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Prafulla Mohan Mukherjee Vs. the Inspector General of Police, Govt. of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtKolkata High Court
Decided On
Case Number A.F.O.O. No. 102 of 1956
Judge
Reported inAIR1959Cal1,62CWN843
ActsBengal Police Regulations, 1943 - Regulation 861; ;Constitution of India - Articles 226, 311 and 311(2)
AppellantPrafulla Mohan Mukherjee
RespondentThe Inspector General of Police, Govt. of West Bengal and ors.
Appellant AdvocateNripendra Nath Dutta Roy, Adv.
Respondent AdvocateAnil Kumar Das Gupta, ;Smriti Kumar Roy Choudhury and ;Somendra Chandra Basu, Advs.
Cases ReferredOm Prakash Gupta v. The State of Uttar Pradesh
Excerpt:
- p. chakravartti, c.j. 1. the appellant, prafulla mohan mukherjee, was appointed as assistant sub-inspector of police by the deputy inspector-general on 15-1-1925. on 2-1-1942, he was promoted to the rank of a sub-inspector and was placed on probation for one year. on 2-1-1943, he was confirmed in the rank of sub-inspector. thereafter, on 10-11-1944, he was posted as a sub-inspector, intelligence branch, at 13, lord sinha road and continued to serve in that capacity till the partition of india. after the partition, the appellant opted for the state of west bengal and having; done so, continued to serve in his old post till the proceedings out of which this appeal has arisen commenced.2. so far as can be ascertained, the cause of the proceedings was a confidential letter written by the.....
Judgment:

P. Chakravartti, C.J.

1. The appellant, Prafulla Mohan Mukherjee, was appointed as Assistant Sub-Inspector of Police by the Deputy Inspector-General on 15-1-1925. On 2-1-1942, he was promoted to the rank of a Sub-Inspector and was placed on probation for one year. On 2-1-1943, he was confirmed in the rank of Sub-Inspector. Thereafter, on 10-11-1944, he was posted as a Sub-Inspector, Intelligence Branch, at 13, Lord Sinha Road and continued to serve in that capacity till the partition of India. After the Partition, the appellant opted for the State of West Bengal and having; done so, continued to serve in his old post till the proceedings out of which this appeal has arisen commenced.

2. So far as can be ascertained, the cause of the proceedings was a confidential letter written by the appellant himself on 5-11-1952, to the Special Assistant, Intelligence Branch, West Bengal. In that letter he stated that on 26-5-1952, his wife, Parul Bala Debi, had purchased a certain plot of land situated at Jadabpur in the District of 24-Parganas for a consideration of Rs. 5.000 and that he had already sought advice from the Office as to how that change in the position of his assets was to be included in his statement for the year 1952, already submitted. He added that the advice he had received was to include the change in the next statement to be submitted in January, 1953. If the appellant had already sought instructions as to what be had to do about the purchase by his wife and had received instructions, as the letter itself states, it is not particularly clear why it should have become necessary to bring that matter again to the notice of his Office, unless it was for the reason stated in the next paragraph of his letter. The next paragraph referred to certain disputes which had arisen with regard to the property in which one Khagendra Naskar, a member of the West Bengal Provincial Congress Committee, was said to be taking great interest and an apprehension was expressed that false allegations might be made against him to his superior Officers. Even fear of false reports against him does not wholly explain the letter, nor is it clear why, if the property was purchased by the appellant's wife with her own money and not by him in the wife's name, it had at all become necessary to inform his Office of the purchase. At one stage of the argument, Mr. Dutt Roy, who appears on behalf of the appellant, submitted that Regulation 112 (a) (i) of the Police Regulations, Bengal, required every Police Officer to make a declaration of all immovable property in India, held by him or by his wife or by any member of his family living with him or in any way dependent on him. If the Regulation referred to applied, the explanation offered by Mr. Dutt Roy would be good explanation, but obviously it does not apply. The Regulation requires the declaration contemplated by it to be made only 'on appointment' and thus it is only when an Officer is first appointed that he is to make a comprehensive declaration of the kind contemplated by the Regulation. Subsequent annual statements are provided for in Clause (ii) of Regulation 112 (a) and it is there said that the statement is to be in Bengal Police Form No. 5. A reference to the form prescribed shows that while there is a column in it for an entry as regards properties belonging to the Officer, but held in the name of his wife or someone else, there is: no column at all for properties held by an Officer's wife in her own right. Apparently, it is only once and that at the time of his first appointment that an Officer is required to disclose all properties, whether held by himself or held by any of his relations, living with or dependent on him, but subsequently he is required to make an annual statement only with regard to properties which he himself owns, whether in his own name or in the name of some other person. In those circumstances, it seems to me that the description given in the proceedings to the letter as a 'very unusual' one, was fully deserved.

3. The letter, however, was taken by the authorities to reveal that it was the appellant himself who had purchased the land at Jadabpur in respect of which a document had been taken in the name of his wife. The home District of the appellant in his service book was shown as Dacca and his home address was given as 120, Dayagunge Road, P. O. Narinda, P. S. Sutrapur in Dacca. Although the Dayagunge address was given as the appellant's home address, it appears that he had come to own and possess a two-storeyed building at 33 Gopibag 3rd Lane in the town of Dacca jointly with his wife in equal shares. The fact, however, remains that whether his home was the house at Dayagunge Road or the house at 33 Gopibag 3rd Lane, it was, in any event, in the town of Dacca and therefore the entry of Dacca as his home District in the service record was entirely correct. The land reported by him to have been purchased by his wife was situated in the District of 24 Parganas which was not the appellant's home District, if Dacca had continued to be such, as according to his service book it had. The authorities took the purchase as having been made by the appellant himself and as he had obtained no prior permission for the purchase, they took the view that he had violated Regulation 112 (c) of the Police Regulations of Bengal. That Regulation provides inter alia as follows :

'A police officer is forbidden to purchase land or other immovable property elsewhere than in his home district, whether in his own name or in the names of his wives, children, relatives, dependents or servants or in any way benami x x x without the previous sanction of the Inspector-General.'

4. The authorities also took the view that in purchasing a property, as to the title to which there was some dispute, the appellant had been guilty of conduct unbecoming of a police officer.

5. On that view taken of the transaction and because the purchase was of a property situated in a District other than the appellant's home District for which no prior permission of the Inspector-General of Police had been taken, the appellant was placed on suspension by an order made on 2-3-1953 and the order was served on him on the 3rd. On the same day, he was served with a charge-sheet containing two charges which read as follows :

(1) 'You are hereby charged with having deliberately violated the provisions of Rule 112 (c) P. R. B. Vol. (I) 1943, by not obtaining previous permission from the appropriate authorities to purchase a plot of land within Tollygunge Police Station in 24-Parganas district, during May, 1952.'

(2) 'You are hereby charged with having been guilty of conduct unbecoming of a Police Officer in that you purchased the plot of land knowing full well that there was a dispute as to its ownership and that by purchasing this land it would involve you in litigation with Sarat Chandra Karmakar who was in physical possession of the property and was living in a house existing thereon,'

6. An enquiry into the charges was thereafter held by a Deputy Superintendent of Police. A large body of evidence was taken in the course of the enquiry and the appellant was given a full opportunity to participate in the proceedings which he did. At the conclusion of the enquiry, the Enquiring Officer submitted a report dated the 24th of June 1953, by which he found the appellant guilty of both the charges and recommended his degradation to the rank of an Assistant Sub-Inspector of Police. The report was submitted to the Deputy Inspector-General. On receipt of it, the Deputy Inspector-General, by an order dated the 7th of August, 1953 directed a copy of it to be supplied to the appellant and directed the appellant to appear before him in his Office on the 17th of August next for a personal hearing. This notice was served on the appellant on the same date and on 17-8-1953, a personal hearing was given to him. Previously, he had submitted a lengthy written statement in answer to the charges framed, but it appears that when he went to the Deputy Inspector-General for a personal hearing on 17-8-1953, he took a further written statement with him which he submitted to the Officer. After hearing the appellant and after considering the report of the Enquiring Officer, the Deputy Inspector-General passed his order on 1-10-1953. As to the charges framed against the appellant, he found the appellant guilty of both of them as the Enquiring Officer had done, but he thought that mere degradation to the rank of Assistant Sub-Inspector, as recommended by the Enquiring Officer, would be wholly inadequate and would not meet the necessities of the case. He, therefore, decided tentatively to impose on the appellant the penalty of dismissal from service and directed the issue of a notice to him to show cause by 5-10-3953, why he should not be dismissed for having been guilty of the charges preferred against him. In response to that notice, the appellant showed cause by another written statement. That statement was duly considered by the Deputy Inspector-General, but he found nothing in it to induce him to modify the opinion he had formed as to the punishment which would be appropriate in the case. Accordingly, by an order dated 12-10-1953, he directed that the appellant be dismissed from service.

7. Against the order of dismissal, the appellant preferred an appeal to the Inspector-General of Police. The Inspector-General went into the facts of the case and found no reason to disagree with the Deputy Inspector General either as regards the guilt of the appellant or the propriety of the punishment imposed on him. By an order dated 4-2-1954, he dismissed the appellant's appeal.

8. The appellant then turned to the Courts of law. On 26-7-1954, he moved this Court under Article 226 of the Constitution against the Inspector-General of Police, the Deputy Inspector-General and the State of West Bengal and asked for a writ of certiorari to quash the proceedings had and findings made against him and also a writ of mandamus against the respondents, commanding them to forbear from giving effect to the orders of the 1st and 12th of October, 1953 and 4-2-1954. There were also certain subsidiary prayers to which it is not necessary to refer. A Rule was issued on the application by Sinha, J., but at the final hearing it was discharged by the learned Judge himself. The appellant then preferred the present appeal.

9. A great many points appears to have been urged before Sinha, J., as to the Constitutional validity of several of the Police Regulations. The learned Judge repelled all those contentions and they were not repeated before us. The view taken by the learned Judge was that none of the technical objections raised on behalf of the appellant had any substance and that since the procedural rules had been observed and the appellant had had a reasonable opportunity to defend himself, there was no ground on which the Court could interfere with the orders made against him on an application under Article 226. It appears that the appellant succeeded in drawing the learned Judge into some discussion of some of the points on the merits of the case against the appellant, but even on those points, the view taken by the learned Judge was adverse to him.

10. The present appeal has been argued before us with commendable brevity. The somewhat ostentatious points, supposedly based on the Constitution, which had been canvassed before the learned Judge were altogether abandoned and only two short points were taken. It was contended that the procedure of the proceedings had against the appellant had not been regular as the learned Judge had found, but had been irregular in two respects, in that before the final order had been passed against the appellant by the punishing authority, he had not been given a personal hearing, as required by the last paragraph of Regulation 861 (e) of the Police Regulations of Bengal and secondly that both in coming to the conclusions of fact and in deciding on the punishment to be imposed, the authorities concerned had taken into consideration matters which were wholly extraneous.

11. As regards the first point, there can be no question that Article 311(2) applies to the case, but equally there can be no question that Regulation 861(e) of the Police Regulations of Bengal also applies. The last paragraph of Regulation 861(e) provides as follows:

'The authority empowered to pass the order of punishment shall grant a personal hearing to the person charged and then pass the final orders. When the enquiring officer himself passes the final order, no personal hearing is necessary, as the person charged is present throughout the enquiry.'

In the present case, the Enquiring Officer did not pass the final order and, therefore, the first part of the paragraph will clearly apply. The learned trial judge had occasion to deal with this point and he pointed out that Article 311(2) of the Constitution only required a second chance to be given to the Government servant concerned for the purpose of showing cause against the proposed punishment, but said nothing about a personal hearing. A second chance to show cause against the proposed punishment had been offered to the appellant in the present ease and had been availed of bv him and, therefore, so far as the Constitution itself was concerned, its requirements appeared to have been satisfied. The learned Judge proceeded to observe that even if in addition to Article 311(2), the latter part of Regulation 861(e) of the Police Regulations also applied, the appellant could not expect any privilege beyond what the actual terms of the Regulation provided. According to the learned Judge, all that the Regulation provided was that the person charged should be given a personal hearing before the final orders were passed, but in the present case the appellant had in fact been given a personal hearing before the order of dismissal had been passed on him and, therefore, nothing else was required to be done under Regulation 801(e). The learned Judge appears to have thought that under the provisions of Regulation 861(e) the appellant could not insist on a personal hearing in connection with the proposed punishment, because an opportunity to show cause against the proposed punishment was only provided for by the Constitution which did not prescribe a personal hearing and therefore, Regulation 861(e) would be satisfied if at any stage before the final order was passed, a personal hearing was given to the person charged.

12. In my view, the learned Judge was not right in his construction of Regulation 861(e). It will be recalled that the personal hearing was granted in the present case on 17-8-1953 at the stage when the report of the Enquiring Officer had only been received, but no finding on the charges had yet been arrived at by the Deputy Inspector-General of Police. As a matter of tact, the findings on the charges were not made by the Deputy Inspector-General till a month and a half later. It is true that the appellant was given a personal hearing with respect to the findings of the Enquiring Officer, a copy of which had been previously supplied to him, but obviously what he was heard on were whether or not the conclusions of the Enquiring Officer on the charges framed against him were correct and whether or not he should be degraded to the rank of an Assistant Sub-Inspector of Police, as recommended by the Enquiring Officer. Up to that starts no proposal lor dismissing the appellant from service had been made by any one. That proposal was made by the Deputy Inspector-General after he had recorded his findings on the charges in agreement with the Enquiring Officer, because he thought that the misconduct found proved against the appellant would not lie sufficiently punished by mere reduction in rank. Actually, the appellant was finally dismissed from service. If the final order passed against the appellant had been an order of reduction to the rank of an Assistant Sub-Inspector of Police, it might have been said with good reason that although he had not been given a personal hearing after a punishment had been tentatively decided on, he had in any event been given a persnoal hearing with respect to the very penalty that was ultimately imposed and, therefore, it was immaterial at what stage the personal hearing had been given. No such argument can be available in the present case. Here the appellant was heard on the report of the Enquiring Officer and, therefore, he must have been heard only with respect to a penalty of reduction in rank to that of an Assistant Sub-Inspector. The punishment proposed to be imposed was subsequently changed by an order of the Deputy Inspector-General ot Police and if the appellant had a right to a personal hearing with respect to the punishment ultimately imposed on him, it is clear that no such hearing was given to him.

13. Whether or not it was irregular not to give the appellant a personal hearing with respect to a proposal to dismiss him from service, thus depends upon the true construction of the latter part of Regulation 861(e). Sinha, J., has apparently taken the view that the procedure of two opportunities for showing cause, one of which must be in relation to the proposed punishment, is a creature of the Constitution and, therefore, no such provision can be read into Regulation 861(e). Whether or not the framers of Regulation 861(e) had two opportunities for showing cause in mind, the learned Judge does not appear to have been right in thinking that prior to the commencement of the Constitution, two opportunities for showing cause, one of them in relation to the proposed punishment, were not known to Indian procedure. The procedure under the Government of India Act of 1935 and Rule 55 of the Fundamental Rules equally provided for two opportunities and, therefore, there is no reason to think that the concept of two opportunities is a later concept which had no existence in the law prevailing at the time when the Police Regulations were framed. I may point out here that the Regulations appear to have been framed between 1943 and 1944.

14. The question what the last paragraph of Regulation 861(e) means still remains. The Regulation says that 'the authority empowered to pass the order of punishment shall grant a personal hearing to the person charged and then pass the final orders.' It is to my mind clear that the final orders contemplated are the orders for the punishment of the person charged. It is true that the Regulation by itself docs not suggest that after the receipt of the recommendation of the Enquiring Officer and before the passing of the final order, the punishing authority shall interpose a stage of a tentative proposal for a punishment, but the interposition of such a stage is provided for by a law of higher authority and was provided for even at the time when the Regulation was framed. It is in the light of the Constitutional procedure prescribed for taking disciplinary action that Regulation 861(e) is to be viewed. It is true that the sequence of events envisaged by Regulation 861(e) is that first the Enquiring Officer shall make his recommendation, then the punishing authority shall give a personal hearing to the person charged and next the punishing authority shall pass the final orders. But it seems to me to be clear enough that the personal hearing contemplated is a hearing in relation to the orders proposed to be passed and the final orders must not be such that, on them, the person charged had had no opportunity for making a representation at the personal hearing. I think the Regulation, as framed, contemplated that after the recommendation of the Enquiring Officer had been received, the punishing authority, if he accepted the recommendation, would make up his mind even at that stage as to what punishment he would impose and then call the person charged to a personal hearing and hear him both on the findings and on the punishment he intended to impose. There was perhaps no thought or idea then, as I have already indicated, of interposing a further stage. But if the Regulation by necessary implication suggests that the personal hearing to be given, must be a hearing in relation to the punishment imposed by the final order, it appears to me to be inescapable that after the Deputy Inspector-General of Police had decided not to accept the Enquiring Officer's recommendation as to the penalty to be imposed and had decided to impose a higher penalty it became necessary under Regulation 861(e) to give the appellant a personal hearing with reference to the higher punishment proposed. It is quite true that the appellant was given an opportunity to show cause against the proposed punishment and did show cause in writing, but if in addition to an opportunity for showing cause in writing, which may he said to be all that the Constitution requires, there is a. farther provision in the conditions of service of the appellant and the rules by which he is governed that a personal hearing should be given to him in relation to the punishment proposed to be imposed, it cannot be right in law to withhold from him such a hearing. I am not concerned here with the question as to whether the failure to give such a hearing affected the merits of the case, because that is a matter on which we cannot possibly speculate. Our sole concern is to sec whether the procedure prescribed by the Constitution and the relevant rules were violated or whether there was a departure from the strict procedure. In my view a departure did occur in the present case, in that the appellant was not given a personal hearing with respect to the penalty of dismissal proposed to be inflicted.

15. I desire to add that the construction I have placed on Regulation 861(e) does not mean or involve that the punishing authority will have to give two personal hearings to the person charged in every case. If after receiving the report of the Enquiring Officer and accepting his findings, the punishing authority makes up his mind, although tentatively, as to what punishment he will impose, directs a notice to be given to the delinquent to show cause against such proposed punishment and thereafter gives him a personal hearing before the final orders are actually passed, both Regulation 861 (e) and Article 311 will be simultaneously satisfied. A second personal hearing, in my view, became necessary in this case, because the personal hearing in fact given was at a stage which, in the events which subsequently happened, turned out to be premature.

16. If failure to give a personal hearing after the punishing authority had tentatively decided on the punishment to be imposed, had been the only irregularity in the case, I might not have been inclined to interfere with the order of the learned Judge. The second irregularity alleged, however, appears to me to be of a graver character and to have affected the merits of both the findings against the appellant and the penalty imposed on him.

17. The charges framed against the appellant were extremely simple. The first charge was that he had purchased a plot of land in a District other than his home District and had done so without obtaining previous permission from the appropriate authorities, as required by Regulation 112(c) of the Police Regulations. The only issues raised by that charge were whether 24 Farganas was the home District of the appellant and whether the purchase had really been made by him, although it had been made in the name of his wife. There could be no issue at all as to whether previous permission had been obtained, because it was not the appellant's case that he had ever applied for such permission. I need not, however, dwell longer on the first charge, because the complaint of the importation of extraneous matters was made not in relation to the findings on this charge, but in relation to those on the other one. I would only mention with respect to the first charge that although the Enquiring Officer did not enter into a discussion as to whether the purchase had been by the appellant himself or by his wife, he was clearly not required to do so, because, as the learned Judge has pointed out, the appellant did not in his written statement even allege that there could be no question of any violation of Regulation 112(c), because he himself had not purchased any property in 24-Paraganas. Indeed, his letter of 5-11-1952 can be explained only on the basis that he treated the purchase as one made by himself and it is also relevant to remember, as the learned Judge has pointed out, that his resistance to the first charge before the Enquiring Officer and the other authorities was not on the facts as to the purchase, but on the alleged invalidity of Regulation 112(c).

18. The position with regard to the second charge, however, is altogether different. The charge simply, was that the appellant had purchased a plot of land with a disputed title, knowing that his title was disputed and knowing that a third party was in possession of it with whom he would be involved in litigation and that thereby he had conducted himself in a manner not befitting a police officer. The charge of improper conduct, based on such acts as were alleged, seems a little unusual, but it the Bengal Police have set before themselves a standard of conduct which requires them to avoid purchases of properties which might involve them in litigation, it is a matter of administrative or official policy with which the Court has no concern. On the other hand, it may be a matter for deep satisiaction that the Police force of this country subscribe to an unusually lofty code of official conduct. What however is pertinent to observe is that the charge raised no issues except one as to whether the title to the property purchased was disputed and another as to whether the disputed character of the title was known to the appellant. The question as to whether the purchase was by himself appears to me to have been covered by the first charge. In investigating into the truth or otherwise of the second charge and coming to a decision thereon, the authorities were required to consider only the two issues I have named and none others. So far as the appellant himself was concerned, the charge gave no notice that he would have to meet any case other than a case that his act of purchasing the property in the circumstances alleged had been an improper one. The charge did not put into issue anything beyond the act of the purchase and its propriety in view of the alleged existence of a dispute as to its title.

19. Vet one finds that both in coming to a conclusion as to the truth of the charge and as to what the appropriate punishment to be imposed on the appellant would be, the punishing authority had taken into consideration and had been largely influenced by certain acts said to have been done by the appellant after the purchase. Indeed, one of the acts taken into consideration against him was his involvement in a criminal case against Sarat Chandra Karmakar which was still sub judice and which had for that reason been left out of account by the Enquiring Officer. The initial order of the Deputy Inspector-General, dated 1-10-1953, his final order dated 12-10-1953 and the appellate order of the Inspector-General of Police dated 4-2-1954, are all marked by the characteristic that the decision finally taken against the appellant was based on circumstances which, if they happened at all, happened after the purchase and which, not having been included in the charge, the appellant had never been called upon to answer. Thus, in the initial order of 1-10-1953, the Deputy Inspector-General first refers to certain circumstances and holds that they clearly establish the existence of a dispute over the ownership of the plot. After that finding, the only other finding required to establish the second charge would be a finding as to the appellant's knowledge of the dispute at the time the purchase was made. Instead of applying himself to a consideration of the question of the appellant's knowledge, the Deputy Inspector-General, however, digressed at once to matters subsequent to the purchase. 'Then again, even after the purchase of the land,' he observes and then proceeds to recite a succession of acts alleged to have been done by the appellant. He is said to have erected a boundary wall round the property 'in hot haste' in spite of protests from Sarat's family and when Sarat started a proceeding against him under Section 144, Cr. P. C., he is said to have caused him to be arrested 'over a dog bite' to a small child on the day fixed for the hearing of the proceeding with the result that the petition under Section 144, Cr. P. C. was directed to be filed for non-appearance of the petitioner. After completing the recital of acts allegedly done by the appellant after the purchase, the Deputy Inspector-General concludes that 'all these facts', coupled with the unusual prayer contained in the letter of 5-11-1952, established the second charge clearly and conclusively. It is quite impossible to see what the subsequent acts could have to do with a charge that a person, being a Police Officer, had purchased a property with a disputed title, knowing the title to be disputed. There seems to be little doubt that what the Deputy Inspector-General had in mind was not the impropriety of the purchase itself, but the impropriety of the subsequent conduct of the appellant as he found it, but in allowing his decision to be based on such subsequent conduct, he appears to have overlooked what the charge was into which he was enquiring.

20. It was contended by Mr. Das Gupta, who appears on behalf of the State, that if the facts found by the Deputy Inspector-General of Police included facts which were sufficient to establish the second charge, then the circumstance that he had also referred to other facts would not vitiate the finding. The argument might have deserved some consideration if the sole question to be decided was the propriety or otherwise of the finding made against the appellant. It appears, however, that in deciding on the penalty to be imposed on the appellant, the Deputy Inspector-General of Police was equally influenced by the extraneous considerations. Indeed, the whole of his discussion of the question of punishment in his order of 1-10-1953 relates to the 'un-officer like conduct' of the appellant, as established by the second charge and the first charge is not even mentioned. There seems to be reason to believe that if the first charge had been the only charge against the appellant, the authorities would not have thought of imposing on him so drastic a penalty as one of dismissal. As a matter of fact, in his appellate order, the Inspector-General of Police observed that the appellant

'should have realised that his superior Officers were not vindictive or otherwise so foolish that they would not overlook a bona fide and harmless purchase of a plot of land just because the Sub-Inspector had failed to take official permission for the purchase.'

This observation shows that what really turned the opinion of the authorities against the appellant and influenced them in dismissing him was his conduct in relation to the second charge and, therefore, it becomes all the more important to see whether the decision as to the second charge had been arrived at properly and on proper materials. I have already pointed out that even in considering the charge itself, the Deputy Inspector-General of Police digressed into matters which were wholly irrelevant and it appears from the concluding portion of his order of 1-10-1953 that in arriving at a conclusion on the question of punishment, he digressed even further. Only one of observations made by the Officer against the appellant, while discussing the question of punishment, will illustrate my meaning. 'He has tried to use', observes the Deputy Inspector-General,

'his superior intelligence and knowledge of law (it may be mentioned here that the officer had served in the past as a Court Sub-Inspector for the prosecution of Police cases) to the detriment of the interest of a poor and uneducated villager, not versed in the intricacies of law and who has neither the ability nor the means to fight his case.' And again I might also add another observation 'His conduct in the dog bite case against Sarat Chandra Karmakar is also equally suspicious.'

21. In the final order of the 12th of October, 1953, the Deputy Inspector-General of Police refers back to his previous findings and says that he had already considered the evidence and arrived at findings against the appellant. The consideration referred to included consideration of extraneous matters and consequently the vice of proceeding on matters extraneous to the charge affects the final order as well.

22. The appellate order of the Inspector-General of Police is not different in character and relies on extraneous circumstances even more directly.

'Without going into the legal aspect as raised by the appellant in this appeal, I would like to mention that I have yet to see the owner of a dog being arrested by the Police in a dog bite case. It is quite evident that some other influence, were at work for the arrest of the opponent of the ex-Sub-Inspector. This arrest of the opponent on the particular day is one of the few other significant actions in which the Sub-Inspector had totally misused his powers to acquire and to keep the plot of land.'

I have already stated that the dog bite case was still sub-judice and all that appeared from the papers was that the appellant was cited as a witness in the case. Quite apart from the fact that the appellant's connection with the dog bite case, if there was any such connection at all, was subsequent to the purchase and, therefore, could have nothing whatever to do with the second charge, it is not easy to see how it could be proper or possible for the Inspector-General of Police to assume at the stage he did so, that it was the appellant who had inspired the dog bite case and had contrived to get Sarat to be kept in confinement on the day on which his petition was due to be heard.

23. In my view, the position is that the appellant, having been charged with a particular instance of misconduct on certain acts alleged to have constituted it, was held guilty of that charge on a finding as to those acts and also other acts wholly unconnected with the charge with which he had never been charged and which he had, had no opportunity to controvert. The findings of the authorities and the order consequential thereto cannot, therefore, be maintained.

24. It was contended by Mr. Das Gupta that under Regulation 861 (e) (iii), it was permissible, while awarding punishment, to take into consideration the character of the person charged, The regulation referred to, however, concerns only the Enquiring Officer, but even assuming that the punishing authority can do what the Enquiring Officer can, it is to be noted that the character which can be taken into account is the previous character of the person charged and not his character subsequent to the act charged. In any event, the defect I have noticed is in no way remedied by the provisions of the Regulation relied on by Mr. Das Gupta. The defect is that the appellant, having been charged with misconduct of a particular kind on the basis of certain acts, was found guilty and punished on the basis of those and certain further acts. Such an order cannot possibly be defended.

25. Mr. Das Gupta also contended that the fact that an inferior authority had come to his decision by taking into account matters which it ought never to have taken into account and which were virtually extraneous to what it had to decide, could be no ground for granting certiorari. In support of that proposition, he relied on an authority of a somewhat unusual kind. He pointed out that in the case of R. v. Fulham, Hammersmith and Kensington Rent Tribunal Ex Parte Hicrowski, (1953) 2 All ER 4 (A), Goddard, L.C.J., gave it as one of his reasons for granting certiorari that the Rent Tribunal had taken extraneous matters into consideration, but it appeared from the report of the same case, as published in (1953) 2 QB 147 (A), that the passage relating to consideration of extraneous matters had subsequently been deleted by the learned Lord Chief Justice. From such deletion Mr. Das Gupta argued that the learned Lord Chief Justice must have, on further consideration, come to be of opinion that it could not be a ground for issuing a certiorari that the inferior authority had taken extraneous matters into consideration in coming to its finding. It appears to me that quite apart from the fact that the way in which Mr. Das Gupta would make use of the authority relied upon by him was a strange way, the conclusion sought to be drawn by him in no way follows. It is quite true that express reference to a consideration of extraneous matters was subsequently deleted by the learned Lord Chief Justice, but I do not think that such deletion made any difference to the opinion expressed by him. The facts of the case were that a particular person purchased a certain house in a war-damaged condition and thereafter received a certain amount of compensation from the War Damage Commission. Having received that money, he spent it on a repair of the premises and having repaired it, let it out to a tenant. That tenant went to the Rent Tribunal for a fixation of the rent and rent was fixed. Thereafter, a second tenant was inducted and when he too went to the Rent Tribunal for a fixation of the rent a question arose whether a case under Section 2 (3) of the Furnished Houses (Rent Control) Act, 1946, had been made out. The section authorises both the lessor and the lessee of any premises to refer a ease to the Tribunal for reconsideration of the rent ''on the ground of change of circumstances'. The learned Lord Chief Justice held that 'the change of circumstances' contemplated by the section was change alleged by the person who went to the Rent Tribunal and accordingly concluded that since the tenant in the case before him had not alleged any change of circumstances, the Tribunal never acquired any jurisdiction to reconsider the rent under Section 2 (3) of the Act. The Tribunal had found a change of circumstances in a discovery that the landlord had received compensation from the War Damage Commission and on that footing had reopened the whole case even to the extent of reopening the rent fixed at the instance of the first tenant. The Court composed of the learned Lord Chief Justice and two other Judges unanimously held that this the Tribunal could not do. It appears to me that since the learned Lord Chief Justice, even in his final judgment said that the jurisdiction of the Tribunal under Section 2 (3) of the Act arose only if a certain change in the circumstances had been alleged by the person invoking its jurisdiction, he necessarily held that the matters, upon which the Tribunal had proceeded, were extraneous to the issue before it and since those matters had been taken into consideration, the decision of the Tribunal was bad and liable to be quashed by a writ of certiorari. The other two learned Judges would not limit the change of circumstances to circumstances alleged by the person invoking the jurisdiction of the Rent Tribunal, but they too held that the Tribunal would have jurisdiction only if a certain change of circumstances had taken place since the rent was last fixed, but it would have no jurisdiction when there was no such change of circumstances. The circumstance which the Tribunal had taken into consideration was a circumstance which had occurred even before the fixation of the rent at the instance of the first tenant and since the Tribunal had proceeded on that circumstance, which was condemned, it follows that even in the view of the colleagues of the learned Lord Chief Justice, the Tribunal had proceeded on considerations wholly extraneous to the issue before it. I do not, therefore, find any authority in the decision relied, upon by Mr. Das Gupta for holding that according to the present learned Lord Chief Justice of England, importation of extraneous circumstances by any inferior tribunal cannot be a ground for quashing its finding by a writ of certiorari. Mr. Das Gupta also drew our attention to the reference to the case as contained in Halsbury's Laws of England, 3rd Ed. Vol. I, p. 62, and submitted that the Editor of Halsbury had also understood the case as having ruled that importation of extraneous circumstances by an inferior tribunal in arriving at its finding could not be a ground for the issue of a writ of certiorari. The note relied on by Mr. Das Gupta in no way supports his contention. Indeed, it refers to another case decided by the Privy Council and quotes it as an authority for the proposition that certiorari and mandamus will lie if the inferior authority has taken into consideration matters outside the ambit of its jurisdiction and beyond the matters which it was entitled to consider and then, after referring to the case as reported in (1953) 2 All ER 4(A), as another authority laying down the same proposition, points out that the relevant passage has been omitted from the report in the Official series. That, to my mind, is only a statement of fact. What the author's view of the law is, appears from his citation of the decision of the Privy Council.

26. For the reasons I have given, we must hold that the orders made against the appellant cannot be sustained. We accordingly allow the appeal, set aside the order of Sinha, J. and quash the order of the Deputy Inspector-General of Police, dated the 1st of October, 1953, his order dated the 12th of October, 1953 and also the order of the Inspector-General of Police dated the 4th of February, 1954. The enquiry proceedings were also bad, as they went beyond the ambit of the charges. The proceedings up to and including the submission of the first written statement by the appellant, but not the enquiry following thereupon, having been valid, will not be affected by this order and the respondents will be entitled to proceed from that, stage according to law, if they so desire. The appellant having been found to have been dismissed by an illegal order the order of suspension passed against him will fall to be governed, so far at least as the period subsequent to his dismissal is concerned, by the principles laid down by the Supreme Court in the case of Om Prakash Gupta v. State of Utter Pradesh, : (1956)ILLJ1SC .

27. The appellant will have the costs of this appeal which we assess at five gold muhurs.

S. C. Lahiri, J.

28. I agree.

Subsequent order on application for review of judgment (10-7-1958)

P. Chakravartti, C. J.

29. After judgment in this case had been delivered and signed, it was represented to us by Mr. Dutta Roy, who appeared on behalf of the appellant, that he had subsequently discovered a decision of the Supreme Court, according to which one direction given in the ordering portion of our judgment could not be correct. He, therefore, prayed that the ordering portion might be amended so as to bring it into conformity with the judgment of the Supreme Court. On that prayer being verbally made to us yesterday, we directed the case to be set down in the List to-day as 'To be Mentioned'. It has appeared in the List to-day and Mr. Das Gupta has appeared on behalf of the respondents. The application verbally made by Mr. Dutta Roy is virtually an application for review, based on material subsequently discovered. On our enquiring of Mr. Das Gupta whether he insisted on a formal application, he replied that he would not insist on a formal application and that we might proceed to consider Mr. Dutta Roy's prayer on the merits. We then heard the learned Advocate for the parties.

30. The direction to which Mr. Dutta Roy's submission had reference was as follows :

'The appellant having been found to have been dismissed by an illegal order will, in any event, be treated as having been under suspension throughout from the date when he was suspended.'

Mr. Dutta Roy has pointed out to us that in the case of : (1956)ILLJ1SC , the Supreme Court had held that where, pending an enquiry against a Civil Servant, a suspension order was passed against him and finally he was dismissed, the order of suspension lapsed as soon as the order of dismissal was passed and if the order of dismissal was itself set aside subsequently as having been illegally made, the order of suspension, having already lapsed, could not revive. In the case before the Supreme Court, the Government servant concerned had sued for arrears of his salary after it had been held in a previous proceeding that he had been illegally dismissed. If the order of suspension lapsed as soon as an order of dismissal was passed and if it could not subsequently revive, if the order of dismissal was set aside, a question would obviously arise as to whether the Government servant concerned would be entitled to be treated as having been in service and entitled to his proper salary therefor for the whole period commencing on the date when he was placed under suspension till he was actually restored to his post. It appears, however, that before the Supreme Court, the Civil Servant concerned gave up his claim with respect to the period between the date of the order of suspension and the date of the order of dismissal and, consequently, the court was not called upon to make any pronouncement as regards his claim to his salary for that period. The claim made for the subsequent period was allowed in the view that upon an order for dismissal being set aside as illegjal, an order for suspension, previously made, pending the enquiry, could not survive.

31. The direction given in our judgment to the effect that the appellant would have to be treated in any event as having been under suspension throughout from the date when he had been suspended was thus contrary to the decision of the Supreme Court, so far at least the period subsequent to the order of dismissal is concerned. Mr. Das Gupta who appears for the respondents does not dispute that the direction given by us cannot be correct in view of the decision of the Supreme Court. I have already pointed out: that the actual decision of the Supreme Court only covers the period subsequent to the order of dismissal, but with regard to the previous period, there is no decision. That being the scope and extent of the decision of the Supreme Court and the direction given by us being inconsistent with that decision, we allow. Mr. Dutta Roy's application for review, verbally made, and direct by way of a review of our judgment that for the sentence. 'The appellant having been found to have been dismissed by an illegal order will, in any event, be treated as having been under suspension throughout from the date when he was suspended'', the following be substituted :

'The appellant having been found to have been dismissed by an illegal order, the order of suspension passed against him will fall to be governed, so far as least as the period subsequent to his dismissal is concerned, by the principles laid down by the Supreme Court in the case of Om Prakash Gupta v. The State of Uttar Pradesh, : (1956)ILLJ1SC .'

32. I may place it on record that we have made the substitution in the original judgment, but a copy of this order shall also be placed on the record.

S.C. Lahiri, J.

33. I agree.


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