Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Rule No. 3236 of 1953

Advocates

Bankim Dutt
Bhabani Sankar Bakshi
Anil Mittal
S.K. Roy Chowdhury
Advocates.

Judges

Sinha, J.

Acts

sections 7(2) and 7(3) of the Essential Supplies Act and section 124A of I.P.C
Bengal Police Act 1869 (Bengal Act VII of 1869)
BENGAL POLICE ACT 1869
Police Act of 1866 (Bengal Act IV of 1866)
West Bengal Police Act (III of 1952),
Police Act 1888 (Act III of 1888)
West Bengal Act III of 1952,
section 7 of Act V of 1861
POLICE ACT 1861
PREVENTIVE DETENTION ACT
Police Act, 1866,

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Smart Summary

Summary of Judgment — Kamini Kumar Das Choudhury v. Respondents (Sinha, J.)

Factual and Procedural Background

The petitioner, Kamini Kumar Das Choudhury, was appointed as a probationary Sub-Inspector of Police, Bengal, effective 2 January 1945 by the Principal, Police Training College, Sardah (ranked as a Superintendent of Police). He was temporarily transferred to the Calcutta Police by a D.O. dated 16 September 1947 and, by a Government memorandum dated 6 February 1951, his services were again transferred temporarily to the Calcutta Police and he was posted to the Enforcement Branch on 18 April 1951.

On 20 May 1951, during a house and locality search ordered by Respondent No. 3 (the Deputy Commissioner of Police, Enforcement Branch), the petitioner left the place of search in contravention of a general order that no one should depart until arrival of senior officers. He was found loitering nearby and was placed under suspension the same day. On 21 May 1951 he was served with a charge sheet alleging (1) disobedience of orders/act of indiscipline, (2) disloyalty to the State by disclosing search purposes, and (3) perfunctory search or failure to collect information.

A departmental inquiry by an Assistant Commissioner recommended dismissal for the first two charges (report dated 19 July 1951). The Deputy Commissioner issued a show-cause notice, granted a personal hearing (30 July / 1 August 1951), and dismissed the petitioner on 1 August 1951. The petitioner appealed to the Inspector-General of Police through the Commissioner of Police, who rejected the appeal on 27 October 1951 (petitioner informed 2 November 1951).

The petitioner filed a writ (rule) on 10 September 1953 seeking mandamus to restrain the respondents from giving effect to the dismissal and other reliefs. The court's opinion addresses this application.

Legal Issues Presented

Whether the petitioner remained a member of the West Bengal Police such that the Deputy Commissioner of the Calcutta Police lacked jurisdiction to charge and dismiss him (i.e., whether the disciplinary action by a Calcutta authority was valid).
Whether dismissal by the Deputy Commissioner of Police, Enforcement Branch (Respondent No. 3), involved a violation of Article 311(1) of the Constitution on the ground that the dismissing authority was lower in rank than the appointing authority.
Whether the writ application should be refused on preliminary grounds of delay and want of diligence in invoking the court's extraordinary writ jurisdiction.
Whether the petitioner waived or failed to raise the jurisdictional objection during the departmental proceedings and appeal, precluding him from raising it for the first time in the writ petition.

Arguments of the Parties

Petitioner's Arguments

The petitioner contended that he was, and always continued to be, a member of the West Bengal Police Force and was never a member of the Calcutta Police; therefore a Deputy Commissioner of the Calcutta Police could not properly charge or dismiss him.
He argued that the Deputy Commissioner of Police, Enforcement Branch, was an authority lower in rank than the authority that appointed him (the Principal, Police Training College, Sardah) and that his dismissal therefore violated Article 311(1) of the Constitution.
Other complaints raised included alleged bias on the part of the Deputy Commissioner and procedural defects in the departmental inquiry (for example, assertions that officers conducting the search were not produced).

Respondents' Arguments

Respondents relied on preliminary objections: (a) there was inordinate and unexplained delay in filing the writ petition (the dismissal was in late 1951 and the rule was issued in September 1953), and (b) the petitioner failed to raise the jurisdictional point during the departmental inquiry or on appeal and thus cannot raise it for the first time in the writ petition.
On the merits respondents advanced a statutory/constitutionality argument: when members of the West Bengal Police were transferred to Calcutta they were to be regarded as members of the Calcutta Police while so employed and subject to the Calcutta Police Act and its disciplinary regime. Thus disciplinary action by Calcutta police authorities was permissible.
The Standing Counsel relied on a gradation of police posts (Reserved Posts (Indian Police) Rules, 1938) to show that the Deputy Commissioner of Police, Calcutta and the Principal, Police Training College were of the same class/grade, negating any Article 311(1) objection.
Respondents also maintained there was no substantiated bias and that the departmental inquiry had been properly conducted (several witnesses were examined), so the inquiry could not be successfully challenged.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Satya Narayan Nathani v. State of West Bengal, (1) A.I.R. (1957) Cal. 310	The principle that a writ of mandamus is discretionary (not a writ of right) and that a litigant invoking extraordinary writ jurisdiction must be diligent; unexplained delay (six months) can be fatal to a writ application.	The court relied on this authority to hold that the petitioner’s lengthy and inadequately explained delay between November 1951 and September 1953 militated strongly against granting the discretionary relief sought; the delay was treated as a decisive preliminary objection.

Court's Reasoning and Analysis

The court's analysis proceeded in two preliminary steps and then on the merits:

Preliminary objection — delay and diligence:
- The court examined the petitioner's account for delay: after dismissal (in late 1951) the petitioner faced criminal proceedings, was released on bail, and was discharged by the Magistrate on 3 June 1952. The petitioner then asserted he fled to the Andaman Islands until July 1953. The court found that while delay during active criminal proceedings might be excusable, the subsequent delay (from June 1952 to September 1953) lacked satisfactory explanation and was implausible (the court found the petitioner’s flight-to-Andaman story difficult to accept).
- Applying the principle from Satya Narayan Nathani, the court held that mandamus is discretionary and that a litigant seeking it must be diligent; long unexplained delay is fatal. The court concluded there was no satisfactory explanation for the delay between November 1951 and September 1953, making the writ application vulnerable to dismissal on this ground.
Preliminary objection — failure to raise jurisdictional point earlier:
- The court observed that the petitioner had raised other procedural points during the inquiry and appeal (for example, that an Assistant Commissioner should not have held the inquiry), but he had not taken the specific point now urged — that he continued to be a member of the West Bengal Police and therefore outside the disciplinary authority of the Calcutta Deputy Commissioner. The petitioner had alleged instead that certain officers should have drawn up proceedings or that particular ranks should have presided.
- The court concluded it was too late for the petitioner to assert, for the first time in the writ petition, that the Deputy Commissioner had no authority at all over him.
Merits — statutory construction and effect of transfer:
- The court reviewed the relevant statutory framework: Section 2 of the Police Act 1861 (stating the police establishment under a State Government is to be deemed one police force); the Calcutta Police Act 1866 (which regulates police within Calcutta and contains no provision expressly for employing personnel of other forces, but section 8 allows the State Government to constitute the Calcutta police as it chooses); the Police Act 1888 (to relax restrictions on employment of police from one province in another); and the Bengal Police Act 1869 (which expressly authorised the Provincial Government to employ members of a police force enrolled in one general police district in another — Section 5).
- The court noted the later statutory articulation: the West Bengal Police (Temporary Powers) Ordinance 1951 and paragraph 3 of the West Bengal Police Act (III of 1952), which expressly provided that members temporarily employed in another area are to be deemed members of the force of that area with the attendant powers, privileges and liabilities. While these explicit provisions post-dated the petitioner’s transfer, the court reasoned that earlier statutory provisions (in particular the Bengal Police Act 1869 read with the State Government's authority under the Calcutta Police Act) already made it reasonable and logical that transferred members became subject to the rules and discipline of the local force while so employed.
- Applying that analysis to the specific facts, the court concluded that upon the Government order of 6 February 1951 effecting a transfer to the Calcutta Police, the petitioner became, for the time being, a full-fledged member of the Calcutta Police and thus subject to the Calcutta Police Act's disciplinary rules. Accordingly, disciplinary action by Calcutta authorities (including dismissal) was permissible.
Merits — status of the dismissing authority and Article 311(1):
- The court examined the rank relationship between the appointing authority (Principal, Police Training School, Sardah — equated to Superintendent of Police) and the dismissing authority (Deputy Commissioner of Police, Calcutta). The Standing Counsel referred to the Reserved Posts (Indian Police) Rules, 1938, which provided a gradation of police posts. For Bengal, both the Deputy Commissioner of Police (Calcutta) and the Principal, Police Training College were graded as class (b) officers — i.e., the same grade.
- On that basis, the court found there was no breach of Article 311(1) of the Constitution (which protects against dismissal by an authority subordinate to the appointing authority in certain circumstances), because the dismissing officer was not of lower grade than the appointing authority.
Other objections (bias, conduct of enquiry):
- The petitioner alleged bias on the part of the Deputy Commissioner, tied to a personal connection; the court found this allegation to be imaginary and unsupported by affidavits.
- The court noted that the petitioner had said one witness would suffice but in fact three officers were called and examined; the court was satisfied the departmental inquiry had been conducted fairly and could not be seriously impugned.
- The court emphasized that mandamus is discretionary and, given the nature of the charges and the proven misconduct, even a technical flaw would not have been enough to justify interference.

Holding and Implications

Holding: APPLICATION DISMISSED.

Consequence and immediate implications:

The rule (writ petition) is discharged; any interim order is vacated.
There will be no order as to costs.
The dismissal imposed by the Calcutta police authorities stands and the court declined to grant mandamus or other relief to set aside or restrain the dismissal.

Broader implications:

The court interpreted existing statutes to hold that a police officer temporarily transferred to the Calcutta Police becomes, while so employed, subject to the Calcutta Police Act and its disciplinary regime; the West Bengal Police Act (III of 1952) and the 1951 Ordinance later clarified this position expressly.
The court treated the writ of mandamus as a discretionary remedy and reaffirmed that unexplained delay and failure to raise jurisdictional objections at the appropriate stage are powerful grounds to refuse relief. The opinion does not purport to lay down any novel general principle beyond these applications of established law.

Judgment delivered by Sinha, J. — application dismissed; the rule discharged; interim order, if any, vacated; no order as to costs.

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Kamini Kumar Das Choudhury v. State Of West Bengal And Ors. Opposite Parties.

The Judgment of the Court was as follows:

Sinha, J.:— The facts in this case are briefly as follows:

The petitioner, Kamini Kumar Das Choudhury was appointed as a probationary Sub-Inspector of Police, Bengal with effect from 2nd January, 1945, by the Principal, Police Training College, Sardah (Rajsahi), Bengal, who is of the rank of a Superintendent of Police. By D.O No. 2607, dated the 16th September, 1947 he was temporarily trans-ferred to the Calcutta Police. (Vide West Bengal Police Gazette, dated October 3, 1947).

2. On or about the 6th February, 1951, the Government of West Bengal transferred the services of the petitioner temporarily to the Calcutta Police. This appears from a memorandum dated 6th February 1951, issued by the Government of West Bengal in its Home (Police) Department, No. 467-PL|P5P-6|49 dated 6th February 1951, a copy whereof is annexed to the further Affidavit affirmed by Mr. Satyendra Nath Mukherjee, dated 5th July, 1957. On or about 18th April, 1951 the petitioner was posted to the Enforcement branch of the Calcutta Police. On the 20th May 1951, under orders made by Respondent No. 3, there was a search at the house of one Hari Pada, situated in the Kankurgachi Bustee. There was also a general search in locality. The petitioner was ordered to take part in the house search; and a general order was passed by Respondent No. 3 that no one should depart from the place of search till the arrival of the Deputy Commissioner or the Assistant Commissioner. In violation of the said order, the peti-tioner left the place and was found loitering in the vicinity. His case is that he was fatigued and went to have a cup of tea. Mr. Satyendra Nath Mukherji, the Deputy Commissioner of Police, Enforcement Branch, who detected the petitioner loitering on the side of a tank, definitely swears that there was no tea shop in the vicinity where he was found loitering [para 11(b), counter affidavit].

3. On the 20th May 1951, the petitioner was placed under suspension. On the 21st May 1951, he was served with a Charge Sheet. The charges are as follows:

(1) You are charged with an act of indiscipline by disobeying the orders of D.C.E by absenting yourself on 20.5.51 from 13|2 Sir Gurudas Road, where you were deputed to assist S.I Sitanath Bose to conduct a house search and were found at about 9 A.M in a bustee near a tank in Upen Banerjee Road about a furlong away from the place of search when you were looked for by D.C.E.B

(2) You are further charged with for being disloyal to the State of West Bengal by disclosing the purpose of Police searches in Kankurgachi area on 20.5.51 and thereby forewarning and enabling the people concerned in the criminal activity there to destroy materials for search.

(3) You are further charged with making perfunctory search and not collecting other informations at the place of search which you are ordered by D.C.E to do.

4. The petitioner was asked to show cause, why he should not be dismissed from the Police force or otherwise severely dealt with.

5. There was a departmental enquiry held by Mr. A. Rahaman, Assisttant Commissioner of Police, Enforcement Branch, who, by his report, dated 19th July 1951, found the petitioner guilty of the first two charges and exonerated him from the third charge. The enquiring officer recommended that the petitioner should be dismissed from the police force forth-with.

6. On the 19th July, 1951, the D.C.E.B, Respondent No. 3, issued a notice upon the petitioner directing him to show cause why he should not be dismissed from service. On the 30th July, 1951, the petitioner was given a; personal hearing on the 1st August, 1951 and an order was made by the D.C.E.B, dismissing the petitioner from service.

7. On the 31st August, 1951, the petitioner preferred an appeal to the Inspector-General of Police, West Bengal, through the Commissioner of Police, Calcutta. The Commissioner of Police felt himself competent to deal with the appeal and on the 27th October 1951, rejected the same. The petitioner admits that he was informed about this on the 2nd November, 1951.

8. This rule was issued on 10th September, 1953 upon the respondents to show cause why a writ in the nature of mandamus should not be issued directing them to forbear from giving effect to the order of dismissal and for other reliefs.

9. The main points taken by the petitioner are two. The first is that he was, and always continued to be, a member of the West Bengal Police Force and was never a member of the Calcutta Police. Hence, he could not be charged with an offence and dismissed by a Deputy Commissioner of the Calcutta Police. Secondly, it is urged that the Deputy Commissioner of Police, Enforcement Branch, was an authority lower in rank than the authority appointing the petitioner and consequently there was a violation of Article 311(1) of the Constitution. Some other minor points have been raised, which I shall presently consider.

10. Two preliminary points have been raised, which I think are sufficient to dispose of this application. The first point is that there has been a delay in making this application and the petitioner is not entitled to relief under this jurisdiction. The answer to the charge of delay given by the petitioner is that on the 7th October, 1951 shortly after the order of dismissal, the house of the petitioner was searched and he was arrested, and proceedings were initiated against him under sections 7(2) and 7(3) of the Essential Supplies Act and section 124A of I.P.C before the Police Magistrate, Sealdah. The petitioner was released on bail after a week and on the 3rd June, 1952, he was discharged by the learned Magistrate, for lack of evidence. He says that thereafter he fled to the Andaman Islands as he was afraid of being arrested under the Preventive Detention Act, from where he returned in July, 1953. While it may be possible to excuse the delay while proceedings were actually pending against him before the police magistrate, it is impossible to excuse the delay that took place afterwards. If the petitioner was innocent, he had no reason to flee from an alleged persecution. This is a story which is indeed difficult to swallow. In Satya Narayan Nathani v. State of West Bengal (1) A.I.R (1957) Cal. 310, it was held by the learned Chief Justice that a writ of mandamus was not a writ of right and a person invoking the special jurisdiction of the court, for the extraordinary remedy by way of a writ was required to be diligent. A delay of six months was held to be fatal. In this case there is no satisfactory explanation for the delay between November, 1951 and September, 1953.

11. The second preliminary point is that the petitioner failed to take the point of jurisdiction, as now propounded, at any stage of the enquiry or in his appeal. If he did not take this point in course of the proceedings, he cannot plainly be permitted to take it here for the first time. Looking into the petition of appeal, I find that the petitioner did allege that he had been enrolled under section 7 of Act V of 1861 and not under the Calcutta Police Act 1866, so that he could only be dealt with under Disciplinary Regulation; 1861 applicable to members of the subordinate rank of the Bengal Police. But his grievance was that it was mandatory “on the Superintendent or a Deputy Commissioner of Police, in the present case” to draw up these proceedings himself. His grievance was that an Assistant Commissioner of Police could not take part in proceedings for serious misconduct which might end in dismissal or reduction in rank, so an Assistant Commissioner of Police could not hold an enquiry as was done in this case. It is this point that he had also pressed at the time of showing cause against the proposed punishment. This will appear from the order of Respondent No. 3, dated 1st August, 1951 where he says:

“The contention of the delinquent S.I that an Assistant Commissioner of Police cannot deal with proceedings is not correct. (Vide C.P.C para. No. 2278(3), dated 16th July, 1951).”

12. It is thus clear that the petitioner never took the point that he continued to be a member of the West Bengal Police Force and the Deputy Commissioner of Police, Enforcement Branch, Calcutta, could not dismiss him. On the contrary he alleged that the Deputy Commissioner should himself have drawn up the proceedings and heard the matter. It is now too late to raise the point that the Deputy Commissioner of Police had no authority over the petitioner at all.

13. Although these two preliminary points are sufficient to dispose of the matter, I think that it would be better to deal with the points raised. Under the Police Act 1861, Section 2 lays down that the entire police establishment under a State Government shall for the purpose of that Act, be deemed to be one police force and shall consist of such number of officers and men and shall be constituted in such manner as shall from time to time be ordered by the State Government.

14. The Calcutta Police Act of 1866 (Bengal Act IV of 1866) which regulates the Police system within the local limits of the town of Calcutta (as defined in the Act), contains no provision for employment of personnel belonging to other than the Calcutta Police Force. Section 8 however lays down that the police force in Calcutta shall consist of such members of officers and shall be otherwise constituted in such manners as shall be from time to time ordered by the State Government.

15. The Police Act 1888 (Act III of 1888) was passed “to relax those provisions of Acts for the regulation of police which restrict tha employment of police officers to the presidency, State or place, or of the police establishment of which they are members.” This Act however was concerned with the participation of the police of one State or province, in another State or province. The Bengal Police Act 1869 (Bengal Act VII of 1869) recited in the preamble that “it is expedient that the entire police establishment in the province under the control of the Lieutenant Governor of Bengal should cease to be one police force; and that the said provinces should cease to be one general police district……….”

16. Section 5 of the Act runs as follows:

“It shall be lawful for the Provincial Government to employ members of the police force who have been enrolled in, or appointed to, any one general police district in any other general police district, within the provinces subject to his control………..”

17. On 26th December, 1951, was promulgated the West Bengal Police (Temporary Powers) Ordinance 1951. This was replaced by the West Bengal Police Act (III of 1952), paragraph 3 whereof runs as follows:

“It shall be lawful for the State Government to employ members of the police force of Calcutta or the suburbs of Calcutta in any general police district and members of any general police district in Calcutta or the suburbs of Calcutta, and while so employ ed every such member of a police force shall be deemed to be a member of the police force of the area in which he is so employed and to be vested with the powers, functions and privileges and to be subject to liabilities of a member of the police force of that area.”

18. It is therefore clear that from 26th December, 1951, the position of a member of the West Bengal police force temporarily transferred or lent to the Calcutta police, is quite clear. But was it any different before? It is argued that since it was found necessary to promulgate the ordinance and pass the Act, it must be presumed that the previous position was different. In my opinion that is not so. As I have pointed out above, the Bengal Police Act 1869, contains provisions relating to the employment of the police force of one police district in another. But the Calcutta Police Act, 1866, contained no such provision. The only provision it contained was section 8 whereby the State Government could constitute the police force in the town of Calcutta in such manner as it likes. It follows that while members of the West Bengal Police force could be transferred to Calcutta, the only way of utilising them would be to constitute them a part of the local force. In fact, this would be the most logical thing to do, because in forces like the military or the police, there can not be divided loyalties.

19. Thus, while the petitioner was in the Calcutta police force, he must necessarily be subject to all the rules and regulations contained in the Calcutta Police Act and be subject to the same authoriy and discipline as any other member of the Calcutta police force. He could not have been employed in any other way in the Calcutta police force, since there existed no provision for it in the Calcutta Police Act, 1866. The Ordinance of 1951 and the West Bengal Act III of 1952, merely clarified the position, and now there exists no further doubt regarding the matter. What then is the position in the present case? The petitioner was originally transferred from the West Bengal police force by a D.O order in 1947, but this was regularised by a Government order, dated 6th February, 1951. By this order he was “transferred,” to the Calcutta police force, although temporarily. By the transfer he became, for the time being, a full fledged member of the Calcutta police force. As I have shown, he could become nothing else, since the Calcutta Police Act contained no provision for any other thing. If that is so he became subject to the same rules of conduct and discipline as any other member of the force, and I do not see why disciplinary measures' should not have been taken against him in accordance with the rules prevailing under the Calcutta Police Act, and why he should not have been dismissed from that force. Whether he thereby reverted back to his old status as a member of the West Bengal police, is a question, I am not called upon to decide in this case.

20. The next question raised is about the status of the dismissing authority. The appointing authority of the petitioner was the Principal of the Police Training School, Sharda, who had the status of a Superintendent of Police, It is certainly a difficult task to equate between two classes of officers in two different forces, but the learned Standing Counsel seem to have accomplished this seemingly impossible task. He has drawn my attention to a notification No. 63|38-1-Ests., containing rules made by the Secretary of State for India called. The Reserved Posts (Indian Police) Rules 1938. These rules contain a gradation of posts in the police force all over India. So far as Bengal is concerned, both a Deputy Commissioner of Police Calcutta and Principal, Police Training College are graded as (b) class officers, that is to say, they belong to the same grade. This disposes of the question of the status of the dismissing authority and there has been no violation of Article 311(1) of the Constitution.

21. Besides the above two grounds, a few miner points were raised. It was argued that Mr. Satyendra Nath Mukherjee, Deputy Commissioner, Enforcement Branch, had a bias against the petitioner and the actions taken by him are a result of such bias. The reason suggested is that the petitioner in course of performing his duties took steps against one Sankhulal Biswas, stated to be the next door neighbour and intimate friend of the Deputy Commissioner, and this incurred his displeasure. This appears to me to be an entirely imaginary grievance. I have looked through the affidavits carefully and have come to the conclusion that the petitioner has failed to make out any case against the Deputy Commissioner, Enforcement Branch, who has only discharged his public duties even if it turned out to be detrimental to the interests of the petitioner. The other allegations by the petitioner are also without foundation. For example, a point was raised by Mr. Dutt, appearing on behalf of the petitioner that the officers conducting the search were not produced. It appears however that the petitioner expressed his opinion that even if one officer was called, that would be enough for his purposes. In fact, three were called and examined at length. In my opinion, the conduct of the departmental enquiry could not be seriously challenged. Lastly, I say that a writ of mandamus is a discretionary writ. The charges proved against the petitioner are of such kind that even if the petitioner succeeded in showing a technical flaw, 1 would have refused to interfere. In my opinion, justice has been done, and calls for no further interference.

22. For the reasons aforesaid this application must be dismissed. The rule is discharged, interim order if any vacated. There will be no order as to costs.

A.K.D.G

Kamini Kumar Das Choudhury v. State Of West Bengal And Ors. Opposite Parties.

Summary of Judgment — Kamini Kumar Das Choudhury v. Respondents (Sinha, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Kamini Kumar Das Choudhury v. State Of West Bengal And Ors. Opposite Parties.

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