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Makhanlal Roy and ors. Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. Nos. 342 to 344 of 1960 (Mandamus)
Judge
Reported inAIR1963Cal6
ActsConstitution of India - Article 226; ;Police Act, 1861 - Section 7; ;Bengal Police Regulations - Rules 883 and 888
AppellantMakhanlal Roy and ors.
RespondentState of West Bengal and ors.
Appellant AdvocateArun Kumar Dutt (II) and Baldev Khoji, Advs.
Respondent AdvocateNirmal Chandra Chakravarti, Govt. Pleader and ;Nirmal Chakravarti, Adv.
DispositionAppeal dismissed
Cases ReferredDaryao v. State of U. P.
Excerpt:
- .....police act (act v of 1861) provides that subject to such rules as the state government may from time to time make under this act, the inspector general, deputy inspector general, assistant inspector general and district superintendents of police may at any time dismiss, suspend or reduce any police officer of the subordinate rank whom they shall think remiss or negligent in the discharge of his duty or unfit for the same. it is under these provisions that the police regulations, at any rate, such of them to which we shall presently refer, have been framed.13. chapter xvii of the regulations relates to punishments and appeals. punishments are divided into major and minor punishments. amongst the major punishments are dismissal, removal from service and reduction, in these appeals we.....
Judgment:

Debabrata Mookerjee, J.

1. These three appeals have been heard together since they involve a common question of law. It would not be necessary for us to detail the facts of each of them; suffice it to say that the three appellants were members of the police force, being Sub-Inspectors who were dismissed from service on charges of misconduct. The charge against each of them is set out in extenso in the paper book of the respective appeals.

2. After the orders of dismissal had been made, an application under Article 226 of the Constitution for appropriate writs to quash the orders was preferred to this Court. The three appellants joined in one application for the writs and Sinha, J. who dealt with it dismissed it in limine by an order, dated February 23, 1959. In that order the learned Judge dealt with the several questions raised, and held that none of them called for the issue or a Rule requiring the respondents to show cause against the orders of dismissal complained of. From the order made it appears that four points were specifically urged before the learned Judge in support of the application. Each one of these points received separate consideration, and all of them related to the merits of the case affecting each of the appellants.

3. It does not appear clear when thereafter these appellants preferred appeals from the order of Sinha, J., but there are indications in the record suggesting that the decision was challenged in appeal which does not appear to have been prosecuted. What appears clear, however, is that an appeal was preferred in each case to the Deputy Inspector General of Police on December 14, 1959, challenging the order of dismissal made on November 30, 1958. The appeals were lodged after the time limited by Rule 883 of the Police Regulations, Bengal had expired. That Rule provides for an appeal to be lodged within thirtyseven days of the order appealed from. The Appellate Authority refused to entertain the appeals on the ground that they had been barred by time. A further observation was made that satisfactory explanation had not been offered explaining the delay in lodging the appeals within the time limited by the Rule referred to above. It seems to us that Rule 883 has statutory effect which prescribes amongst other things the period of limitation within which appeals have to be brought. This order dismissing the appeals was made on February 4, 1960, by the Deputy Inspector General of Police.

4. On February 24, 1960, the appellants again applies under Article 226 of the Constitution for appropriate writs to quash the orders of dismissal made on November 30, 1958, as well as the appellate order refusing to entertain the appeals made by the Deputy Inspector General of Police on February, 4, 1960. This application also came to be heard by Sinha, J. who upon a consideration of the questions raised came to the conclusion that it was no longer open to the appellants to reagitate the matter for a second time in an application under Article 226 of the Constitution.

5. This time the three appellants made separate applications asking for identical reliefs. They were, however, dealt with by the learned Judge together since they raised a common question which could conveniently be disposed of by one order. The learned Judge set out the preliminary facts and proceeded to consider whether in the circumstances that had happened, it was still open to the appellants to reopen the question of the legality or propriety of the orders of dismissal by means of a second application under Article 226 of the Constitution. He held that the applicants were 'precluded on principles analogous to res judicata' to reagitate identical questions which had been raised and decided in the previous application under Article 226 of the Constitution. The learned Judge observed,

'The same grounds are urged and against the same order and the same reliefs are asked, namely, setting aside of the dismissal of the petitioners.'

He then noticed the argument advanced on behalf of these appellants that the principles of res judicata or principles analogous thereto did- not apply to the present case. The learned Judge negatived that contention, held in effect that where, as here, the matter had been decided on reference to the merits, it could not be reopened on grounds substantially the same as had been dealt with and disposed of in the earlier application.

6. It is this order of Sinha, J., dated July 11, 1960, which is under challenge in these three appeals. Mr. Dun appearing on behalf of the appellants has tried to argue that this Court had not yet established a practice of refusing relief on a second application under Article 226 of the Constitution provided the application possesses merits. Reference was made to various authorities to induce us to hold that properly understood the practice in England governing the issue of prerogative writs does not bar a second application for relief under Article 226 of the Constitution. The question would have been of interest and would perhaps have required investigation, but for the fact that it has been concluded by an authoritative pronouncement of the Supreme Court in the case of Daryao v. State of U. P., : [1962]1SCR574 . There the question was raised whether a previous application tinder Article 226 would bar relief under Article 32 of the Constitution. Gajendragadkar, J. who spoke for the Court held that if the previous petition filed in the High Court under Article 226 was dismissed not 'n the merits, but on account of the laches of the party applying for the writ, or on the ground that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32. The learned Judge proceeded to observe that if a writ petition was dismissed in limine by an order pronounced in that behalf, the question whether the dismissal would bar a second application would depend upon the nature of the order. If the order is made on the merits it would constitute a bar; if the dismissal was for the reason that the petitioner had been guilty of laches, or that he had an alternative remedy, it would not be a bar. Again if the petition was dismissed in limine, without passing a speaking order, then such dismissal could not be treated as creating a bar. The learned Judge pointed out that in the absence of a speaking order, it would not be easy to decide what factor weighed in the mind of the Court -- a circumstance which would make it difficult and even unsafe to hold that such a summary dismissal was a dismissal on the merits, so as to constitute a bar of res judicata. Similarly if a petition is withdrawn, it cannot be a bar to a subsequent petition under Article 32 since in such a case there has been no decision on the merits. A fortiori a previous disposal on the merits, even though summary, of an application under Article 226 would bar a subsequent application for the same reliefs under the same article.

7. These observations are, in our opinion, sufficient to dispose of the present appeals; but Mr. Dutt has argued that there is another observation in the judgment of the Supreme Court to the effect that unless there is contest, the question of the order acquiring finality does not arise. It is desirable to consider the context of the passage upon which Mr. Dutt relies. It reads thus:

'.... On general considerations of public policy there seems to be no reason why the rule of res judicata should be treated as inadmissible or irrelevant in dealing with petitions filed under Article 32 of the Constitution. It is true that the general rule can be invoked only in cases where a dispute between the parties has been referred to a Court of competent jurisdiction, there has been a contest between the parties before the Court, a fair opportunity has been given to both of them to prove their case, and at the end the Court has pronounced its judgment or decision. Such a decision pronounced by a Court of competent jurisdiction is binding between the parties unless it is modified or reversed by adopting a procedure prescribed by the Constitution, in our opinion, therefore, the plea that the general rule of res judicata should not be allowed to be invoked cannot be sustained.'

Reading the passage as a whole we think that one cannot have any doubt that what his Lordship was emphasising was the fact that the principle of res judicata was applicable to writ applications as much as to other proceedings, provided the requisite conditions were satisfied. In our view, it would not be right to read this passage in isolation from the rest of the judgment and to seize upon the word 'contest' appearing in the passage. If it was intended to be laid down as a general proposition that the order on a writ petition was to acquire finality on principles analogous to res judicata only when there was contest between the parties, there would not, in our view, have occurred in the same judgment observations to the effect that even in the case of summary dismissal of a petition, the principle might well apply provided there has been a decision on the merits. Reading the judgment as a whole, it seems to us that the Supreme Court did not intend to lay down the proposition that there must be a contest in order that an order on a writ application may acquire finality. On the other hand, we read the judgment as a pronouncement laying down in clear terms that if a petition is dismissed in limine by a speaking order which disposes of the merits of the application, the order would attract: the attribute of finality; in such a case the principle analogous to res judicata may well apply.

8. Mr. Dutt emphasised the absence of contest and the ex parte character of the first application to induce us to hold that even if Sinha J. had considered the merits of the matter, nevertheless, the order not having been passed on contest, or, at least, in the presence of the other side, the second set of applications out of which the present appeals arise, could not properly be treated as having been barred. We are not prepared to say that unless there is contest, an order made under Article 226 of the Constitution cannot be pleaded in bar to a second application provided the other conditions are fulfilled. It is to be observed that the objects of the two applications were the same; the questions involved were the same; the grounds were the same; and the reliefs asked for were also the same. In such circumstance, we think the mere fact that the first application under Article 226 was not disposed of on contest in the presence of the other side would not make the order ineffective for the purpose of barring a second application on principles analogous to res judicata.

9. It must, however, be said that in the second set of applications which has given rise to these appeals, there was a slight addition to the prayers in that the order made by the appellate authority, viz., the Deputy Inspector General of Police was also sought to be challenged; but that was not the primary ground of complaint. The real grievance was with regard to the orders of dismissal made earlier by the Superintendent of Police which were the subject-matter of the first as well as of the second set of applications. The appellate order having supervened after the disposal of the first application, it was just included in the prayer portion of the petitions in the second set as being one of the orders under challenge. That, in our view, makes no difference in the result, and we must hold that the two applications were on identical grounds, made by the same applicants against the same respondents and asked for identical reliefs. We think in the circumstances that the necessary conditions have been fulfilled which will attract operation of principles analogous to res judicata.

10. It is to be observed that the order of Sinha, J. on the first application was not passed On technical grounds. It considered the merits of the matter and the learned Judge gave reasons for overruling the objections to the orders of dismissal which were under challenge. It is not that the learned Judge threw out the first application on the ground that the applicants had not exhausted their statutory right of appeal. Indeed, the learned Judge noticed in the order, on the second set of applications, which, is now under appeal, that the failure to exhaust statutory remedies was no ground for barring relief under Article 228 provided the applicants were otherwise found entitled to it. That being the position, it must be held that the appellants were not entitled to seek the assistance of Court for the second time by an application under Article 226 of the Constitution.

11. A subsidiary point was made by Mr. Dutt in support of the appeals. It appears that directly alter the order of dismissal had been made, the appellants moved this Court under Article 226. That was their first application. When that application was dismissed, they thought it expedient to change the line of attach. They had recourse to the statutory right of appeal given to them by the Police Regulations, Bengal. They took an appeal to the Deputy Inspector General of police. When that appeal was preferred, the time limited by the Regulations for preferring an appeal had elapsed. Accordingly in the petition of appeal they prayed for condonation of delay and desired a personal hearing. The appellate authority considered the matter and came to the conclusion that no circumstance had been proved to exist which would justify condonation of the delay that had occurred in preferring the appeal. The appeal was, therefore, not heart on the merits. Mr. Dutt has contended that the course adopted by the appellate authority was not sanctioned by law, and invited our attention to certain provisions in the Regulations. In order to be able to appreciate Mr. Dutt's criticisms, it would be necessary to briefly notice those provisions.

12. But before we do so, it is perhaps right to observe that the Regulations to which our attention was drawn have the sanction of statutory law, and the marginal notes indicate which of them have statutory effect. As is well known, Section 243 of the Government of India Act, 1935, provides that the conditions of service of subordinate ranks of various police forces of the country shall be such as may be determined by or under the Acts relating to those forces respectively. Section 7 of the Police Act (Act V of 1861) provides that subject to such rules as the State Government may from time to time make under this Act, the Inspector General, Deputy Inspector General, Assistant Inspector General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate rank whom they shall think remiss or negligent in the discharge of his duty or unfit for the same. It is under these provisions that the police Regulations, at any rate, such of them to which we shall presently refer, have been framed.

13. Chapter XVII of the Regulations relates to punishments and appeals. Punishments are divided into major and minor punishments. Amongst the major punishments are dismissal, removal from service and reduction, in these appeals we are concerned with dismissal from service. No major punishment can under the Regulations be awarded to any member of the police force except upon framing a definite charge in support of which evidence is required to be recorded. The person charged has to be given reasonable time to make his written defence and to state whether he desires to be heard in person. After evidence has been taken and the delinquent officer given adequate opportunity to be heard, an order of dismissal, or removal from service or reduction may be made. It has been said that matters of discipline and punishment of clerks of the police department are governed by the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936. At one stage of the argument Mr. Dutt attempted to say that the time for presentation of appeal mentioned in the Police Regulations is different from that stated in the Bengal Subordinate Service (Discipline and Appeal) Rules. We think these latter Rules are wholly inapplicable to the present case. Indeed, so far as clerks attached to the police department are concerned, there is a separate set of rules appearing in Appendix LII of the Regulations.

14. In the case of an order of dismissal made by a Superintendent of Police, the Regulations provide that an appeal shall lie to the Deputy Inspector General of Police. Rule 883 is an important rule which says, 'Petitions of appeal or for revision shall be presented to the officer against whose order the appeal is preferred within 37 days of the date of receipt of the order by the petitioner'; the rest of the rule need not be referred to; it relates to the requisites for the purpose of preferring an appeal. By Rule 888 officers are forbidden to submit direct to higher authorities petitions complaining of 'removal, suspension or reduction. The rule explains that 'petition' includes memorials, letters and applications in the nature of petitions. Clause (c) of the rule says that petitions, unless addressed to certain stated authorities, may be withheld by the Superintendent of Police on several grounds, one of them being an appeal against an appellate order in a case in which no further appeal lies (Clause iv). Clause (xiii) says that if the petition is a representation against an order communicated to the petitioner more than six months before the submission of the petition, and no satisfactory explanation of the delay is given, then the authority mentioned in Rule 888 (e) may withhold such petition. Mr. Dutt has relied upon this last provision for the purpose of impressing upon us that the period of limitation for an appeal mentioned in Rule 883 can be relaxed in view of this provision, The argument is that the appellate authority, in this instance, the Deputy Inspector General of Police, erred in holding that the departmental appeal which the appellants had preferred was barred by time and the rule requiring an appeal to be filed within 37 days cannot be relaxed. Even if we proceed on the tooting that Clause (xiii) includes an appeal, the period there mentioned is six months, and if any petition is presented alter that period and no satisfactory explanation is forthcoming for the delay, the authority named in Rule 888 (e) will be well entitled to withhold it.

15. In this case it seems that the appeal to the statutory authority was not preferred until about a year had elapsed; that apart there is no question of 'withholding' any petition in the present case. We have referred to Clause (xiii) out of deference to Mr. Dutt's argument that the clause is indicative of the view that no firm period of limitation was intended to be prescribed for an appeal to be preferred, nor was there anything in the Regulations which would debar the appellate authority from extending time for preferring an appeal by condoning the delay that might have occurred. It is true that there is no provision in the Regulations to the effect that the appellate authority suffers from any kind of disability to extend time. Such a provision, in our view, would be most unusual. There is however, nothing in these Regulations which would indicate that the legislative intent was that the appellate authority should have power to condone delay, when such delay occurred in matters of appeal which have been specifically provided for in Rule 883. This is a clear provision which limits the period of time of preferring an appeal to 37 days of the date of receipt of the order appealed from. We are not prepared to read this provision along with the one to be found in Clause (xiii) of Rule 888 (e) which, we think, is an entirely separate provision having nothing to do with appeals properly so called.

16. If such is the position, we think the appellate authority in this case would have no power to entertain the appeal. The power to extend time and condone delay in appeals cannot be spelt out from the provision contained in Rule 888 (e) (xiii). If the appellate authority did not possess the power to condone delay, the appeal could not possibly be entertained, and the appellate authority was bound under the law to dismiss it.

17. Mr. Dutt then tried to argue that the Regulations, properly read, imply that an appellant before the statutory authority must be heard, provided he desires a personal hearing. The argument is that if that is the position, he should also be heard in support of the application for condonation of delay. This appears to us to be a wholly unwarranted extension of the fight of person at hearing. Even if it is held that the appellant has a right to be heard, it cannot be said that that right obliges the appellate authority to hear him in support of an application for condonation of delay in preferring an appeal. There is, indeed, no power in the appellate authority to excuse delay, and if it has no such power, surely it cannot acquire any at the appellant's request. We are not satisfied that the appellate authority acted illegally or even improperly in refusing to entertain the appeal which was clearly barred by time. It may be observed in passing that this aspect of the matter relating to the failure on the part of the appellate authority to extend time and condone the delay that occurred in preferring the appeal, was not even argued before the learned Trial Judge. We have, however, taken this point into consideration out of deference to Mr. Dutt's argument.

18. As we have seen the order from which theses appeals have been brought properly points out that it was not open to the learned Judge in the circumstances that had happened to reconsider the question of dismissal which had been disposed of on the merits by his earlier order, dated February 23, 1959. The reasons given by the learned Trial Judge are quite convincing, and we have found nothing in them which will justify our interference,

19. The appeals fail and are dismissed. There will be no order as to costs.

Bose, C.J.

20. I agree.


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