into one enforceable by certiorari if there was no statutory compulsion.
  5. Mandamus prerequisites: The court applied the principle from Union of India v. Elbridge Watson that mandamus generally requires a distinct antecedent demand and refusal. Finding no specific pleading nor evidence of such a demand and refusal in the record, the court concluded mandamus was not available.
  6. Disputed facts and appropriateness of Article 226 relief: The petitioner alleged denial of legal assistance and inability to cross-examine witnesses; respondents disputed these facts. Given these contested factual issues, and the authority that Article 226 is not an adequate substitute for a suit where evidence must be taken, the court held that even if a writ could theoretically lie, the matter was unsuitable for summary relief by certiorari in the present procedural posture.
  7. Validity of the impugned order: The petitioner’s point about the authority that passed the order was met by counter-affidavits and production of the order of dismissal; the order had been approved by the members of the Corporation on 12-6-1951 and communicated by the Director of Personnel on 16-6-1951, undermining that contention.

Holding and Implications

Holding: The court dismissed the petition and discharged the rule. Emphasizing the core ruling:

RULE DISCHARGED; Petition dismissed.

Implications:

  • The court found that the petitioner was not an officer holding a civil post under the Union or State Government; accordingly Article 311(2) was inapplicable as a matter of right.
  • Because the Damodar Valley Corporation Act did not impose a statutory duty to hold judicial or quasi-judicial departmental inquiries, and no regulations had been framed making such a duty mandatory, a writ of certiorari could not be sustained to quash the disciplinary proceedings on that ground.
  • A writ of mandamus could not be granted because the record contained no specific pleading or evidence of a prior demand and refusal by the Corporation to perform the act sought to be compelled.
  • Even assuming arguendo that the Corporation owed a duty to act judicially or quasi-judicially, the existence of substantial disputed facts (e.g., whether legal assistance and cross-examination were denied) made Article 226 relief inappropriate; a suit would be a more suitable forum to resolve contested factual issues.
  • Direct practical effect: the petitioner's challenge to the dismissal failed, the rule was discharged and no costs order was made ("I make no order as to costs").

The opinion does not state or purport to establish any broader new legal principle beyond its application to the facts and statutory provisions before the court.

Show full summary ...

    Bibhuti Bhusan Ghosh v. Damodar Valley Corporation And Others Opposite Party.

    1. This is an application under Article 226 of the Constitution for the issue of a writ of certiorari and a writ of mandamus or any other appropriate writ for quashing of an order of dismissal passed against the petitioner in certain departmental proceedings taken against the petitioner for misconduct in the discharge of his duties as an Engineer employed under the Damodar Valley Corporation and for prohibiting the opposite parties from giving effect to the said order of dismissal.

    2. The petitioner who is a Bachelor of Science in Engineering of the University of Glasgow, was appointed as an Assistant Civil Engineer by the respondent Corporation for a term of three years commencing from 22-8-1950 under an Agreement of Service entered into on 9-12-1950 on terms and conditions contained in the said Agreement. It is a term of the said Agreement that the service of the petitioner might be terminated by the Corporation without previous notice if the Corporation was satisfied that the employee was unfit and was likely to continue as such for a considerable period by reason of ill-health, or if the Corporation or its officers having proper authority, found the petitioner to be guilty of insubordination, intemperance or other misconduct or breach or nonperformance of any of the provisions of the agreement. It is a further term of the said agreement that in respect of any matter for which no provision has been made in the agreement the provisions of the relevant rules or regulations of the Corporation would apply. In course of his employment as such Assistant Engineer the petitioner on or about 6-1-1951 was entrusted with the work of laying galvanised iron pipe lines for over a distance of about 5,000 running feet from the Barakar river to the Kumardhubi Power House & he was directed to complete the work within ten days from date. As the work was an urgent one the petitioner had to engage sufficient number of labourers who were paid from the Muster Roll at the usual rates of wages allowed by the respondent Corporation. It appears, however, that the petitioner succeeded in completing the work by 14-1-1951. Some time thereafter the respondent had reason to suspect that the petitioner had not engaged all the labourers whose names had been entered in the Muster Roll and false entries were made in the Muster Roll with a view to misappropriate some money out of the amount that might be received from the Corporation on account of wages paid to the labourers engaged in such work and on or about 21-2-1951 the Executive Engineer who is respondent 4 threatened to report against the petitioner for the alleged misconduct to the Authorities concerned. On 7-3-1951 the petitioner showed cause against the allegations and charges made by the Executive Engineer in his said letter of 21-2-1951. On 21-3-1951 respondent 4 purporting to act under the order of the Corporation suspended the petitioner from service and served upon him a charge-sheet containing four heads of charges as set out in the petition and the petitioner was called upon to show cause why he should not be dismissed from service or why a lesser punishment should not be inflicted upon him on the said charges. On 28-3-1951, the petitioner by a letter of that date denied the charges levelled against him and showed cause against the said charges. As the Authorities did not accept the explanation offered by the petitioner, a departmental inquiry was directed by the Superintending Engineer who is respondent 3. Certain correspondence thereafter passed between the petitioner and the Authorities concerned in relation to the said enquiry and in course of such correspondence certain Questionnaire was submitted to the petitioner which is in Annexure ‘H’ of the petition. This Questionnaire indicates that it was contemplated that the petitioner would be entitled to put in a written statement of his defence and an oral enquiry would be held by the Authorities in respect of the charges and the petitioner would be allowed to attend such enquiry, engage the services of a lawyer and would be afforded an opportunity of examining and cross-examining the witnesses tendered at such enquiry.

    3. It may be pointed out at this stage that no regulations have yet been framed by the Damodar Valley Corporation in respect of disciplinary or departmental proceedings likely to be taken against its officers, although the framing of regulations is contemplated under S. 7 read with Section 60 of the Damodar Valley Corporation Act, 1948 (Act 14 of 1948). The affidavit of Mr. Murty the Superintending Engineer of the Damodar Valley Corporation indicates in para. 32 thereof that in respect of departmental enquiry the respondent Corporation is following Government rules pending introduction of its own rules. In order that a writ of certiorari may issue for quashing the departmental proceedings and the order of dismissal which followed as a result of such proceedings it must be shown that an obligation or duty has been imposed by Statute upon the respondent Corporation to act judicially or quasi-judicially in relation to such inquiry. It was contended by Mr. Nirmal Chandra Sen the learned Advocate for the petitioner that as the petitioner must be treated as an officer holding a civil post under the Union and/or the State Government there is such a duty to act judicially imposed by Article 311(2) of the Constitution of India and in the event of this Court holding that the petitioner is not an officer of the Union or State Government there is a duty to act judicially or quasi-judicially under the conditions of service as embodied in the service agreement and also under the procedure contemplated by the Questionnaire. It appears to me that the petitioner cannot be regarded as an officer holding a civil post under the Union or State Government. The agreement of service by which he was employed as an Assistant Engineer shows that the appointment was made by and under an order of the respondent Corporation. The different provisions of the Damodar Valley Corporation Act, 1948 indicate that the Corporation has a separate and independent existence and is a different entity from the Union or State Government. This Corporation has properties vested in it under the Act, it has its own fund and its functions and duties are defined in the Act. Section 49 of the Act shows that if there is any dispute between the Corporation and the Participating Governments regarding any matter covered by the Act the same has to be referred to an Arbitrator for decision and the decision of the Arbitrator shall be final and binding on the parties. It may be that this Corporation has been set up by the Government for the purpose of discharging certain functions of the Union or the State Governments, but there can be no doubt that it has a separate existence and cannot be considered as a part of the Union or State Government. Just as the Corporation of Calcutta discharges certain duties and functions which are to be performed by the State Government so also certain functions and duties of the Union and the State Governments have been allocated to the Damodar Valley Corporation, but the Corporation performs these duties and functions as a separate entity.

    4. The Agreement of Service of the petitioner is not in the form in which Government contracts are entered into and does not comply with the requirements of Section 175 of the Government of India Act, 1935 or Article 299 of the Constitution. This shows that the petitioner is not an employee of the Government. I am unable to hold that the petitioner is an officer holding a civil post under the State or the Union Government.

    5. There can be no doubt however that the Respondent Corporation is a statutory and public body entrusted with, the discharge of public duties. But the question is whether in holding a departmental enquiry into the conduct of one of its officers it is under any duty to act judicially or quasi-judicially. The Damodar Valley Corporation Act has not expressly imposed any such duty. It is only in the case of dismissal of members of the Corporation that an obligation of such a nature has been cast upon the Central Government by Section 51 of the Act. The Act however contemplates making of regulations under Section 60 of the Act but no regulation has been framed as yet although about 4 years have elapsed since the commencement of the Act. It is clear from the terms and conditions of Service of the petitioner that it was contemplated by the petitioner and the Corporation at the time the Agreement of Service was entered into, that regulations framed would govern matters which were not provided for in the Contract of Service. But there is nothing in the Act which makes it incumbent upon the Corporation to make regulations imposing a duty on the Corporation to hold a judicial or quasi-judicial enquiry into the charges of misconduct of its officers. The Regulation if framed might have provided for an enquiry of a very summary nature or might not have provided for any enquiry at all or might have provided for an enquiry merely for informing the minds of the Authorities of the Corporation concerned. It is true that the Corporation is at the present moment following the procedure analogous to that provided by the Government rules but there is no obligation on it created by Statute to do so. It may refuse to do so at any time.

    6. Clause 4 of the Agreement of Service shows that the petitioner can be dismissed summarily for misconduct without any notice being given to him beforehand. Clause (6) no doubt suggests that some investigation may be made but the nature of the investigation is not indicated. It may be an investigation by the Corporation to inform its own mind and it may not be a judicial enquiry. (See — ‘Franklin v. Minister of Town and Country Planning’, (1948) AC 87 at pp. 96, 102 (A) and — ‘Province of Bombay v. Khushaldas S. Advani’, AIR 1950 SC 222 at pp. 241, 255 (B).

    7. I am unable to hold that there is any duty either express or implied in the Corporation to act judicially or quasi-judicially in matters of dismissal of its employees. It appears to me therefore that a Writ of Certiorari cannot issue.

    8. Now so far as the prayer for issue of a Writ of mandamus is concerned it appears that the present application was not preceded by a specific demand of justice and refusal. It has been held by the Court of Appeal in the case of — ‘Union of India v. Elbridge Watson’, AIR 1952 Cal 601 (C) that before a writ of mandamus can issue it must be shown that there is a distinct demand of that which the party seeking the mandamus desires to enforce and that such demand was met by a refusal. It has been pointed out in that case that this is not merely a technical point but a point of substance.

    9. In the present case there is no specific pleading or any evidence to show that any such demand was made and the demand was refused. So no relief can be granted to the petitioner by the issue of a writ of mandamus in this case.

    10. Assuming a writ of certiorari could issue in this case and the respondent Corporation was under a duty to act judicially or quasi-judicially in, the matter of disciplinary or departmental proceedings against its officers, I would not be inclined to grant a writ in the present case inasmuch as there is a good deal of controversy as to what actually took place at the departmental proceedings held in respect of the charges against the petitioner. It is the case of the petitioner that he was not afforded an opportunity to take the assistance of his lawyer nor to cross-examine witnesses and tender his own witnesses for examination. This ss however disputed by the respondents. A good deal of evidence has to be taken before any satisfactory conclusion can be arrived at on the points. As observed by G.N Das J. in the case of — ‘D. Parraju v. General Manager, B.N Rly.’, AIR 1952 Cal 610 (D) the remedy by way of an application under Article 226 of the Constitution is not a proper substitute for a remedy by way of a suit, especially where facts are in dispute and in order to get at the truth it is necessary that the questions should be canvassed in a suit where the parties would have ample opportunity of examining their witnesses and the Court would be better able to judge which version is correct.

    11. So in any event this is not a case where the Court will in the exercise of its discretion under Article 226 of the Constitution grant a writ of certiorari or mandamus when there is a more convenient and effective remedy open to the petitioner by way of a suit.

    12. A point was raised by Mr. Sen that the Authority that passed the order of dismissal of the petitioner is not the appointing authority but it is the Director of Personnel of the Corporation who has made the order.

    13. This fact has been denied in the counter-affidavits and at the hearing the learned Advocate-General has produced the order of dismissal and it appears that the order was approved or sanctioned by all the members who compose the Corporation. The approval was given on, 12-6-1951 and the order was communicated to the petitioner by the Director of Personnel on 16-6-1951. So there is no force in this contention of Mr. Sen.

    14. In my view this petition fails and the Rule is accordingly discharged. I make no order as to costs.

    A/D.R.R

    15. Rule discharged.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Bibhuti Bhusan Ghosh v. Damodar Valley Corporation And Others Opposite Party.
    (Mar 7, 1952)