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In Re: the Matter of Purna Chunder Pal Mukhtar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1900)ILR27Cal1023
AppellantIn Re: the Matter of Purna Chunder Pal Mukhtar
Excerpt:
legal practitioners' act (xviii of 1879 as amended by act xi of 1896), sections 13, clause (f), 14 - professional misconduct--misconduct prior to enrollment as legal practitioner--'any other reasonable cause'--ejusdem generis--permanent defect of character--'taking instructions' and 'misconduct'--authority of subordinate courts to proceed under section 14 of the legal practitioners' act--departmental enquiry--legal proof. - ghose, j.1. this is a reference by the sessions judge of bhagalpore under section 14 of the legal practitioners' act (xviii of 1879 as amended by act xi of 1896), recommending that a certain mukhtar, purna chunder pal, who had been practising as a mukhtar in the criminal courts, should be dismissed. the grounds for this recommendation are that the mukhtar was dismissed in 1891 from the office of sub-inspector of police, which he then held, for gross misconduct; and that in 1893, he procured a certificate of good moral character from a pleader, babu mon mohun ghose, by concealing his previous history, and by means of that certificate, thus improperly obtained, he gained admission to the examination for mukhtars. the sessions judge considers that this is 'any other reasonable cause' within.....
Judgment:

Ghose, J.

1. This is a reference by the Sessions Judge of Bhagalpore under Section 14 of the Legal Practitioners' Act (XVIII of 1879 as amended by Act XI of 1896), recommending that a certain mukhtar, Purna Chunder Pal, who had been practising as a mukhtar in the Criminal Courts, should be dismissed. The grounds for this recommendation are that the mukhtar was dismissed in 1891 from the office of Sub-Inspector of Police, which he then held, for gross misconduct; and that in 1893, he procured a certificate of good moral character from a pleader, Babu Mon Mohun Ghose, by concealing his previous history, and by means of that certificate, thus improperly obtained, he gained admission to the examination for mukhtars. The Sessions Judge Considers that this is 'any other reasonable cause' within the meaning of Section 13 Clause (f) of the Legal Practitioners' Act, for which the mukhtar is liable to be dismissed.

2. The questions which arise upon this reference are: (1) whether the reason assigned is 'any other reasonable cause' within the meaning of Section 13(2) whether in the circumstances of the case, Purna Chunder Pal should either he dismissed or suspended.

3. Section 13 of the Legal Practitioners' Act, as it originally stood before certain amendments were made in 1896 which I shall presently notice was as follows (omitting the last portion which is not material in the present case): 'The High Court may also, after such inquiry as it thinks fit, suspend or dismiss any pleader holding a certificate as aforesaid who takes instructions in any case except from the party on whose behalf he is retained, or a private servant of such party, or some person who is the recognized agent of such party within the meaning of the Code of Civil Procedure, or any pleader or mukhtar holding a certificate as aforesaid who is guilty of fraudulent or grossly improper conduct in the discharge of his professional duty, or for any other reasonable cause.'

4. It will be observed that the words 'or for any other reasonable cause' immediately followed the expression 'grossly improper conduct in the discharge of his professional duty.'

5. Section 36 of the Act laid down touting for legal business and payment of any gratification for procuring such business, to be offences, for which the offender was liable to imprisonment or fine. It ran as follows: Whoever commits any of the following offences: (a) Solicits or receives from any legal practitioner any gratification in consideration of procuring or having procured his employment in any legal business; (b) retains any gratification out of remuneration paid or delivered or agreed to be paid or delivered to any legal practitioner for such employment; (c) being a legal practitioner, tenders, gives or consents to the retention of any gratification for procuring or having procured the employment in any legal business of himself or any other legal practitioner, shall be punished with simple imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees or with both.'

6. In 1896, the Legislature thought it proper to amend the Act. By Act XI of that year, they, among some other matters, rescinded Section 36 and incorporated in Section 13 the several cases of misconduct in a pleader or mukhtar, as falling within that section. Section 13 now runs as follows: 'The High Court may also after such inquiry as it thinks fit, suspend or dismiss any pleader or mukhtar holding a certificate as aforesaid (a) who takes instructions in any case except from the party on whose behalf he is retained, or some person who is the recognized agent of such party within the meaning of the Code of Civil Procedure, of some servant, relative or friend authorized by the party to give such instruction, or (b) who is guilty of fraudulent or grossly improper conduct in the discharge of his professional duty, or (c) who tenders, gives or consents to the retention, out of any fee paid or payable to him for his services of any gratification for procuring or having procured the employment in any legal' business of himself or any other pleader or mukhtar, or (d) who, directly, or indirectly, procures or attempts to procure the employment of himself as such pleader or mukhtar through or by the intervention of, any person to whom any remuneration for obtaining such employment had been given by him, or agreed or promised to be so given, or (e) who accepts any employment in any legal 'business through a person who has been proclaimed as a tout under Section 36, or (f) for any other reasonable cause.' The Legislature evidently considered that touting for any legal business or the payment of any gratification for such business on the part of a pleader or mukhtar, ought not to be regarded as an offence; and that it should be regarded as professional misconduct or unprofessional conduct.

7. It will be observed that while amending the Act of 1879 the Legislature, did not think it necessary to amend Section 14, which lays down the procedure to be followed in case of misconduct in a practitioner in a Subordinate Court; and the words in the first paragraph of that section are 'or with any such misconduct as aforesaid'--referring to the misconduct as laid down in Section 13.

8. The question here arises whether, when the Legislature in Section 13, after enumerating several particular cases of professional misconduct or unprofessional conduct, use the words 'or for any other reasonable cause,' they use them as meaning something ejusdem generis with the cases of professional misconduct or unprofessional conduct, as specifically enumerated therein--or is it intended to apply to any improper act, be it either professional or other wise, and occurring before or after the enrollment of a person as a pleader or mukhtar.

9. In construing the words of a statute, the rule that is ordinarily followed? is that when general words follow particular words of the same nature, they are presumed to be restricted to the same genus as those words, unless it can be seen from an inspection of the scope of the legislation that the general, words were meant in a wider sense (see Maxwell on the Interpretation of Statutes, pp. 469, 475).

10. The misconduct on the part of Purna Chunder Pal was antecedent to his passing the mukhtarship examination and enrollment as a mukhtar, and consequently had no relation to his business as a mukhtar. And it seems to me that, if the said rule of construction be followed, it is extremely doubtful whether such misconduct is 'any other reasonable cause' within the meaning of Section 13. I doubt whether the Legislature ever intended to provide for a case like this. The man, according to the rules framed by the High Court, appeared at the examination, passed the examination, and was duly enrolled. The fact of his having procured a certificate of good moral character by concealing his previous history, and thereby having obtained admission to the examination may be a ground for cancelling his examination, and the certificate granted to him, and thereby disqualifying him from practising as a mukhtar (see Section 10); but I doubt whether he could be for this reason dismissed or suspended under Section 13. of the Act.

11. As bearing upon this question, I desire to refer to Section 12 of the Act, which lays down that a pleader or mukhtar 'holding a certificate issued under Section 7 may be suspended or dismissed, if he is convicted of any criminal offence implying a defect of character which unfits him to be a pleader or mukhtar as the case may be.' This could only refer to a conviction subsequent to his enrollment as a pleader or mukhtar.

12. I observe that the marginal note to Section 13 of the Act, as published in the Official Gazette, is 'suspension and dismissal of pleaders and mukhtars guilty of unprofessional conduct;' and to Section 14, it is 'procedure when charge, of unprofessional conduct is brought in subordinate Court or Revenue Office.' It is however doubtful whether in construing the meaning of the sections, we could refer to such marginal notes. And I therefore base my judgment upon the words of the sections themselves.

13. Passing then to the question whether Purna Chunder Pal obtained a certificate of good moral character from the pleader, Babu Mon Mohun Ghose, by concealment of the fact of his having been dismissed for misconduct, 1 observe that there is a conflict between the statement of the mukhtar, and that of the pleader. Purna Chunder was dismissed in 1891, and the certificate was obtained in 1893. The mukhtar says in his verified petition that the fact of his dismissal was known at the time to the pleader, while the pleader denies such knowledge. If the pleader knew Purna Chunder so well in 1893 as to be able to certify that he was a person of good moral character, it may well be presumed that he was aware of his having been in Government service, and dismissed from that service. I am not, however, prepared to say that the pleader has spoken an untruth; but the question is whether it is so certain that what the mukhtar says is absolutely untrue. I should say that, to my mind, it is not so certain. In the next place, I doubt whether, when he applied to the pleader for a certificate, Purna Chunder Pal was bound to relate to him the past history of his life. If the certificate of the pleader be accepted, he knew him well (for he was able to certify that Purna Chunder bore a good moral character)--and, in this circumstance, a relation to him of Purna Chunder's past history was unnecessary. For these reasons, I am unable to hold that Purna Chunder obtained the certificate in question by concealing the fact of his dismissal for misconduct.

14. I now turn to the circumstances under which Purna Chunder was dismissed. Referring to the proceeding of the District Magistrate of Bhagalpore, dated the 12th August 1891, it appears that Purna Chunder held the office of Sub-Inspector of Police, and was committed to the Sessions for trial on several counts, viz., 'taking illegal gratification in respect of an official act, abetment of forgery, abetment of fabrication of false evidence and forgery'--offences which it was stated he had committed in connection with his office as Sub-Inspector. He was tried and acquitted, because the Sessions Judge found that the evidence for the prosecution was 'altogether tainted and unreliable.' The District Magistrate, however, held a departmental inquiry and 'going back to the initial stage of the proceedings,' and proceeding upon certain facts which he thought 'were accepted as proved by the Judge,' he was of opinion that the whole of the facts point so conclusively to connivances at systematic fraud in manipulating the documents designed to procure the release of bad characters on the part of Purna Chunder Pal,' and that therefore he was unfit to be retained in Government service. Unfortunately we have not before us the judgment of the Sessions Judge, the whole of the record having been destroyed. We are not therefore in a position to say whether the District Magistrate took a correct view of the facts as were to be gathered from the judgment of the Sessions Judge. So far, however, as the proceeding of the Magistrate itself is concerned, it strikes me that he found Purna Chunder Pal guilty of very nearly (though not perhaps precisely) the same offences for which he was tried and acquitted by the Sessions Judge.

15. The fact, however, remains that the man was departmentally found guilty of misconduct and dismissed, and he is not now in a position to contradict the facts upon which the order of the Magistrate was based.

16. We have, on the other hand, the fact that since his passing the mukhtar-ship examination, Purna Chunder Pal has been practising for about six years as a mukhtar, apparently without any fault; and the learned Vakil who appeared before us, read to us certificates granted to him by certain officers before whom he has practised. And it seems to me that it would be rather hard to dismiss him altogether. I should think that, if his misconduct antecedent to his passing the mukhtarship examination comes within the scope of Section 13 of the Legal Practitioners' Act, suspension from practice for a year would perhaps meet the requirements of the case.

17. There being however a difference of opinion between my learned colleague (Rampini, J.) and myself in this reference, the matter will have to be referred to a third Judge. Let the case be placed before the Chief Justice for orders.

Rampini, J.

18. This is a reference by the District Judge of Bhagalpore under the Legal Practitioners' Act. He recommends that a mukhtar, named Purna Chunder Pal, be dismissed on the following grounds: (1) that in 1891 he was dismissed from the Police for misconduct and gazetted out of the service; (2) that in 1893, when he desired to appear at the mukhtarship examination, he suppressed the fact of his having been dismissed from the Police and so induced a pleader of Alipore, Babu Mon Mohun Ghose, to give him a certificate of good moral character which the pleader would not have done if he had known that Purna Chunder Pal had been dismissed from the Police, and without which certificate Purna Chunder Pal could not have appeared at the examination.

19. About the facts of the case, there can be no doubt. Purna Chunder Pal was formerly Court Sub-Inspector at Durbbanga. He was tried by the Sessions Judge for taking bribes, and for forgery and abetment of the fabrication of false evidence, but was acquitted. A departmental inquiry was then held into his conduct in respect of other matters, and he was dismissed for systematic fraud in manipulating documents calculated to procure the release of bad characters on improper security. His dismissal was notified in the Police Gazette. In 1893 he went to Babu Mon Mohun Ghose and induced him to give him a certificate of good character. Babu Mon Mohun Ghose distinctly says, Purna Chunder Pal never told him anything of his past history, that he was not aware of it and would never have given him the certificate, if he had known of it.

20. I therefore consider that Purna Chunder Pal should be dismissed as a mukhtar under Section 13, Act XVIII of 1879. Under Clause (f) of that section we have power to dismiss a mukhtar 'for any other reasonable cause.' The misconduct of the mukhtar in the above two particulars in my opinion constitutes a reasonable cause for his dismissal.

21. The pleader who appears for Purna Chunder Pal argues that the words 'any other reasonable cause' in Section 13, Clause (f) mean any other misconduct of the nature referred to in the section, that is, misconduct as a mukhtar. But I see no reason to think that the words are limited in this manner. On the contrary, in my opinion they are intended to give this Court the widest discretion in the matter. The pleader for the appellant further urges that Purna Chunder Pal has not misconducted himself since he passed as a mukhtar in 1893. That may be so, but I consider that his past history shows him to be unfit to be a mukhtar. I would, therefore, dismiss him under Section 13 as recommended by the Judge.

22. [The Judges (Ghose and Rampini, JJ.) having differed in opinion the case was refered to Hill, J., under Section 575 of the Code of Civil Procedure], 1899, June 80. Mr. Pugh, Babu Digamber Chatterjee and Babu Khettra Mohun Sen, for Purna Chunder Pal, at the re-hearing of the case.

Our adv. vult.

Hill, J.

23. This case has been referred to me for my opinion by order of the Chief Justice under Section 575 read with Section 647 of the Code of Civil Procedure, the learned Judges composing the Bench which dealt with it having differed in opinion.

24. The case arises out of proceedings taken against a mukhtar, named Purna Chunder Pal, under Section 14 of the Legal Practitioners' Act, 1879, as amended by Act XI of 1896, and the learned Judges have differed, not only as to the applicability of the Act under the circumstances of the case, but also as to the punishment which, if it be taken that the Act is applicable, ought to be inflicted upon the mukhtar, Mr. Justice Rampini being of opinion that the Act applies and that the proper punishment is dismissal, while Mr. Justice Ghose considers that the Act is not applicable, and that, even if it were applicable (as. I have his authority for saying), the case is not one which should be visited with any punishment.

25. It appears from such materials as are to be found in the records of the case that Purna Chunder Pal was at one time a member of the Bengal Police, and that from the year 1883 to 1891, he filled the office of Court Sub-Inspector. In the latter year, suspicion fell upon him of complicity in certain frauds, in connection with bad livelihood cases, and, after an inquiry by the Magistrate of the District, he was suspended on the 18th May 1891 and committed for trial to the Court of Sessions. The records of this trial have been destroyed, but the nature of the charges preferred against him, as well as the result of the trial, may be gathered from a proceeding held departmentally on the 12th August 1891 by the Magistrate of the district. From this it would appear that the charges embraced the taking of an illegal gratification in respect of an official act, abetment of forgery, and abetment of the fabrication of false evidence and forgery. It also appears that Purna Chunder Pal was acquitted on all these charges, the Sessions Judge considering 'the evidence of the approver and the witnesses brought forward by him altogether tainted and unreliable,' These are the words of the District Magistrate and, as he had at the time the judgment of the Sessions Judge before him, they no doubt accurately represent the view of the evidence taken by the latter. The acquittal of Purna Chunder Pal took place on the 23rd June 1891 and, in the following August, the Magistrate of the District, as his departmental superior, took up the question whether he should be reinstated in office or dismissed, there being in his opinion no middle course, and that was the occasion of the proceeding referred to above. So far as appears, no notice was given to Purna Chunder Pal of this proceeding, nor does it appear that he was called upon for any explanation or was heard in his own defence by the Magistrate during the course of the proceeding, and the materials upon which the Magistrate formed his opinion, so far as can be gathered from his order, were the judgment of the Sessions Judge and 'the facts which the inquiry disclosed,' by which I understand the inquiry held by the Magistrate prior to the committal of Purna Chunder Pal to the Court, of Sessions for trial. With these materials before him, the Magistrate came to the conclusion that Purna Chunder Pal had been guilty of conduct which rendered him unfit to be retained in the service of Government, and he accordingly dismissed him from the Police. The order of dismissal is dated the 12th August 1891.

26. It hardly seems necessary to examine in much detail the grounds of the Magistrate's order. He believed, however, that Purna Chunder Pal had been mixed up with a systematic practice of obtaining the release of persons ordered to find security on bogus security or by false personation. This conclusion was founded on the following considerations, putting them generally. One Khuda Bux who had signed certain petitions in connection with the cases in question as the identifier of the petitioners had stated that he had so signed by the direction of Purna Chunder Pal and at his lodging. That a pleader of the Munsif's Court who admitted having written the petitions was a relative of Purna Chunder Pal and lived at his lodging at the time when the petitions were written. That this pleader had sprung into a regular practice in bad livelihood cases, a circumstance only to be rationally accounted for by the fact that he was a relation of the Court Sub-Inspector, and lastly, that this same pleader had twice 'telegraphed to the Sub-Inspector to return,' though at what particular time does not appear.

27. It may be here remarked that Khuda Bux was the 'approver' whom the Sessions Judge had declined to believe on the trial of Purna Chunder Pal and with reference to whom the Magistrate in the introductory part of the order now under consideration observes: 'There is no doubt that Khuda Bux, who had an idea that his own safety depended on the conviction of the accused (Purna Chunder Pal), did tutor witnesses and introduce a quantity of matters as to the evidence for the prosecution which was clearly false.'

28. Then the Magistrate goes on to comment on the ease of one Maharaj Singh, who had been committed to the Court of Sessions but not yet tried. What the precise charge was in Maharaj Singh's case is not stated, but it appears that he had signed a petition in a security case signing his own name and the name of one Bechu Kaout, but the latter without authority. Maharaj Singh is said first to have confessed, then to have withdrawn his confession; and lastly, 'after Khuda Bux had given his evidence,' to have stated (under what circumstances however does not appear) that he had paid some money to the Court Sub-Inspector for procuring the release of bad characters, describing in detail how the sum was made up and stating further that 'all the transactions took place at the Court Sub-Inspector's lodging.' Then, the Magistrate remarks that, whatever credence may be given to the statements of Maharaj Singh, there could be no doubt that the Court Sub-Inspector had a lively dread of what he might say if driven into a corner, because, when a warrant was issued and Maharaj Singh was arrested and committed to jail, the Court Sub-Inspector interested himself to get him released on bail to the extent of paying Rs. 40 to a mukhtar to stand security. Lastly, the Magistrate refers to certain petitions relating to the release of bad characters and the reinstatement of chowkidars written by the Munsif's Court pleader already mentioned and witnessed by one Gopal Panda, a peon attached to the Court Sub-Inspector's office and who lived with the Court Sub-Inspector in his private lodging. Whether there is anything incriminating about these petitions is, however, not stated.

29. In one of the concluding paragraphs of the order, the Magistrate goes onto express his sense of how unfortunate it was that all these facts had not been so placed before the Court of Session as to secure the conviction of Purna Chunder Pal, but he observer seemingly in extenuation,--' A Criminal Court cannot perhaps permit itself to act upon what we call moral conviction.'

30. In 1893, Purna Chunder Pal having obtained a certificate of good character from a pleader named Mon Mohun Ghose presented himself for the mukhtarship examination which he passed, and he was duly admitted to practise as a mukhtar. He was afterwards enrolled in the District of Bhagalpore and practised in the Court of the Sub-Divisional Magistrate of Madhipura, From the time of his admission down to the present he has apparently conducted 'himself with professional propriety and holds certificates of a satisfactory kind from Magistrates in whose Courts he has practised.

31. The present proceedings were initiated by the District Magistrate of Bhagalpore on the 23rd July 1898. It appears that he was then informed by the District Superintendent of Police of the antecedents of Purna Chunder Pal, and he thereupon charged him with misconduct under Section 13 of the Legal Practitioners' Act, and directed the Sub-Divisional Magistrate of Madhipura to try him. The charges preferred by the District Magistrate were twofold, namely, (1) that Purna Chunder Pal had committed misconduct by withholding from the District Judge (whose duty* it is to satisfy himself of the sufficiency of the certificates of character presented by mukhtarship candidates) the fact of his having been dismissed from the Police, and (2) that he had, in fact, been dismissed from the Police, which latter fact the District Magistrate regarded as reasonable cause under Section 13, Clause (f) of the Legal Practitioners' Act, for his dismissal as a mukhtar. The District Magistrate, in forwarding the case to the Sub-Divisional Magistrate, directed him to 'restrict the inquiry carefully to the matter of the charge.'

32. As the result of the inquiry which followed, the Sub-Divisional Magistrate found that Purna Chunder Pal had withheld the fact of his dismissal from the Police both from Babu Mon Mohun Ghose, who had certified to his character, and from the District Judge and, further, that he had, in point of fact, been dismissed from the Police, and he recommended his dismissal.

33. The case was then referred through the usual channels to this Court with the result which has been already mentioned.

34. The first question which presents itself is, as it is formulated in the opinion of Mr. Justice Ghose, whether the words of Section 13, Clause (f) of the Legal Practitioners' Act are used as meaning something ejusdem generis with the ease of professional misconduct or unprofessional conduct as specifically enumerated in the section, or are they intended to apply to any improper act, be it either professional or otherwise, and occurring before or after the enrollment of a person... as a pleader or mukhtar? In the opinion of Mr. Justice Ghose, the more limited interpretation is the correct one, the improper act must be one of professional misconduct, and the application of the section must, therefore, be confined to misconduct occurring after admission as a pleader or mukhtar has taken place. Mr. Justice Rampini is of the contrary opinion. With every deference I venture to think that Mr. Justice Ghose has perhaps pressed the ejusdem generis doctrine somewhat too far. Bach of the clauses of Section 13 which precedes Clause (f) seems to me to be generically distinct from the rest, and to be exhaustive of its own genus, and, where this is so, I think the principle of ejusdem generis can hardly apply. In my judgment Clause (/) was intended to cover misconduct other than professional misconduct and to embrace all causes other than those previously enumerated in the section which might reasonably be regarded as disqualifying a person for retaining the office of pleader or mukhtar, and, in this view, I am, I think, supported by the case of In the matter of Gholab Khan (1871) 7 B.L.R., 179 a case decided under the corresponding provisions of the 'Pleaders, Mukhtars and Revenue Agents Act, 1865' (Act XX of 1865).

35. With respect to the further question whether Clause (f) was intended to apply to improper conduct occurring before admission, I feel greater doubt. If the act of misconduct be viewed apart from what it implies, it would be difficult perhaps to say that Clause (f) could apply to it if it took place prior to admission, but I think that Section 13 was intended to provide for causes disqualifying a person for retaining the office of pleader or mukhtar, and that a moral defeat of character maybe one of such causes. It is on the ground of moral defect of character that the High Court is empowered to act under Section 12 when a conviction criminal offence has been had. If a person is proved to be morally unfit to be a pleader, it would seem to be not unreasonable that he should be dismissed from the office, at whatever time the moral defect may have had its origin or first disclosed itself, and in this sense I think that an offence committed prior to admission may be made the foundation of proceedings under Section 13, provided it is of such a nature as to imply a permanent defect of character of a disqualifying kind. If it were otherwise, there would be no machinery provided by the Act for the dismissal of a practitioner, however heinous a criminal he might be, if only his crime had been committed previous to his admission--a conclusion I should feel reluctant to admit unless there were no escape from it.

36. On these questions, therefore, I venture to think the view taken by Mr. Justice Rampini was the correct one.

37. Turning, however, to the merits of the case, I confess I am unable to find on the materials before me, justification for the dismissal or suspension of Purna Chunder Pal. It is important to bear in mind what precisely were the charges preferred against him and which he was called upon to answer. The first was that be concealed from the Judge the fact of his dismissal from the Police and the second, the fact that he had been dismissed from the Police, and as has already been observed, the Sub-Divisional Magistrate was directed to confine his inquiry strictly to these charges. A copy of the letter, moreover, containing the District Magistrate's direction to this effect was served on Purna Chunder Pal for the purpose of informing him of the charges which he had to meet.

38. With respect to both these charges, the Sub-Divisional Magistrate has found against Purna Chunder Pal. As to the first, however, there is not an iota of evidence upon the record nor does the Magistrate state his reasons for his finding. Somewhat curiously the question whether Purna Chunder Pal had concealed his antecedents from the pleader who certified to his character was the only one to which the Magistrate really seems to have devoted his attention. But that question was not before him. The second charge was proved by the evidence of a Police-officer and was indeed admitted by Purna Chunder Pal, who suggested an explanation of his dismissal, which may be a sufficient or insufficient explanation; but, at all events, the Sub-Divisional Magistrate has expressed no opinion as to its merits; so that it comas to this that the first charge has been found to be established in the absence of all evidence in support of it, and the second charge has been established by evidence as well as by Purna Chunder Pal's own admission.

39. With respect to the first charge, I feel myself unable under the circumstances to affirm the recommendation of the Sub-Divisional Magistrate, and this charge must, in my judgment, be put out of view altogether. There are no materials upon the record to enable one to pronounce an opinion as to its truth or falsehood, and it seems to me, therefore, unnecessary to express any opinion on the question whether, if it had been properly established, it would have afforded reasonable cause for either the dismissal or suspension of Purna Chunder Pal.

40. The question, however, remains whether he ought to be dismissed or suspended in consequence simply of his dismissal from the Police, and this question ought, I think, to be answered in the negative.

41. Regarding this charge in its strictness and as it has been dealt with by the Magistrate who held the inquiry, it would be sufficient, I think, to justify that answer if one were to say that the reasons which would warrant a dismissal from the police might well fall far short of or differ from those which would warrant dismissal from the profession of mukhtar; and perhaps, in strict fairness to Purna Chunder Pal, one ought not to go behind the precise charge which was formulated against him, for he was not called upon to say anything one way or the other as to the correctness of the facts and inferences arrived at by the Magistrate who dismissed him, and on the strength of which his dismissal took place. But if one is at liberty to go behind the charge and to treat the offences found by the District Magistrate in his order of dismissal as if they constituted the subject-matter of the present charge, can it be justly said that they have now been established, as the Act requires, by evidence? or are we to accept as evidence, for the purpose of a proceeding which, it is to be remembered, involves the possibility of depriving a person, belonging to a respectable profession of the means of gaining a living, the opinions of the head of a department formed without taking evidence in the presence of the person affected and without hearing him, and formed, moreover, in the teeth of the opinion to the contrary of the highest judicial tribunal of the district? For my own part I have no hesitation in answering these questions in the negative. I do not for a moment mean to suggest that the District Magistrate may not have been 'departmentally' correct, in his action. One has, however, but to glance at the reasons assigned by him for his conclusions in order to estimate the value of the evidence on which he proceeded, and, in the present matter at all events, we have, I think, to deal with legal proof and not with the 'moral convictions' of the Magistrate.

42. On this branch of the case, then, I agree with Mr. Justice Ghose in thinking that no case either for dismissal or suspension has been made out against Purna Chunder Pal. I would only refer further to the judgment of the late Chief Justice, Sir Barnes Peacock, in the case of In the matter of the petition of Ahmeenooddeen Ahmed (1866) 6 W.E., Mis., 5, a case in many respects resembling the present, in which the learned Chief Justice clearly indicates the principles which ought to govern such a proceeding as this. His remarks, I think, fully bear me out in the view of the matter which I have taken.

43. I wish, however, to add that what I have now said proceeds on the assumption that this Court is properly seized of the case--a matter as to which I entertain considerable doubt. Section 13 of the Legal Practitioners' Act authorizes the High Court, after such inquiry as it thinks fit, to suspend or dismiss a pleader or mukhtar for any of the causes specified in the section, but the power of Subordinate Courts is much more restricted. Section 14 deals with that power and provides that, if a pleader or mukhtar practising in any Subordinate Court is charged in such Court with 'taking instructions as aforesaid' or 'with any such misconduct as aforesaid,' the presiding officer shall send him a copy of the charge and also a notice that, on a day to be appointed therein, such charge will be taken into consideration; and then follow directions as to the procedure to be adopted in the matter. The taking of instructions, and misconduct here referred to, relate to Clauses (a) and (b) respectively of Section 13 [see In the matter of Southekal Krishna Rao (1887) I.L.R., 15 Cal, 152: L.R., 14 I.A., 154] and it is only in such cases that a Subordinate Court is authorized to proceed under Section 14. The charges in the present case do not fall under either of these heads, and it seems to me therefore, that the proceedings are bad. The inquiry ought, I think, to have been held by the High Court.

44. In the result I think that Puma Chunder Pal ought to be acquitted and it is so ordered.


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