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Bankhandi Lal Vs. Asst. Supdt. of Police and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Civil
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 49 of 1958
Judge
Reported inAIR1962All114
ActsConstitution of India - Articles 226 and 311; Police Act - Sections 7
AppellantBankhandi Lal
RespondentAsst. Supdt. of Police and ors.
Appellant AdvocateS.C. Khare, Adv.
Respondent AdvocateStanding Counsel
DispositionAppeal dismissed
Excerpt:
.....of india - for issue of writ of certiorari - least possible delay - adequate explanation for laches - high court has right to refuse the writ not filed on time. - - 8. we think it unnecessary to consider the first ground put forward by the learned standing counsel as, in our opinion, his second contention is well founded. mathur whether he would like to produce his defence before him or before the superintendent of police. this conduct on the part of the appellant clearly disentitled him from obtaining a relief in the nature of a writ of certiorari quashing the order of his dismissal on that ground. ignorance of the facts which would have enabled him to challenge the jurisdiction of the tribunal before the tribunal itself could be a good explanation. the appellant has failed to..........that an objection to jurisdiction not taken before the tribunal could not in any case be raised in writ proceedings thus did not find favour with this court. the view which prevailed with it was that a writ of certiorari being a discretionary remedy the court would in normal circumstances be justified in refusing to exercise its discretion in favour of a person and permit him to claim that relief on a ground which he had not raised before the subordinate tribunal. it is, however, open to the person to explain his omission in an adequate manner. the relief can be granted to him only if such an explanation is forthcoming. in the present case the omission to raise the point before the police authorities is conceded, but no explanation of any kind is put forward in respect of it. in the.....
Judgment:

Srivastava, J.

1. This is an appeal against a judgment of Mr. Justice Oak dated the 26th November, 1957, by which he dismissed a petition filed by the appellant under Article 226 of the Constitution.

2. The appellant Bankhandi Lal was formerly employed as a police head constable in the district of Mathura. Certain allegations having been made against him he was charge-sheeted under section 7 of the Police Act. The enquiry into the charges framed was held by Mr, B. M. Mathur, Assistant Superintendent of Police, Mathura. He recorded his findings against the appellant and forwarded the same to the Superintendent of Police, Mathura, Agreeing with the findings the latter served a notice on the appellant requiring him to show cause why he should not be dismissed from the Police Force. The appellant submitted his explanation. The explanation was not found to be satisfactory and by his order dated the 10th October, 1954, the Superintendent of Police dismissed the appellant from service. He preferred an appeal to the Deputy Inspector-General of Police,Western Range, and a revision to the Inspector-General of police but both were, rejected.

He then filed the petition out of which this appeal has arisen and! contended in support of it that the order of his dismissal stood vitiated because the departmental trial which had resulted in it was not held in accordance with the prescribed rules. The main ground on which objection was taken to the trial was that Mr. B. M. Mathur, Assistant Superintendent of Police, Mathura, who had held the enquiry, had no jurisdiction to hold it because he did not possess the requisite qualifications prescribed by Clause (f) of para 479 of the Police Regulations. The petition of the appellant had been rejected by the learned Judge, who heard it, on the grounds (1) that it was not proper to interfere in a case of departmental action against a member of the Police Force, (2) that the main point relating to the jurisdiction of Mr. B. M. Mathur to hold the departmental enquiry on which the appellant had based his petition had not been raised by him before the departmental authorities and (3) that the petition had been filed with delay which had not been satisfactorily explained.

3. It has been urged on behalf of the appellant in appeal that in the circumstances of the case the rejection of the petition was not justified. Emphasis is laid on the fact that it was not disputed on behalf of the respondents, that Mr. Mathur was not possessed of the requisite qualifications to entitle him to hold the enquiry.

4. There can be no doubt that the petition was a belated one. The order by which the appellant was dismissed from the Police Force by the Superintendent of Police was passed on the 10th October, 1954. His appeal against the order was rejected by the Deputy Inspector-General of Police on the 15th July, 1955. The Inspector-General of Police rejected the revision preferred to him on the 15th March, 1956. The appellant did not file his petition challenging the orders till the 13th, August, 1956 and thus allowed about five months to elapse before seeking the aid of this Court. He sought to explain this delay on two grounds. He said in the first place that the order in revision was conveyed to him only in the end of April, 1956. He also said that he was advised at that time that no writ petition could be filed during the summer vacations in the High Court.

As has been pointed out by the learned Judge, after the summer vacations in 1956, this Court reopened on the 14th July, 1956. The petition was not filed on that date. In fact, it was filed more than a month later and no explanation of any kind was offered for this delay of over a month. It has also to be borne in mind that even if the order rejecting the revision application was conveyed to the appellant in the end of April, 1956, on reading the order the appellant must have come to know that it had been passed on the 15th March, 1956 and that if he wanted to challenge the order he should have fifed his petition as expeditiously as possible. He had, therefore, no justification for not filing the petition before the High Court closed for the summer vacations,

5. It was urged on behalf of the appellant that in 1956, when the petition was filed the ruleabout such petitions being filed within ninety days from the cause of action had not crystallized and was not observed strictly. That may be true, but so far as a writ of certiorari is concerned, the rule has always been there that if a person wants to seek the aid of the Court in getting such a writ issued he must act with the least possible delay and if he is guilty of laches he must offer some adequate explanation. The explanation which the appellant offered for not filing the petition, earlier was by no means satisfactory and if the learned Judge, refused to entertain the petition on the ground that it was a belated one it cannot, in our opinion, be said that he exercised his discretion in any unreasonable manner.

6. It has not been disputed before us that the rules relating to departmental trials to be found in Chapter XXXII of the Police Regulations are statutory rules inasmuch as they have been framed Under Section 7 of the Police Act. The departmental trial of the appellant was conducted in accordance with those rules by Mr. B. M. Mathur, Assistant Superintendent of Police, Mathura. He himself did not impose any punishment on the appellant. He only forwarded his findings to the Superintendent of Police, who being in agreement with them gave a copy of the findings to the appellant and required him to show cause why the punishment of dismissal should not be imposed upon him. It was after the appellant had shown cause and it had been found unsatisfactory that the Superintendent of Police directed his dismissal.

The only ground on which the departmental proceedings have been questioned on behalf of the appellant is that the trial should have been conducted by the Superintendent of Police himself and not by Mr. B. M. Mathur, Assistant Superintendent of Police, because he did not possess the requisite qualifications mentioned in para 479 (f) of the Police Regulations. It has not been disputed before us that Mr. B. M. Mathur had not at that time crossed the first efficiency bar in the time scale of pay applicable to him and had also not been especially authorised in this behalf by the Inspector-General of Police. He was not, therefore, one of the officers contemplated by Clause (f) of para. 479. The argument is that on account of this absence of the required qualifications the proceedings that took place before Mr. Mathur stood vitiated and on their basis no order of dismissal could be passed.

7. The reply of the Standing Counsel is twofold. He contends in the first place that the main requirement of para 479 of the Police Regulations is that in case of head constables it is the Superintendent of Police who can punish them. In the present case the order dismissing the appellant has actually been passed by the Superintendent of Police and not by Mr. Mathur. The fact that Mr. Mathur conducted the departmental enquiry and submitted a report can in the circumstances amount only to an irregularity. After getting the report the Superintendent of Police applied his own mind to the facts and then because he agreed with the findings asked the appellant to show cause. He considered the explanation offered by the appellant and then directed his dismissal. The entire proceedings cannot in these circumstances be heldvitiated simply because the proceedings were not conducted by the Superintendent of Police himself but were conducted by an assistant.

The other contention is that in any case when the departmental proceedings were being conducted by Mr. Mathur the appellant raised no objection. In fact, in reply to a question which was put to him in course of the proceedings he specifically stated that he had no objection to the enquiry which was being held by Mr. Mathur. The appellant thus acquiesced to what was being done. When he showed cause before the Superintendent of Police he did not challenge the proceedings before Mr. Mathur on the ground of want of jurisdiction. He did not raise this point either in his appeal to the Deputy Inspector-General of Police or in his revision to the Inspector-General of Police. It was in his writ petition that the appellant for the first time sought to raise this question. On account of acquiescence the learned Judge was justified in not permitting him to raise the point.

8. We think it unnecessary to consider the first ground put forward by the learned Standing Counsel as, in our opinion, his second contention is well founded. It is conceded in the present case that the appellant never questioned the jurisdiction of the Assistant Superintendent oi Police to conduct the proceedings under Section 7 of the Police Act against him. In fact, at one stage of the proceedings Mr. Mathur asked the appellant whether he had any objection to the proceedings held till then and the reply of the appellant was in the negative. He was also asked by Mr. Mathur whether he would like to produce his defence before him or before the Superintendent of Police. The appellant replied that he would produce his defence before Mr. Mathur himself.

The purpose of these questions appears to have been to give an opportunity to the appellant to have his trial before the Superintendent of Police himself if he was desirous of a strict compliance with the rules and did not want the proceedings to be conducted by Mr. Mathur. The appellant, however, declined to avail of the opportunity. In his subsequent explanations submitted to the Superintendent of police or in his appeal or revision before the higher police authorities he did not challenge the validity of the proceedings on this ground. This conduct on the part of the appellant clearly disentitled him from obtaining a relief in the nature of a writ of certiorari quashing the order of his dismissal on that ground. The question how far omission to raise a ground of want of jurisdiction before the subordinate tribunal can prevent a petitioner under Article 226 of the Constitution from getting the order of the Tribunal quashed by a writ of certiorari camp up for consideration by this Court in Superintendent of Police, Mirzapur v. Ram Murat Singh, AIR 1959 All 710.

It was argued on the strength of Gandhinagar Motor Transport Society v. State of Bombay, AIR 1954 Bom 202 that the omission proved an absolute bar. The contention was not found acceptable it was observed that because the matter rested with the discretion of the Court there could be no bar or rigorous rule debarring a petitioner from claiming a writ of certiorari on a new ground not raised earlier before the tribunal yet there could be caseswhere the petitioner could be held to have been precluded by his conduct from obtaining the relief which he claimed. It was considered to be a very salutary rule that the petitioner must show that he had taken his objection to jurisdiction before the tribunal whose order he was seeking to have quashed. It was, however, recognised that he could, however, explain the omission and if the explanation was satisfactory, relief could be granted, to him. Ignorance of the facts which would have enabled him to challenge the jurisdiction of the tribunal before the tribunal itself could be a good explanation. The same view appears to have been elaborated in the form of four propositions in the case of Jagatjit Cotton Textile Mills Ltd., Pbagware v. Industrial Tribunal, Patiala, AIR 1959 Punj 389.

9. The extreme view adopted in AIR 1954 Bom 202 (supra), Appa Shivling v. Vithal Baba, AIR 1960 Bom 219, Belsund Sugar Co., Ltd. v. Labour Appellate Tribunal of India, AIR 1958 Cal 456, Ram Mohan Basu v. State of West Bengal, 61 Cal WN 779, Umaprabha Thampuratti v. State of Kerala, AIR 1960 Kerala 186 and AIR 1959 All 710 (supra), that an objection to jurisdiction not taken before the tribunal could not in any case be raised in writ proceedings thus did not find favour with this Court. The view which prevailed with it was that a writ of certiorari being a discretionary remedy the Court would in normal circumstances be justified in refusing to exercise its discretion in favour of a person and permit him to claim that relief on a ground which he had not raised before the subordinate tribunal. It is, however, open to the person to explain his omission in an adequate manner. The relief can be granted to him only if such an explanation is forthcoming.

In the present case the omission to raise the point before the police authorities is conceded, but no explanation of any kind is put forward in respect of it. In the affidavit that was filed in support of the writ petition there was no averment to the effect that at the time when he was being tried by Mr. Mathur the appellant was not aware of the disqualification of the latter. The appellant has also mot stated anywhere as to when for the first time he came to know of those facts. It is not suggested on behalf of the appellant that he was not aware of the provisions of para 479 (f) of the Police Regulations or that he had any reason for not raising this objection at the various stages during which the matter passed from the time when the charge was framed against him to the dismissal of his application in revision. In these circumstances the appellant was, in our opinion, not entitled to get the impugned orders quashed on the ground that Mr. Mathur was not empowered to conduct the original proceedings.

10. It was urged by the learned counsel for the appellant that if Mr. Mathur had no jurisdiction the acquiescence of the appellant could not confer it on him. It is contended that as in the present case the fact that Mr. Mathur did not have the necessary qualifications is not disputed, the appellant is entitled to have the entire proceedings quashed for want of Jurisdiction. The principle relied upon applies in the first place only tothe cases of patent lack of jurisdiction which is apparent on the face of the record. The present is not a case of that kind. In the second place in putting forward this contention the appellant overlooks that a writ of certiorari is not a writ as of course. It can be refused even in cases of want of jurisdiction and the Court can decline to interpose on the ground that on account of his conduct the appellant has become disentitled to claim the relief.

11. The petition of the appellant was, therefore, liable to be dismissed on the ground of delay and acquiescence. In tin's view of the case it is unnecessary to go into the third ground on which the learned Judge has refused to interfere. The appellant has failed to satisfy us that his petition was wrongly dismissed. The appeal must in the circumstances fail and is dismissed with costs.


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