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HIGH COURT OF CALCUTTA
Bose
SURESH CHANDRA - Appellant
Versus
HIMANGSHU KUMAR ROY - Respondent
Matter 4 Of 1951
Decided On : MAY 22, 1951
CONSTITUTIONAL LAW - ARTICLE 226 - WRIT OF CERTIORARI - DEPARTMENTAL PROCEEDINGS - DISMISSAL FROM SERVICE - JURISDICTION - ARTICLE 311 OF THE CONSTITUTION - BENGAL SUBORDINATE SERVICE (DISCIPLINE AND APPEAL) RULES, 1936 - RULES 8 AND 9 - POLICE REGULATIONS, BENGAL, 1915 - RULE 15 - ARTICLE 20 (2) OF THE CONSTITUTION - SECTION 403, CRIMINAL P. C. - SECTION 26, GENERAL CLAUSES ACT (ACT 10 OF 1897) - RULE 863 OF THE POLICE REGULATIONS.
Fact of the Case:
The petitioner, a member of the clerical establishment in the Bengal Police, was transferred to the Intelligence Branch office at Lord Sinha Road as an Assistant. He was accused of accepting a bribe of Rs. 50/- from one Amulya Choudhury for securing his re-appointment in the Police Force. The petitioner was convicted by the Magistrate of Howrah for an offence under Section 420, I. P. C., but was acquitted by the Sessions Judge, Howrah. Thereafter, a departmental enquiry was held against the petitioner in respect of the identical charges on which he was acquitted and he was dismissed from service.
Finding of the Court:
The Court held that the order of dismissal was made without jurisdiction, being made by a person not competent to make it. The Court also held that the departmental proceedings were not barred by Article 20 (2) of the Constitution, as the said Article does not have reference to departmental or disciplinary proceedings taken for inflicting departmental penalty or punishment on an officer belonging to the department for any misconduct.
Issues: 1. Whether the order of dismissal was made without jurisdiction? 2. Whether the departmental proceedings were barred by Article 20 (2) of the Constitution?
Ratio Decidendi: 1. The Court held that the order of dismissal was made without jurisdiction, as it was made by a person not competent to make it. The Court relied on Article 311 of the Constitution, which provides that no person who is a member of a Civil Service of the Union or an All-India Service or a Civil Service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. The Court also relied on Rules 8 and 9 of the Bengal Subordinate Service (Discipline and Appeal) Rules, 1936, which lay down ranks of the officers who are competent to impose penalties upon the members of the services as specified in the schedule annexed to the rules. 2. The Court held that the departmental proceedings were not barred by Article 20 (2) of the Constitution, as the said Article does not have reference to departmental or disciplinary proceedings taken for inflicting departmental penalty or punishment on an officer belonging to the department for any misconduct. The Court relied on Rule 863 of the Police Regulations, which provides that "an order of discharge or acquittal of a police officer by a Court shall not be a bar to the award of departmental punishment to that officer in respect of the same cause or matter."
Final Decision: The Court made the Rule absolute and quashed and cancelled the Order of dismissal dated 6-5-1950. The petitioner was entitled to the costs of the present proceedings.
( 1 ) THIS is an application under Article 226 of the Constitution for a Writ of Certiorari for quashing the order dated 6-5-1950, passed by respondent 2 in certain departmental proceedings taken against the petitioner.
( 2 ) IT appears that the petitioner was a member of the clerical establishment in the Bengal Police for the last 23 years and was governed by the Bengal Subordinate Service (Discipline and Appeal) Rules, 1936. It is stated by the learned counsel appearing for the petitioner that the petitioner was appointed a clerk in the Bengal Police some time in April 1927 by the Deputy Inspector General, Backergunj range, and the petitioner was given a letter of appointment according to the service rules of the Police Service. This fact of the petitioner being appointed by the Deputy Inspector General of Police, Backergunj, is, however, not stated in the petition but it appears that for the purpose of establishing this fact before the Court the petitioner's solicitor by a letter dated 9-4-1951 called upon the respondents' solicitor to produce the Police Gazette dated 13-1-1928, and the service book of the petitioner at the hearing but none of these documents have been produced on behalf of the respondents. The same request was repeated at the hearing but with no effect.
( 3 ) IT is alleged in the petition that until 17-12-1947, the petitioner used to work in the Force Department of the Inspector General of Police office along with one Upanand'a Mukherjee and one Bolai Chand Mukherji.
( 4 ) THE Inspector General of Police office is divided into three departments, (1) The Intelligence Branch department which operates from 13, Lord Sinha Road, (2) Force Department and (3) the Budget Department which operates at the Writers Buildings.
( 5 ) UNTIL 17-12-1947 the petitioner was an Assistant in the Force Department, while the said Upananda was in charge as the Assistant Inspector General of Police and the said Bolai was his Head Assistant. The said Bolai Chand who had as long a service to his credit as the petitioner is alleged to have entertained feelings of jealousy towards the petitioner as likely rival to the post of Superintendent in the Inspector General's office. The said Upananda is alleged to have been openly hostile to the petitioner, as the petitioner objected to the transfer and promotion of one Tarananda a brother of the said Upananda some time in 1947 and also for other reasons.
( 6 ) ON 17-12-1947, the petitioner was transferred to the Intelligence Branch office at Lord Sinha Road as an Assistant. Respondent 2 was the Special Superintendent and respondent 1 was the Special Assistant in that office.
( 7 ) ON 25-8-1947, one Amulya Choudhury made an application to the Inspector General of Police for re-appointment in the Police Force. On 1-12-1947 the said Amulya made a further application to the same effect. On 16-12-1947 both Bolai and Upananda endorsed the second application of Amulya holding out hopes of re-appointment. On 20-12-1947, the said Amulya at the instigation of Upananda and Bolai and in conspiracy with them falsely made a complaint to the Deputy Superintendent of Police, anti-corruption department, Government of West Bengal, against the petitioner falsely alleging that the petitioner had promised to secure the re-appointment of the said Amulya provided Amulya paid a bribe to the petitioner of a sum of Rs. 50/ -.
( 8 ) ON 5-1-1948, the said Bolai endorsed the first petition of Amulya dated 25-8-1947, keeping the question of his re-appointment pending.
( 9 ) ON 13-1-1948, the petitioner was suspended with effect from 22-12-1947, under Rule 7, Bengal Subordinate Service Rules.
( 10 ) ON 26-5-1948, the said Upananda granted sanction for the prosecution of the petitioner under Section 161, Penal Code, although he was not the proper authority to grant such sanction.
( 11 ) ON 3-12-1948, the petitioner was convicted by the learned Magistrate of Howrah for an offence under Section 420, I. P.
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