1. The facts in this case are shortly as follows: The petitioner Santosh Kumar Dutt, was appointed in the year 1919 as a member of the Calcutta Police Force, to work as a literate . Constable. It is a matter of dispute as to who appointed him. The learned Government Pleader says that the original record of his appointment is not available. Mr. Das Gupta however has drawn my attention to Section 10(1), Calcutta Police Act (hereafter referred to as the 'Act') as it stood before the Government of India 'Adaptation of Indian Laws Order 1937'. It ran as follows:
'The appointment of the members of the Police Force shall rest with the Commissioner of Police; and he may at any time suspend or dismiss any member of the force whom he shall think remiss or negligent in the discharge of his duties or otherwise unfit for the same.'
2. The learned Government Pleader admits that the Commissioner of Police did have such power, but he argues that under Section 5 of the Act, the Provincial Government may from time to time appoint one or more deputies to the Commissioner of Police who shall be competent to perform any of the duties assigned to them under his orders. No such order has been placed before me to show that at the relevant date, the Commissioner of Police had delegated his power of appointing members of the Police Force. The position therefore is that prima facie it is the Commissioner who was the appointing authority in 1919 and the respondents are not in a position to show that such power had been delegated to any other Officer.
3. On 2-8-1939, Mr. Fairweather, the then Commissioner of Police, passed an order No. 2050 dated 2-8-1939 whereby the petitioner was promoted to act as a Sub-Inspector, with effect from 1-8-1939. This order is headed 'Commissioner's Order' and a true copy of this order has been produced by the respondents, which shows that the order was signed by Mr. Fairweather himself. By a similar order No. 1694 dated 24-5-1943, signed by Mr. Fairweather, the petitioner was appointed Sub-Inspector on probation. By another orderbeing order No. 2768 dated 4-7-1944, the petitioner who was then acting as a probationer Sub-Inspector was confirmed in his appointment. This last order is signed by Mr. Ray, the then Commissioner of Police.
It appears that all these three orders are counter-signed by the Deputy Commissioner of Police, Headquarters and an argument was sought to be made before me that these orders are not of the Commissioner but of the Deputy Commissioner of Police, Headquarters. This argument in my opinion, must at once be rejected. These orders all bear the heading 'Commissioner's order' and are signed by the Commissioner of Police. I do not know under what circumstances or for what purpose they were counter-signed by the Deputy Commissioner of Police, Headquarters. It is impossible however to treat these orders as that of a subordinate officer when they purport to be the commissioner's orders and are signed by the Commissioner of Police himself. Regard being had to the three orders mentioned above, there can be no doubt that the appointing authority of the petitioner was the Commissioner of Police.
The learned Government Pleader has placed before me a certain letter from the Government of Bengal Police Department, and also some printed rules relating to recruitment of subordinate ranks of the Calcutta Police. From the letter it appears that the rules were framed under Section 9, Calcutta Police Act and were approved by Government. It shows that in respect of Sub-Inspectors in the unarmed branch, the appointing authority is the Deputy Commissioner of Police Headquarters. It is by no means clear however as to whether in cases of promotion the Deputy Commissioner of Police Headquarters could be said to be the appointing authority.
There is nothing before me to show that these Rules were in operation in 1919, 1939, 1943 or 3944. Assuming however that these Rules were in operation, and that cases of promotion could also be taken as appointment, it is clear that these Rules did not take away the right of the Commissioner of Police granted by the Act. At best, the Deputy Commissioners have delegated authority. If the Commissioner of Police chooses to exercise his power conferred by the Act, it cannot be held to be invalid. The orders plainly show that the Commissioner of Police has exercised his right and he is the appointing authority in the case of the petitioner.
4. On 28-5-1952, the petitioner was placed under suspension and departmental proceedings were drawn up against him. On 26-6-1952 he was asked to show cause. It was alleged that he did not show certain assets which by Rules introduced by a circular issued by the State Government he was bound to show. It is not necessary for me to go into the merits of the case or to construe the circular. Mr. Das Gupta has confined himself to only two points. Firstly he says that the appointing authority being the Commissioner of Police, the dismissal of the petitioner by the Deputy Commissioner of Police, Security Control, is Incompetent. The second point is that the departmental enquiry has violated Rule 5 of the rules framed for the conduct of departmental proceedings under the Calcutta Police Act. With regard to the first point I have already shownthat the appointing authority of the petitioner was the Commissioner of Police, and therefore he could not be dismissed by an order passed bythe second respondent the Deputy Commissioner of Police, Security Control, who is an officer subordinate to the Commissioner of Police. This violates the provision of Article 311(1) of the Constitution.
5. This would have been sufficient to dispose of this Rule, but as the second point has been raised, I shall deal with it. There is before me the order sheet relating to this departmental enquiry. It is admitted that departmental enquiries in relation to members of the Calcutta Police Force have to be conducted in accordance with the rules which were published in the Calcutta Police Gazette dated 21-4-1949, 3-6-1949, 17-6-1950 and confirmed on 16-7-1951. Under the Rules, the proceedings have to be drawn up in a particular form. Definite charge or charges have to be drawn up and a copy given to the delinquent. Then evidence has to be recorded, The delinquent has a right to call witnesses and to cross-examine witnesses giving evidence against him. There are also rules about documents that are intended to be used. Rule 5 is as follows: 'After the evidence has been recorded, the delinquent shall be allowed to take a copy and shall be given reasonable period in which to submit his defence. The delinquent shall not be represented by a pleader but there is no objection to his getting outside help to draft his written defence. The delinquent shall be given a personal hearing by the officer empowered to pass final orders. If the person charged does not wish to add anything to his written statement this fact shall be noted in the Order sheet. If the person charged does not wish to be heard personally, that fact also should be recorded in the Order Sheet. If the person charged refuses or expresses or states that he does not desire to put in a written statement in his defence, that also should be recorded in the Order Sheet.'
6. Rule 6 lays down that after the evidence of the witness has been recorded and the defence of the person charged placed on record, the officer conducting enquiry shall in writing arrive at a finding on each charge and if it was proposed to dismiss or reduce in rank, the officer should be told so specifically and given a chance to show cause against the proposed punishment being inflicted. It is clear therefore that after the evidence has been taken and the written statement filed, the delinquent must be given a personal hearing. This is considered as of some importance because the Rules state that if the person charged does not wish to be heard personally, that fact should be recorded in the Order sheet. In this particular case the provisions of Rule 5 have clearly been violated. After the written statement had been filed on 23-6-1952, the Order sheet shows that the next thing that happened was on 26-6-1953, when the finding was arrived at and the delinquent was given a copy of the finding and asked to show cause why he should not be dismissed as the charges had been proved against him.
7. An attempt has been made in the counter affidavit to show that the delinquent had an opportunity of a personal hearing. The learnedGovernment Pleader argues that the Rules do not make it incumbent to show in the Order sheet that a personal hearing has been accorded. I have not been able to understand the argument. There is no rule that an order sheet should at all be kept, but I presume that the order sheet is kept so that a record will be available as to what actually happened. The order sheet does not show that any personal hearing was accorded. According to the rules it is incumbent to grant a personal hearing and if the petitioner does not wish to have a personal hearing, that fact should be recorded.
In paragraphs 6 and 7 of the counter affidavit it is said that the second respondent considered the evidence, came to a finding and gave to the petitioner a copy of the finding and then asked him to show cause why he should not be dismissed. Upon that being done, on the following day, that is, on 27-3-1952, the petitioner came and saw him in his office when he was asked to say if he had anything to tell against the finding. There is no such entry in the order sheet, the next entry being on the 28th June which says 'final order is passed.' Firstly, I do not think that it is possible for a busy official like the second respondent to remember all that had happened in the course of departmental proceedings years ago and secondly, when an elaborate order sheet is kept, it would be dangerous to proceed to rely on facts which do not appear therein. It is quite possible that the respondent No. 2 is making a confusion between the departmental proceedings and another, since he must be dealing with a large number of such cases. But in any event, Rule 5 contemplates that after the evidence has been concluded and the written statement filed, the delinquent must be given an opportunity of a personal hearing before the enquiring officer comes to a finding. There is no sense in giving a personal hearing after the finding. So far as the second opportunity is to be given to show cause against the punishment upon a proved charge, that comes not under Rule 5 but under Rule 6 (ii). Therefore, at the very best, the statement in paragraph 7 of the counter affidavit relates to the second opportunity that had to be given under Rule 6(ii). There has been no opportunity given for a personal hearing under Rule 5. There is therefore a clear violation of the Rules that have been framed for the conduct of departmental proceedings so far as the Calcutta Police is concerned. The learned Government Pleader does not contest the proposition that where rules have been framed, they must be followed.
8. For the reasons aforesaid, the rule is made absolute, the order of dismissal of the petitioner dated 28-6-1952 passed by the second respondent is set aside and/or quashed. A Writ in the nature of Mandamus will issue directing the respondents not to act upon or give effect to the said order. The respondents will now proceed according to law.
9. Regard being had to the facts and circumstances of the case, I make no order as to costs.
10. The three orders, that have been produced by the respondents at the hearing mentioned above, will be kept in the record.