1. This is an appeal by the Secretary of State for India in Council from a decision of the learned Subordinate Judge, Dinajpur, passing a decree in favour of the plaintiff-respondent in this Court, for Rs. 780 by way of damages for wrongful dismissal from Government service. The case before the Court was that the plaintiff was a Sub-Inspector of Police, and as such had to investigate into several dacoities, bad livelihood cases and a gang case in the year 1921. On a confidential enquiry made as to the conduct of another police officer, it transpired from statements of some persons that the plaintiff had extorted money from various persons, and had attempted to obtain illegal gratification, by using threats of house search, arrest and other injuries. After those statements had been recorded, the plaintiff was directed to show cause why he should not be dismissed on the ground that he had obtained illegal gratification in the shape of money, by means of extortion practised on persons named in the charges framed against the plaintiff by the Superintendent of Police on 24th July 1924. It would appear that after proceedings were drawn up, the plaintiff was allowed to take copies of the statements of persons on the basis of which, the charges were framed, and some of those persons were cross-examined, during the course of the proceedings, by the plaintiff, having been summoned to appear at his instance, the plaintiff not having considered it necessary to cross-examine others.
2. In addition to the witnesses previously examined in the absence of the plaintiff, other witnesses were examined and cross-examined during the course of the proceedings instituted against the plaintiff, and he was dismissed from service on 7th December 1924 by the order of the Superintendent of Police. There was appeal and representation to the higher authorities; and the order of dismissal was ultimately affirmed by the Government of Bengal on 6th July 1925. The questions raised in the case before the Court below, and the points raised in this appeal, related to irregularities in the proceedings held in the matter of dismissal of the plaintiff from service, which was characterised as illegal dismissal. The claim for damages was on that basis. It was asserted that the Superintendent of Police holding the enquiry did not comply with the provisions of the Police Regulations, Bengal, Vol. 3, Rule 108(a), which lays down that witnesses shall be examined in the presence of the officers proceeded against. It was in the next place asserted that the Superintendent of Police acted illegally in not complying with the provisions of the Police Regulation, Bengal, Part 3, Rule 88(b), which lays down that in cases of misconduct arising out of, or in connexion with judicial trials and criminal proceedings, the Superintendent of Police shall not inflict any punishment without previous consultation with the District Magistrate, and the case of the plaintiff was that the proceedings arose out of allegation of bribery in connexion with Akbarpur Dacoity case.
3. The Judge in the Court below has held, and we are in agreement with his decision in this part of the case, that Rule 108(a) referred to above, on which the plaintiff relied, applied to the enquiry held into the plaintiff's conduct as a police officer. The question however remains whether it could be said on the facts and in the circumstances of the case as disclosed by the materials on the record, that plaintiff could claim relief by way of damages, simply by showing that the letter of the rule was not followed. In our judgment, the conduct of the plaintiff during the enquiry had to be taken into consideration in determining whether the non-examination of certain persons in his presence, during the course of the enquiry, amounted to such an infringement of the provisions of a rule of procedure, and was such an irregularity as could entitle the plaintiff to claim damages for an order of dismissal by the authorities concerned, which was ultimately confirmed by the Government of Bengal. In this connexion reference has to be made to the evidence given by the Suprerintendent of Police by whom the enquiry leading to the dismissal of the plaintiff, was held in the year 1924, as a witness in the case. According of him, the plaintiff was asked if he wanted to have the witnesses examined in his absence before charges were framed, examined again, and he was told he could do so; we see no reason to doubt the veracity of the witness on this point, although the plaintiff wanted to make out by his own evidence before the Court that he was never told that if he so wanted, he could have the witnesses previously examined in the course of preliminary enquiry, examined in chief again in his presence. There is no question that facilities were given to the plaintiff in the matter of obtaining copies of the statements of those witnesses, and all of them whom the plaintiff wanted to cross-examine during the course of the proceedings, were summoned to appear, and were cross-examined by the plaintiff.
4. In addition to that, the plaintiff had to admit in his cross-examination before the Court, that he did not ask that the 19 witnesses might be examined in chief again in his presence. On the materials, we have no hesitation in coming to the decision that the departmental rule of procedure under which the enquiry leading to the dismissal had to be held, was sufficiently and substantially complied with; and that a claim for damages could not be allowed, on the score of an irregularity which was condoned by the plaintiff himself, during the progress of the enquiry, by the Superintendent of Police. The second irregularity and non-compliance with rules of procedure, complained of by the plaintiff, was the one relating to consultation with the District Magistrate before infliction of punishment by the Superintendent of Police. The rule provided for consultation in certain specified cases; and there is no doubt that the rule so far as it went, applied to the proceedings terminating in the order of dismissal of the plaintiff by the Superintendent of Police, which was ultimately affirmed by the Government, on full consideration of the evidence against the plaintiff. In cases of misconduct of a police officer, arising out of or in connexion with criminal proceedings,, the District Magistrate had to be consulted before any punishment could be inflicted on the police officer with reference to whose conduct enquiry was held. The plaintiff's case was that: 'The proceedings arose out of allegation of bribery in connexion with Akbarpur Dacoity Case.'
5. The charges framed against the plaintiff on 24th July 1924, and his explanation submitted to the Superintendent of Police on 9th October 1924, show the real nature of the case against the plaintiff. In view of the details mentioned therein, it is not possible to hold that the enquiry as to misconduct on the part of the police officer arose out of or in connexion with any criminal proceedings as contemplated by Rule 88(b), Police Regulation, Bengal. The plaintiff, it would appear from the nature of proceedings against him was accused of misconduct as police officer, during the investigation of a dacoity case; the investigation however ended in a final report, and the case was dropped. The expression 'criminal proceedings' has not been defined in any Legislative enactment, and it was used in the rule in question in conjunction with a judicial trial. It appears to be clear that an investigation into a crime which does not go beyond police enquiry, and results in a final report on which no action could be taken under the law, so far as the commission of a crime was concerned, and which did not come before any criminal Court, cannot be held to be a criminal proceeding as contemplated by the rule of procedure to be followed in the matter of infliction of punishment on a police officer, who is departmentally charged with having taken bribes or illegal gratification, in connexion with the investigation of a reported commission of a crime. In our judgment the facts of the case before us, regard being had to the charges framed against the police officer which he had to meet, a consultation with the District Magistrate was not necessary, and was not enjoined by the rules of procedure under which the enquiry was held by the Superintendent of Police.
6. The question of prejudice was raised in the Court below, and it received the consideration of that Court. The position indicated by the learned advocate for the respondent in this appeal was that the question of prejudice did not really arise in the case; the plaintiff was entitled to get damages for wrongful dismissal on his establishing that there was non-compliance with the Rules of procedure in the matter of an enquiry into misconduct on his part. In our opinion, the question of prejudice need not have been gone into in the case before us, regard being had to the position that the plaintiff claimed damages on account of non-compliance with the provisions of law, relating to an enquiry which resulted in his dismissal. No case of prejudice was set out in the plaint and no issue was directed on that question. The Judge in the Court below has held that there was prejudice so far as the plaintiff was concerned, attributable to the irregularities complained of, following upon non-compliance with statutory rules and on the violation of the same; and has given reasons of hypothetical and general nature, which have no real bearing on the facts of the case before us. The reasons are not based on any evidence on the record, and are therefore not acceptable, so far as the decision of the Court below on the question of prejudice on account of non-compliance or violation of statutory rules is concerned.
7. The result of the conclusions we have arrived at, on the question arising for consideration in this appeal, as mentioned above, is that the appeal is allowed, and the decision and decree of the Court below are set aside. The plaintiff's suit is dismissed with costs including the costs in this Court. The hearing-fee in this Court is assessed at three gold mohurs.