1. The petitioner was a constable in the Calcutta Police. Acting on a private complaint received against the petitioner, there were certain enquiries made by the police as a consequence whereof the petitioner was placed under suspension. Thereafter, on May 28, 1962, the petitioner was charged with misconduct as hereinafter stated:
'You are hereby charged with conduct unbecoming of a Police officer and acting dishonestly In that:
1. Being a public servant to wit a constable of Calcutta Police, wrongfully detained one Bhakat Bahadur Rana otherwise known as R.B. Thapa, a durwan of Javeri and Co., Bullion merchants of 180 Mahatma Gandhi Road, Calcutta between 7 a.m. and 7-30 a.m. on Chittaranjan Avenue, Bentinck Street and Lower Chit-pore Road 2-3-62 and wrongfully seizing from his person a gold bar of the size of 1' x 21/2 x 1/2', weight about 234 tolas and approximately valued about Rs. 28,080, property of Javeri and Co. without any authority whatsoever and failing to report the detention or seizure either to your department or to local police for some ulterior motive.
2. Being a public servant to wit a constable of Calcutta Police on 3-3-62 illegally accepted a sum of Rs. 14,500 from one Nath-mal Jalan of 85/1, Monohar Das Street, Calcutta, on behalf of Javeri and Co. of 180, Mahatma Gandhi Road, Calcutta, in a hair cutting saloon at 26, Gopi Rose Lane, Calcutta, in consideration of returning the aforesaid bar of gold wrongfully seized by you and thereby have constituted an act unworthy of and unbecoming of a public servant.
3. Being a public servant to wit a constable of Calcutta Police sometime between 2-3-62 in Calcutta criminally misappropriated 134 tolas of gold valued approximately about Rs. 16,080/- out of the aforesaid bar of the gold wrongfully seized by you from the durwan of Javeri and Co., on 2-3-62, an act most unbecoming of a public servant.'
2. The charge-sheet was signed by the Assistant Commissioner of Police, Detective Department. At the margin of the charge-sheet, a Deputy Commissioner of the Detective Department put his signature in approval of the charges. The petitioner showed cause against the charge. At the departmental enquiry mat followed the petitioner was found guilty of charges Nos. 1 and 3 quoted above but was exonerated of the second charge. The Assistant Commissioner of Police, who Held the enquiry, submitted a report to that effect. Thereafter, respondent No. 3 Deputy Commissioner gave a further personal hearing to the petitioner and agreed with the report of the respondent No. 2 Assistant Commissioner. Thereafter, the respondent No. 3 Deputy Commissioner asked the petitioner to show cause why he should not be dismissed from service on the charges proved against him. The cause shown by the petitioner against the proposed penal order proved unavailing and by an order, dated March 14, 1963, the respondent No. 2 Deputy Commissioner dismissed the petitioner from service with immediate effect. Against the aforesaid order the petitioner preferred an appeal before the respondent No. 1 Commissioner of Police but that appeal was also dismissed.
3. Aggrieved by the order of dismissal the petitioner has moved this Court, under Article 226 of the Constitution, praying for a Writ of Certiorari for the quashing or the order of his dismissal, as affirmed in appeal, and for a Writ of Mandamus restraining the respondents from giving effect thereto and obtained this Rule.
4. Mr. Arun Prakash Chatterjee, learned Advocate for the petitioner, argued four points in support of the Rule. He contended, in the first place, that the petitioner could not be dismissed from service by anybody except the respondent No. 1 Commissioner of Police and the order of dismissal passed by the respondent No. 2 Deputy Commissioner was Dad. This argument is wholly misconceived. Section 9-B (2) of the Calcutta Police Act (introduced by West Bengal Act XV of 1962) reads as follows :
'Subject to the provisions of Sections 10 and 11 the appointing authority or an officer not lower in rank than the appointing authority shall be competent to inflict all punishments on the members of subordinate ranks of the Police force in disciplinary cases.'
Admittedly, the petitioner was appointed in service by the Deputy Commissioner. Headquarters, Calcutta. The order of his dismissal by another Deputy Commissioner was perfectly in order and did not contravene the provisions of Section 9-B (2) quoted above.
5. Mr. Chatterjee contended, in the next place, that the principles of natural justice were violated at the enquiry because the authorities did not produce for examination by the petitioner a taxi driver, who was an important witness. I am unable to uphold this contention as well. Departmental authorities are bound to examine at the enquiry, if such witnesses are under the control of the departmental authorities. The taxi driver, whom the petitioner wanted to examine, was no servant of the Police department. The departmental authorities could not compel his attendance. If the petitioner wanted to examine the taxi driver himself, it is not understandable why he did not bring him before the enquiring officer and examine him. It is not the case of the petitioner that he was in any way prevented from calling the taxi driver himself at the enquiry. I do not find violation of any principle of natural justice in the enquiry, as alleged by the petitioner or at all, and over-rule this contention.
6. Mr. Chatterjee further contended that the petitioner was charged with having had wrongfully seized gold from the person of one Bhakat Bahadur Rana, a durwan of Javeri and Co. But the person who was involved in the incident, if at all, was one R.B. Thapa. The said R.B. Thapa was not produced at the enquiry and the lacuna was sought to be covered up by introducing the story that R.B. Thapa was the alias of Bhakat Bahadur Rana. Both the enquiring officer and the Commissioner of Police considered this objection and came to the conclusion, on evidence, that R.B. Thapa was really an alias of Bhakat Bahadur Rana. I, therefore, find little substance in the third argument of Mr. Chatterjee.
7. It was lastly argued by Mr. Chatterjee that the petitioner was found guilty of the charges mainly on the basis of certain admissions said to have been made by him. Relying on a decision of the Supreme Court in Jagadish Prasad Saxena v. State of Madhya Bharat, AIR 1981 SC 1070, Mr. Chatterjee contended that this should not have been done. The passage from the judgment of the Supreme Court relied upon by Mr. Chatterjee reads as follows :--
'* * * It is true that the appellant specifically admitted during the course of the previous enquiry that illegal liquor bad been delivered to the contractor and that he had given the key of the receiver to Narona. It is on the strength of those admissions that the High Court took the view that the appellant had substantially admitted his guilt and so there was really no need for holding a formal enquiry against him after the charge-sheet was supplied to him. ***
In such a case, even if the appellant had made some statements which amounted to admission, it is open to doubt whether he could be removed from service on the strength of the alleged admission without holding a formal enquiry as required by the rules. But apart from this consideration, if the statements made by the appellant did not amount to a clear or unambiguous admission of his guilt and failure to hold a formal enquiry would certainly constitute a serious infirmity in the order of dismissal passed against him.' Now, in the instant case, there was no omission to hold a formal enquiry. Further apart from the admission, evidence was led to prove the charges against the petitioner. That evidence appealed to the disciplinary authority. Therefore, even though the admission, said to have been made by the petitioner, was treated as supporting the evidence against the petitioner that does not vitiate the proceeding.
8. In the result I hold that there is no substance in this Rule and it must be discharged. I, however, make no order as to costs.