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Sisir Kumar Das Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 3254 of 1952
Judge
Reported inAIR1955Cal183,58CWN952
ActsBengal Police Regulation - Rules 861 and 884; ;Civil Services (Classification, Control and Appeal) Rules - Rule 55; ;Police Act, 1861 - Sections 7 and 35; ;Constitution of India - Article 311 and 320(3); ;Evidence Act, 1872 - Section 1
AppellantSisir Kumar Das
RespondentState of West Bengal and ors.
Appellant AdvocateA.N. Ray and ; Nirmal Chandra Chaudhury, Advs.
Respondent AdvocateJagneswar Majumdar and ;Mihir Kumar Sarkar, Advs.
Cases ReferredJatindra Nath Biswas v. R. Gupta
Excerpt:
- .....any or all the charges were brought home. in other words, nothing was said about punishment.3. the enquiry proceedings were entrusted to mr. gope who had drawn up the charges. on 4-9-1951, the petitioner applied to the superintendent saying that there were enquiries and reports made by c i. d. officers and mr. gope, and these reports should be made available to him. upon this application, mr. gope made the following endorsement (schedule g and h). 'if the reports of these officers are filed in these proceedings in connection with the enquiries, the petitioner is entitled to get copies. as the copies of these reports have not yet been filed he is not entitled to get any copy'. s. d. a. gope. 6-9-51.4. the superintendent of police agreed that this was the correct position. this stand i am.....
Judgment:
ORDER

Sinha, J.

1. The facts of this case are briefly as follows: The petitioner was appointed a Sub-inspector of Police, in the Bengal Police Force in 1944. In September 1947, he was posted as a Sub-Inspector of Police at Shalimar Government Railway Police Station. In December 1948, he became the Officer in charge of that Police Station. This Police Station had a malkhana attached to it for keeping goods taken charge of by the Police. These goods are sold after obtaining orders from the District Magistrate unless the goods are perishable, in which case they are sold and the approval of the Magistrate obtained subsequently. The petitioner remained in Shalimar during 1948-49 and a good part of 1950. At the end of 1950 he was transferred to Bankura. In the beginning of 1951 the authorities received some anonymous communications regarding the sales by the petitioner from the Malkhana at Shalimar during his incumbency there as the Officer-in-charge.

2. It appears that investigations were set on foot by the Criminal Investigation Department and also there was an enquiry by the Deputy Superintendent of Police, Howrah, Mr. Aswini Kumar Gope. It is disputed whether Mr. Gope had made a report at this stage but I shall come back to this aspect of the matter later on. The order sheet shows that Mr. Gope looked into certain records, and then drew up a list of 'possible charges' and then submitted it to the S. R. P. who approved of the same. In May 1951 the petitioner was called upon to submit his explanation regarding these 'possible charges' (Schedule 'A' to the petition). The petitioner submitted his explanations on or about 11-6-1951. On or about 20-8-1951, Mr. Gope drew up certain formal charges, seven in number. These, being .approved by Mr. S. C. De Chaudhury, the Superintendent, Government Railway Police, Howrah, were served upon the petitioner and he was called upon to explain the same (Schedule 'C'). It might be mentioned here that neither in the proposed charges, nor in the formal charges was it mentioned as to what would happen if any or all the charges were brought home. In other words, nothing was said about punishment.

3. The enquiry proceedings were entrusted to Mr. Gope who had drawn up the charges. On 4-9-1951, the petitioner applied to the Superintendent saying that there were enquiries and reports made by C I. D. Officers and Mr. Gope, and these reports should be made available to him. Upon this application, Mr. Gope made the following endorsement (Schedule G and H).

'If the reports of these officers are filed in these proceedings in connection with the enquiries, the petitioner is entitled to get copies. As the copies of these reports have not yet been filed he is not entitled to get any copy'.

S. D. A. Gope. 6-9-51.

4. The Superintendent of Police agreed that this was the correct position. This stand I am told is based on Rule 861 (b) of the Police Regulations (1943) which entitles the alleged offender to a copy of the charge and he is allowed to take copies of all evidence, both oral and documentary, contained in the proceedings. On 27-9-1951, the petitioner wrote to the S. P. as follows:

'With reference to proceedings No. 31/51 drawn up against me, I have the honour most respectfully to submit that Sri A.K. Gope, Dy. S. P., Howrah. G. R. P, held a short inspection ofShalimar G. R. F. 8. on 24-3-51 extending over 13 hrs. about Property Register, etc., and had promised to send comment thereon, 1 further add that Dy. S. P. Howrah, G. R. P. has been working in supervising capacity for more than a year and had made similar checks on many occasions. In the interest of justice and to vindicate my innocence I may have to examine him- . on various aspects as defence witness, if he is not taken as a prosecution witness'.

5. To this, the S. P. appended the following order on 1-10-1951.

'I have no time to enquire into the proceedings.Dy. S. P. will continue to enquire but there is noobjection if the delinquent examines him as hisD. W.'

6. This to my mind is a strange order. If Mr. . Gope was to continue the enquiry upon the charges, it is difficult to appreciate how he could either figure as a prosecution or a defence witness

before himself.

7. On 4-12-1951 the petitioner again made a prayer for taking copies of the reports of the C. I. D. officers and of Mr. Gope. He alleged there that in his own report, Mr. Gope had declared the allegations as unfounded (Schedule 'J'). This was again refused on the ground that the reports not having been filed in the proceedings, the petitioner was not entitled to copies under Rule 861 (b) of the Police Regulations (Schedule K). On .6-12-1951, the petitioner was asked to file a list of witnesses whom he wanted to call. On -8-12-1951', a further charge was added to the seven existing charges. On this date, the petitioner filed his list of witnesses. Although he appended note that he might have to add to the list, he did not mention Mr. Gope as a witness.

On 13-12-1951, the prosecution witnesses finished giving then evidence and the petitioner called-his own evidence which continued upto 8-2-1952 when proceedings closed. The petitioner was then called upon to file his written statement by 15-2-1951. This is under Rule 861 (d). I am told that the practice is in all cases to complete the evidence and then ask the petitioner to file a written statement. This appears to me to be an extraordinary procedure. I find no warrant for this practice and certainly Rule 861 (d) says nothing of the kind. If a written statement has at all to be filed, it must be before the evidence is taken (see also Rule 55 C. S. (C. C. A.) Rules)'. However, the petitioner has not complained on this score and I prefer to say nothing about it any further in this case.

8. The petitioner however did not file a written statement but on 15-2-1952 (the letter is dated 14-2-1952, Schedule N), submitted another list of three witnesses including Mr. Gope. He stated that if the witnesses did not give straight answers, he might have to call-further witnesses. This prayer was rejected. The respondents say that the proceedings were closed on 8-2-1951 and the petitioner could not thereafter, at his pleasure, reopen the proceedings and call further witnesses and prolong the proceedings. I shall deal with this point presently.

9. On 25-2-1952, Mr. Gope recorded his findings. The petitioner was found guilty on most ofthe charges, but some of the charges failed. He recommended that the petitioner's pay be reduced by Rs. 24/- per month for a period of 3 years from the date of the final order by the S. B. P. (Schedule 'S'). The S. R. P. thereupon issued notice upon the petitioner to appear before him for a personal hearing. This was presumably under Rule 861 (e) of the Police Regulations. . The petitioner asked for an opportunity to file a written explanation. This he was allowed to do and he has filed a lengthy explanation, being Schedule 'U' to the petition. Mr. S. C. De Chowdhury, the S. R. p., gave his finding on 8-4-1952 and reduced the punishment. He ordered that the pay of the petitioner be reduced by Rs. 24/- per month for a period of 18 months commencing from 1-4-1952. On 30-4-1952, Mr. S.M. Ghosh, the Deputy Inspector General of Police, Western Range, passed the following order: 'Perused the proceedings. The punishment awarded in this case is not adequate. In exercise of the power vested in me under R. 884 of P. R. B. Volume 1, I propose to enhance the punishment to that of dismissal. He should show cause within 14 days from the date of this order of the proposed punishment and should state in writing whether he wants a personal hearing.'

10. The petitioner thereupon, showed cause and obtained a personal hearing. Mr. Ghosh passed his final order on 21-8-1952. The order contains the following paragraph:

'The delinquent appeared before me for a personal hearing on 9-6-1952, and it is therefore liecessary for me to explain why I took such a long time to pass the orders. In this case, an in some other proceedings drawn up against officers over the affairs of the Shalimar G. R. P. S., the evidence is more or less presumptive. The properties involved were disposed of long ago and these were not available as exhibits. The finding therefore had to be based on record evidence. I was therefore a bit hesitant if I should accept such presumptive evidence in ordering the dismissal of the delinquent, although I was morally convinced about the dishonest conduct of the delinquent. As two similar proceedings were pending for orders before a higher authority, viz., the Inspector General of Police, I naturally wanted to see the judgment of the higher authority. This has since been received.

I find that in the proceedings against A. S. I: Shyama Pada Bose, it has been held that dishonesty cannot always be proved by positive evidence but presumption has to be drawn from the prevailing circumstances and acts -done by officers, and A. S. I. Shyama Pada Bose has been dismissed. In the same way as rulings from the High Court' guide the decisions of the subordinate courts I feel that in departmental proceedings too the ruling given by superior authority should be a guidance to subordinate authorities, I have no hesitation in-passing the order now.'

This rule was issued on 22-12-1952 calling upon the respondents to show cause why a writ in the nature of mandamus should not issue directing them to forbear from giving effect to the order dated 30-3-1952 or 21-8-1952, and/or why a writ inthe nature of certiorari should not issue, quashing the same, or why such further, order or orders should not be made as to the Court seems fit and proper,

11. Mr. Roy, appearing on behalf of the petitioner, has taken the following points;

(1) That Mr. Gope had no authority to investigate the charges inasmuch as under Section 35, Police Act (5 of 1861), a charge against a police officer above the rank of a constable, shall be enquired into and determined only by an officer exercising the powers of a Magistrate. It is admitted that Mr. Gope did not exercise any such' powers.

(2) That there has been an infringement of Article 320(3)(c) of the Constitution, inasmuch as the Public Service Commission has not been consulted.

(3) That the provisions of Article 311 of the Constitution were attracted when Mr. Ghosh proposed to dismiss the petitioner. The petitioner was not granted a reasonable opportunity of showing cause against the action proposed to be taken in regard to him, because:

(a) There should have been a fresh enquiry before Mr. Ghosh.

(b) Mr. Gope (and two other persons) should have been allowed to be called as a witness.

(c) The petitioner ought to have been given copies of the reports made by Mr. Gope and the C. I. D. Officers prior to the framing of the charges.

(4) That Mr. Ghosh had no jurisdiction under R. 884 of the Police Regulations to pass an order of dismissal.

(5) That in any event, the order made by Mr. Ghosh on 21-8-1952 is a speaking order and shows error on the face of it. A writ in the nature of certiorari should be issued quashing the same.

12. The first two points are covered by a Bench' decision of this Court, -- 'Shiva Nandan Sinha v. State of West Bengal', : AIR1954Cal60 . In that case, Das J. held that the Police Act contemplates two kinds of proceedings, viz., depart-, mental proceedings under Section 7 of the Act and! judicial proceedings under Section 35 of the Act. The; present proceedings are under Section 7 of the Act read with R. 861 of the Police Regulations. Thus Section 35 is not attracted. Regarding Article 320(3)(c), the learned Judge held that though the sub-article is widely worded, the sub-article was intended' to. apply only to the civil servants referred to in Sub-article (1) of Article 320, viz., those civil servants for whose appointment an examination has to be held by the Public Service Commission. 'I cannot persuade myself, to hold', said the learned Judge 'that a menial servant of the humblest category can claim the privileges conferred by Article 320(3)'. With great respect, I would differ on this point. The entire background of the Constitution is to confer equality of status on all citizens and to evolve a classless society. In this background, I do not see why the words 'a person serving under the Government of India or the Government of a State in a civil capacity' should exclude a person serving in a civilian post however humble. After all, the proviso gives an opportunity to frame regulations by which a particular class of cases or a particular circumstances can beexcluded from ,the task of consultation with the Public Services Commission. However, the Bench decision is binding upon me and I must follow it. The first two points accordingly fail.

13. I now proceed to consider the third point. In this respect, this case offers a- noval aspect, not found in the reported cases upon this point. Usually, the charge sheet served upon an employee, sets out the acts of delinquency and the proposed punishment. The leading case upon this point is -- 'High Commr of India and Pakistan v. I. M. Lall . In that case there were a number of charges and a number of punishments were proposed. Finally the punishment meted out was one of dismissal. The Judicial Committee quoted with approval the following passage from the majority judgment of the Federal Court, with which they agreed: 'It does however seem to us that the subsection requires that as and when an authority is definitely proposing to dismiss or reduce in rank a member of the civil service he shall be so told and he shall be given an opportunity of putting his case against the proposed action and as that opportunity has to be a reasonable opportunity, it seems to us that the section requires not only notification of the action proposed but of the grounds on which the authority is proposing that the action should be taken and that the person concerned must then be given a reasonable time to make' his representations against the proposed action and the grounds on which it is proposed to be taken.' Both Mr. Roy and Mr. Mazumdar agree that before the stage when Mr. Ghosh proposed to dismiss the petitioner, the provisions of Article 311 '(or Rule 53 of the C. S. (C.C.A.) Rules) were not attracted.

14. The charge-sheet did not suggest any punishment and the penalty of reduction in pay did not attract Article 311. It was only when the authority made up its mind to take the action of dismissal that Article 311 came into operation. Does it then follow that the whole enquiry should have been repeated and evidence taken de novo?

15. It will be observed that Article 311 does not speak of any charge-sheet being drawn up. This procedure of drawing up of a charge-sheet and calling upon the alleged delinquent to answer the same, arises in two ways. Firstly, it becomes necessary by reason of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules-which applies to all civil servants. Under this rule;- the grounds upon which it is proposed to take action are to be reduced into the form of a definite charge or charges, which are to be communicated to the person charged, together with a statement of the allegations on which each charge is based, and of any other circumstances which it is proposed to take into consideration in passing orders on the case. Secondly the procedure is inherent in Article 311 itself. If a person is not apprised of the charges upon which it is proposed to take action he is not put in a position to defend himself and show cause against the proposed action.

Ordinarily a charge-sheet would also indicate the proposed punishment. But I do not see why it is mandatory to do so. If a charge-sheet has been drawn up and an enquiry held in which the alleged delinquent has been given every opportunity to defend himself, the subsequent proposal to punish him in any of the ways which would attract the provision of Article 311, may be proceeded with, upon the findings of that enquiry. The delinquent must know what he is. charged with and must have the amplest opportunity to meet that charge. In such a case, Article 311 would only require that he should be given a reasonable opportunity to show; cause why a certain action should not be taken upon, such of the charges as have been already brought home. A second enquiry into the charges would in such a case be not necessary.

Reference has been made to my decision, --'Jatindra Nath Biswas v. R. Gupta', : AIR1954Cal383 . That was again a case in which a charge-sheet was submitted including several charges and the delinquent was asked at the same time to show cause why he should not be dismissed, discharged or degraded or otherwise dealt with. Ultimately he was sought to be dismissed. In such a case, I pointed out that the enquiry should be in two stages, namely, first an enquiry as to the charge and secondly as to the punishment upon a proved charge. The present case is somewhat different. At first there was a charge-sheet but no proposed punishment. When the charges were adequately investigated, it was proposed to inflict the punishment of dismissal. At that stage, the petitioner was given a second opportunity to, show cause why upon the proved charges he should not be dismissed, and he fully availed himself of it. The provisions of Article 311 and Rule 55 of the C. S. (C. C. A.) Rules have therefore been amply satisfied.

I now come to the question as to whether Mr. Gope and the two other persons mentioned in Schedule N to the petition should have been allowed to be called as a witness. Ordinarily, a delinquent who is being tried upon a charge should have every opportunity of calling evidence, both oral and documentary, which he requires to prove his innocence. In this case he took the objection at an early stage that Mr. Gope should not act as the enquiring authority because it might be necessary to call him as a defence witness. The authorities gave permission to the petitioner to call him. What would have happened if Mr. Gope figured both as the judge and a witness I need not consider, because no attempt was made to call him until long after the case was closed. The petitioner filed his list of witnesses on 8-12-1951' but did not mention Mr. Gope as a witness.

A trial, whether it be judicial, quasi Judicial or, merely administrative, must be conducted on certain well known principles. The parties are to be given every opportunity of proving their case but the proceeding must end some time and once! it has ended, the Judge (or the person conducting the enquiry) is not bound to re-open the whole thing unless he is satisfied that it is absolutely necessary in the interest of a fair trial to do so, For example, if the circumstances are such that the delinquent could not in spite of every effort have adduced a piece of evidence earlier, that may be a reason for allowing him to re-open the trial. In this particular case, the enquiring officer came to the conclusion that it was merely an attempt to- prolong the hearing and not a bona fide request. In this, I am in complete agreement.

In Schedule 'N' the petitioner states that upon perusing the evidence, he found it necessary to call Mr. Gope. I find nothing in the evidence which made it necessary to do so; and which necessity if it exists at all, was not already there. No such evidence was brought to my attention. It is also significant that the letter was received on the very date when the petitioner was called upon to file a written statement and contains a threat that if the proposed witnesses did not give straight answers, further witnesses will be called. This I think is an intolerable state of things, Even if it had been a judicial trial, the Judge would be justified in rejecting such a belated attempt to prolong proceedings. It is more than amply justified in a departmental enquiry.

I now come to the question as to whether the petitioner should have been given copies of the report of the C, I. D. officers and the report of Mr. Gope. So far as Mr. Gope is concerned, I have great doubts whether any such report exists. The order-sheet merely shows that he looked into the records and framed certain 'possible charges'. The difficulty has been occasioned by the endorsement in Schedule 'G', the contents of Schedule 'K' and the rather evasive denial, contained in paragraphs 10 and 12 of the counter affidavit. Be that as it may, I do not think that it is against any law or rules to have a confidential enquiry prior to the framing of a charge. In I. M. Lall's case (B) (Supra), It was held that the reports of Mr. Anderson and Brayne should have been disclosed to Mr. Lall. Lord Thankerton says (quoting the Chief Justice of the Federal Court):

'Whatever representations were made, it is clear that at no time before his removal from the service was Mr. Lall allowed to see the reports of either Mr. Anderson or Mr. Brayne, nor was he informed that either the Punjab Government the Federal Public Service Commission or the government of India or the Secretary of State were definitely proposing on basis of these reports to remove him from service.......... At no time was he given an opportunity, before dismissal, of making representations against the accuracy of facts found by Mr. Anderson or Mr. Brayne in their reports or against, the adverse deductions drawn against him, particularly by Mr. Brayne'..

16. Thus, where the proposed action is based upon a report or the findings therein, or if such a report has been considered or relied on at any stage of the enquiry, then the delinquent must have an opportunity of looking into it and of meeting its contents. In this case none of the alleged reports of which disclosure was sought, was ever used for the purpopses of the enquiry, nor was the proposed action based on any finding in any such report. No such report is referred to at any stage of the trial by the prosecution (if it can be called so) or Mr. Gope, and he has not relied for Bis findings on any such report.

17. In my opinion, therefore, it was not necessary to disclose any such reports even if they I existed.

18. I now come to point No. 4. Mr. Roy argues that the punishment. which was recommended by Mr. Gope and ordered by Mr. Dey Choudhury was. not dismissal, but reduction of pay. la such a case he argues that there was no power of revision in the Deputy Inspector General and no power to alter the punishment to one of dismissal. I am unable to accept this argument. The provisions! of Rule 884 (of the Bengal Police Regulations) plainly confer, power upon the Deputy Inspector General to call for the proceedings of any case and pass such order 'as he may think fit.' I do not see therefore why he has not the power of altering the punishment to one of dismissal.

19. Lastly I come to the point as to whether a certiorari will lie to quash the order of Mr. Ghosh, because he acted as a quasi judicial tribunal' and his order shows an error on the face of it. An administrative body can certainly act as a quasi judicial tribunal in certain cases. It is however a very vexed question as to whether a departmental enquiry of the kind that we have in this case, can be considered as a quasi Judicial tribunal or not, and particularly whether there exists a 'lis' or dispute between the parties, the decision upon which calls for a judicial approach. I do not think I am called upon to decide this point, because even if the Deputy Inspector General acted as a quasi judicial tribunal, I find no error on the face of the proceedings. The disputed passage in his finding has been quoted above. Mr. Roy interprets it as meaning that the officer thought that there was no evidence against the petitioner, and yet he finds him guilty because in a similar case, Shyama Pada Bose had been found guilty by the Inspector General.

This however is not how I read the passage. What Mr. Ghosh says is that there was no direct or conclusive evidence but the evidence was 'presumptive' or 'circumstantial' and he had at first hesitated to act upon such evidence, until he got a precedent for doing so. In departmental proceedings, the strict laws of evidence according to the Evidence Act are not applicable. Police Officers holding departmental enquiries are not expected to act like trained lawyers who can either decide whether the evidence adduced is in strict conformity with the rules laid down by the Evidence Act, or to sift the evidence in a strictly legal manner as could be done by a Judge trained in law.

If the officer has come to a finding on circumstantial evidence, that Is unexceptionable. All that has to be seen is as to whether he had honestly and impartially come to a conclusion which a reasonable man could arrive at. Judged by this test I find no error on the face of his findings. Before I conclude, I must mention a point which was indicated at the opening of the case but about which nothing was heard in argument. It relates to Section 42, Police Act. It was argued that actions or prosecutions against Police Officers must be taken within 3 months from when the act complained of was committed. This section clearly refers to judicial proceedings and has no reference to a departmental enquiry.

20. For the reasons stated above, the application fails and must be dismissed. The Rule isaccordingly discharged and all interim orders vacated.

21. I make no order as to costs.


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