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Budh Singh Vs. State of Uttar Pradesh - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 378 of 1955
Judge
Reported inAIR1958All607; (1958)IILLJ27All
ActsPolice Act, 1867 - Sections 7; Uttar Pradesh Police Regulations - Regulations 489, 490 and 490(5); Constitution of India - Articles 226 and 311; Police Act, 1861 - Sections 7
AppellantBudh Singh
RespondentState of Uttar Pradesh
Appellant AdvocateT.N. Bajpai, Adv.
Respondent AdvocateStanding Counsel
DispositionAppeal allowed
Excerpt:
.....consequence of which six lives were lost. the subsequent departmental enquiry was conducted by the superintendent of police, hamirpur, who by an order dated 10-10-1953, held that three of the four charges were established and recommended that the appellant be dismissed from the police force. we have come however to the conclusion that in this case the order refusing to call these witnesses was clearly wrong. in any case it would appear that all the three constables took part in the firing which occurred on 2-3-1953, and all of them were therefore clearly important witnesses who ought in our opinion to have been called. 3. the superintendent of police may well be justified in declining to call a large number of witnesses who will all depose to the same matter, but we are of the view that..........1944. in 1949 he was promoted as a sub-inspector, and in 1952 he was posted as a sub-inspector of police at police station panwari in the district of hamirpur. on the 2nd march, 1953 he went with three armed constables to the neighbouring village of nekpura, and while in or near that village he and the constables accompanying him came into conflict with a party of villagers as a result of which the police party received a number of injuries and six of the villagers were shot dead. following upon this incident proceedings were taken against the appellant under section 7 of the police act. on the 4th august, 1953, he was charged under that section with being remiss or negligent in the discharge of his duty or unfit for the same in that he had -- (we summarise the particulars specified in.....
Judgment:

O.H. Mootham, C.J.

1. This is an appeal from an order of a learned Judge dated the 20th October, 1955, dismissing, a petition under Article 226 of the Constitution. The appellant was enlisted in the Police Force in the year 1944. In 1949 he was promoted as a Sub-Inspector, and in 1952 he was posted as a Sub-Inspector of Police at police station Panwari in the district of Hamirpur. On the 2nd March, 1953 he went with three armed constables to the neighbouring village of Nekpura, and while in or near that village he and the constables accompanying him came into conflict with a party of villagers as a result of which the police party received a number of injuries and six of the villagers were shot dead.

Following upon this incident proceedings were taken against the appellant under Section 7 of the Police Act. On the 4th August, 1953, he was charged under that Section with being remiss or negligent in the discharge of his duty or unfit for the same in that he had -- (we summarise the particulars specified in the charge):

1. acted in a highly suspicious manner in proceeding with undue haste to the village of Nekpura on the 2nd March, 1953, taking with him three armed constables :

2. displayed at that village tactlessness and inexperience which gave rise to an ugly situation resulting in an armed clash between the police party and the villagers:

3. Committed an error in firing in the air as a result of which the villagers were provoked to a direct attack on the police party; and

4. failed to control firing by the police party as a consequence of which six lives were lost.

The subsequent departmental enquiry was conducted by the Superintendent of Police, Hamirpur, who by an order dated 10-10-1953, held that three of the four charges were established and recommended that the appellant be dismissed from the Police Force. That recommendation was accepted by the Deputy Inspector General of Police, 'S' Range, who by an order dated 24-11-1953 dismissed the appellant from the Police Force. From this order of dismissal the appellant filed an appeal to the Inspector General of Police.

Before however that appeal could be heard the Deputy Inspector General of Police, 'S' Range, was appointed Inspector General of Police and accordingly the appellant's appeal went direct to the State Government, On 22-10-1954, the State Government rejected the appeal.

The appellant then filed a petition in this Court in which he challenged the validity of the departmental proceedings on a number of grounds and sought the issue of a writ of certiorari quashing the order dismissing him from service. That petition was dismissed by the learned Judge on 20-10-1955, and the appellant now appeals.

2. In this court learned Counsel for the appellant has argued only one point. His contention is that at the departmental enquiry the appellant was not afforded a reasonable opportunity of putting forward his own defence. It is not in dispute that on 16-9-1953, the appellant submitted to the Superintendent of Police who was conducting the enquiry a list of defence witnesses whom he desired to examine on his behalf and that by an order dated 22-9-1953, the Superintendent of Police refused to call fifteen persons named on that list.

Among those witnesses whom the Superintendent of Police refused to call were Shabbir All and Mohammad Rafiq, two of the three constables who had accompanied the appellant when he went to Nekpura village on the preceding 2nd March and two villagers who were said by the appellant to be eye-witnesses of what actually occurred when the police party and the villagers came into conflict. Sub-paragraph (5) of Regulation 490 of the Police Regulations provides:

'If the Superintendent of Police considers that the evidence of any witness or any document which the officer charged wishes to produce in his defence is unlikely to be material to the issue of the case, he may refuse to call such witness or allow such document to be produced in evidence, but in such case he must briefly record his reasons for so refusing.'

The reason given by the Superintendent of Police for refusing to call constables Shabbir All and Mohammad Rafiq. was that these witnesses were not necessary as the third constable Shiv Ram was appearing as a defence witness and that they would all depose to the same effect. His reason for not calling the two villagers who were eye-witnesses was that he had allowed five eye-witnesses to be called and that in his opinion was enough.

Now Sub-paragraph (5) of Regulation 490 vests the Superintendent of Police with the discretion to refuse to allow certain witnesses to be called to give evidence, and this Court will not interfere with the exercise of that discretion so long as it is not exercised arbitrarily or in an unjudicial manner. We have come however to the conclusion that in this case the order refusing to call these witnesses was clearly wrong. It is to be observed that the Superintendent of Police does not in his order of the 22nd September state as a ground for refusing to call the witnesses in question that their evidence was unlikely to be material to the issue of the case.

He has so far as the witnesses Shabbir Ali and Mohammad Rafiq was concerned arbitrarily come to the conclusion that as all the three constables who accompanied the appellant would depose to the same facts their evidence would necessarily be the same. That conclusion does not necessarily follow. In any case it would appear that all the three constables took part in the firing which occurred on 2-3-1953, and all of them were therefore clearly important witnesses who ought in our opinion to have been called.

3. The Superintendent of Police may well be justified in declining to call a large number of witnesses who will all depose to the same matter, but we are of the view that if he comes to the conclusion (as he has done in the present case) that some only of the witnesses whom the officer charged desires to call should be summoned then it is not he but that officer who should have the right to decide which are to be the witnesses who should be called.

The appellant desired to call seven villagers who were alleged to be eye-witnesses. If the Superintendent of Police was of opinion that five were sufficient, he ought, in our opinion to have afforded the appellant the opportunity of selecting which five of those witnesses he desired to be called.

4. We are in the circumstances unable to resist the conclusion that the appellant has been prejudiced in his defence by the course which was followed by the Superintendent of Police at the enquiry and on this ground we should be disposed to quash the order of dismissal.

5. The learned Standing Counsel has however contended that the order of the learned Judge should be upheld on two grounds. He argues first that a departmental trial under Section 7 of the Police Act is a purely administrative enquiry in respect of which no writ of certiorari can issue and secondly that as the appellant had a remedy by way of a suit, the court should not exercise its discretion under Article 226 of the Constitution in his favour.

6. The argument on the first submission is not that the tribunal constituted under Section 7 of the Police Act has not the power to make an order which would prejudicially affect a citizen taut that it is under no duty to act judicially. Now in the Province of Bombay v. K. S. Advani. : [1950]1SCR621 Kania, C. J. (with whom Patanjali Sastri, J., agreed) said at page 633 (of SCR) : (at p. 226 of AIR) :

'It seems to me that the true position is that when the law under which the authority is making a decision itself required judicial approach the decision will be quasi-judicial.'

and Das, J., (as he then was) said at p. 725 (of SCR): (at p. 260 of AIR):

'If a statutory authority has powers to do any act which would prejudicially affect the subject then although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially.'

It is necessary therefore to ascertain whether there is statutory provision requiring the tribunal to act judicially. Section 7 of the Police Act makes provision subject to such rules as the State Government may make from time to time for the dismissal or punishment of a police officer who is found to be remiss or negligent in the discharge of his duty or unfit for the same.

The rules made by the State Government prescribing the procedure to be followed in departmental trials are to be found in paragraph 489 and the following paragraph of the Police Regulations. These rules prescribe a procedure which is clearly based upon and follows very closely the procedure to be adopted at an ordinary judicial enquiry of a criminal nature. A charge must be framed and evidence must be adduced in support of the charge.

The accused present must be given an opportunity to cross-examine the witnesses called in support of the charge and he must be allowed to produce evidence, both oral and documentary in his own defence. It is, we think, quite clear that the finding of the officer conducting the enquiry is to be based on the evidence which is adduced before him at the enquiry and that he is not at liberty to determine the guilt of the persons charged in any other way. We can entertain no doubt that in these circumstances the enquiry is of a Quasi judicial nature and we hold that there is no force in the first submission.

7. The second contention of the learned Standing Counsel is that as the appellant had a remedy by way of a suit this Court should leave him to pursue that remedy. He has invited our attention to a passage in the recent case of Union of India v. T. R. Verma, : (1958)IILLJ259SC , where at p. 884 their Lordships say:

'It is well settled that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not invoke the special jurisdiction of a High Court to issue a prerogative writ.'

Now it is undoubtedly true that the appellant in this case had an alternative remedy by way of suit and had the decision of his petition involved the determination of disputed questions of fact the learned Judge would no doubt have declined to exercise his jurisdiction under Article 226 of the Constitution and referred the appellant to the civil courts.

We understand however that there are no facts in this case which are in dispute, the only questions raised being questions of law. It is unfortunately the case that had the petitioner sought his remedy by way of suit he would probably in view of the congested state of the lists in the lower courts have had to wait for some years before obtaining a final decision.

Apart from the fact that it is eminently desirable in the public interest that cases in which the validity of the dismissal of a public servant is in question should be speedily determined it is difficult to hold that the remedy by way of suit is in this instance equally convenient, beneficial and effective. Jn these circumstances we are unable to hold that the learned Judge erred in entertaining the petition or in not dismissing it on the ground that an alternative remedy was open to the appellant.

8. In our opinion this appeal must be allowed. The order of the learned Judge dismissing the petition is set aside and we direct the issue of a writ in the nature of certiorari quashing the order of the Deputy Inspector General of police dated 24-11-1953 and that of the State Government dated 22-10-1954. (9) The appellant is entitled to his costs in both the Courts.


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