1. This is an appeal from an order of Mr. Justice Mehrotra dated 29-1-1957.
2. The respondent, Sri Ram Murat Singh, was a head constable in the U. P. Police Force. In December, 1954, he and another head constable were charged under Section 7 of the Police Act with remissness and dishonesty in the discharge of their duties. A departmental trial was held which was conducted by Sri B. N. Singh, a Deputy Superintendent of Police. This officer found the charge to be established and was of opinion that both the persons charged should be dismissed from the Force, and an order to this effect was subse-quently made by the Superintendent of Police on 9th May, 1950.
Against this order the respondent appealed to the Deputy Inspector General of Police, Eastern Range, Banaras, but his appeal was dismissed on 22-11-1955 and an application in revision to thei Inspector General of Police was rejected on 24-6-1955. Thereafter the respondent filed a petition in this Court under Article 226 of the Constitution in which he challenged the validity of the order dismissing him from service on a number of grounds. The learned Judge held that Sri B. N. Singh had, under the Police Regulations no jurisdiction to conduct the Departmental trial, and on this ground he quashed the order dismissing the respondent from service and thf; subsequent orders on appeal and revision made by the Deputy Inspector General of Police and the Inspector General of Police. These officers now appeal.
3. The grounds of appeal are numerous but in view of the decisions of the Supreme Court in Parshotarn Lal Dhingra v. Union of India, AIR 1958 SC 33 and the State of U. P. v. Mohammad Nooh, AIR 1958 SC 86 the learned Standing Counsel has made only one submission in this Court. It ts that as the respondent did not raise the question of the authority of Sri B. N. Singh to conduct the enquiry before the Superintendent of Police or before the Deputy Inspector General of Police on appeal or before the Inspector General of Police in revision, it was not open to him to raise that question for the first time in a petition in this Court under Article 226 of the Constitution.
4. This submission is not in our opinion well founded. Learned Standing Counsel has invited for our attention to the case of Gandhinagar Motor Transport Society v. State of Bombay, AIR 1954 Bom 202 in which, according to the headnote, the Court held that
'Before a question of jurisdiction of a tribunal is raised on a petition under Arts. 226 and 227, the objection to jurisdiction must be taken before the tribunal whose order has been challenged.' An examination of the judgment shows however that the Court did not intend to lay down so rigorous a rule as the headnote would suggest, for it made it clear that whether in any case a writ should issue is a matter which always lies within the discretion of the Court. The fact that a petitioner has not raised the question of jurisdiction before the subordinate tribunal is not necessarily a bar to the objection being taken for the first time in a writ petition, the question will be whether he has by his conduct precluded himself from obtaining the relief for which he asks. The position is well stated by Channell, J., in Rex v. Williams; ex parte Phillips. 1914-1 KB 608 who said at page 613:
'In my view the writ is discretionary. A party may by his conduct preclude himself from claiming the writ ex debito justitiae, no matter whether the proceedings which he seeks to quash are void or voidable. If they are void it is true no conduct of his will validate them; but such considerations do not affect the principles on which the Court acts in granting or refusing the writ of certiorari. This special remedy will not be granted ex debito justitiae to a person who fails to state in his evidence on moving for the rule nisi that at the time of the proceedings impugned he was unaware of the facts on which he relies to impugn them. .... To such a one the granting of the writ is discretionary.
5. It is, however, 'a very salutary rule' to usethe words of Rowalat, J. in the same case that apetitioner must show that he has taken his objection to jurisdiction before the tribunal whose orderhe is seeking to have quashed or state in his affidavit that he had no knowledge of the facts whichwould enable him to do so. We are of opiniontherefore that Mr. Justice Mehrotra had a discretion to grant the respondent relief. It is howeversaid that he ought not to have done so because therespondent did not disclose in his affidavit when itwas that the officer who held the enquiry was notauthorised, to do so. That fact ought certainly tohave been stated by the respondent, but it is clearthat the point which has now been raised in thisCourt was not raised before the learned Judge. Hadit been raised before him an opportunity couldthen have been given to the respondent to file asupplementary affidavit to make good the deficiency in his original affidavit. We are of opinionthat there are no grounds for interfering with theorder made by the learned Judge, and accordinglythis appeal fails and is dismissed with costs.