KAMINI KUMAR DAS CHOUDHURY versus STATE OF WEST BENGAL & ORS.

KAMINI KUMAR DAS CHOUDHURY

STATE OF WEST BENGAL & ORS. July 24, 1972

[A. N. RAY AND M. H. BEG, JJ.l

Comtitution of India, A.rt. 226-Lache.• in filing writ petition-Court m., reflue discretionary rttntdy-Disputed questiom of fact arising out of ,etitio,._Proptr remedy i.J suit in Civil Court,

The appllant whu was Sub.Jnapector of polic~ in the Enforcemc;11 l'lranch of the Calcutta Police wa.• ordered by the Deputy Coinmissioner of Police to lftl'Cb houee. He wu found by the' Assistant Colnmissiooer of Police awa:. from his place of duty. d,epartmental enquiry wu illltituted against him and the 1ald Allistant Commissioner of )'ohce w11 appointed the Enquiry Officer. . After the report of the Enqujry Officer t6e appellant was dismissed by the Deputy Commissioner of Police ott 1·8·1951. The appeal preferred· by the appellant to the Inspector General of Police waa diamissed on 27-10.1951. Thereafter the appellant aub-mitted memorial to the Government of West Bengal. · He filed petition in the High Court under Article 226 of the Ooristitution on 9th September 1953, The delay was explained b,- him bv saying that fearing harassment l.lld oppression by the Police be had gone away to the Andaman Island• in November. 1952. single judge of the High Court dismissed the petition on the prelim: . ry grounds namely, (i) that there wasi inordinate delay in ftpproaching 1i1e High Court, and '(ii) that the objection as to the jurisdiction of the dismissing authority was not taken in the course Qf departmental proceedings. The Division Bench dismissed the appeal principally on the ground of delay through it was disposed to hold that during the Departmental enquiry the rules of natural ju,tice had been violated. With certificate appeal was filed in this Court. HELD : (i) The question• whether there was b;a,, ill-will mala{id-.. or • due opportunity to be heard or to produce evidence, given in tbe ooune of departmental proceedings, are so largely questions of fact that it i•. difficult to decide them merely on conflicting assertions made by aftidavits gLven by the t""' sides. The mere fact that the Deputy Com-missioner's orders were alleged to have been disobeyed did not 'make. him complainant and witness. Therefore, quite apart from the ground of delay in Jilin!! the Writ Petition, the assertions .and countcr-as.,,rtions made on merits were of such nature that, in accordanee with the rule laid down bv this Court in Union of India v. T. R. Varma, the Writ Petition rould have been dismissed on the ground that it is not the practice of Courts to decide such dispute questions Qf fact.in proceedings under Art. 226 of the ('.onstitution. [724 B.CJ

Union of India v. T. R. Varma, [1958] S.C.R. 499 applied.

(ii) The ,High Court w .. right in dismiasing the appellant's petition 012 the ground of delay.

Th' most that the High Court cool<l have done in the present cue was to quash the order of dismissal and to leave the authorities free t<> take proceedings against the appellant. The appellant would then llftve got another long period of years in front of him to go on contesting the validity of proceedings against him until he had gone past the age of retirement. In such cases. it is imperative, if the petitioner wants to

invoke the extraordinary remedies available under Art. 226 of the Coru.· titution, that be should some to Court at the earliest reasonably p°""bt• opportunity, If there. is delay in getting an adjudication, suit for damage< actually sustained by wrongful dismissal may become the more or C'I'!"' the only appropriate means of redress. Every case depends upon 1t• own facts. [725 F-Hl

Rubindra Nath Bo>e & Ors. v. Union of India & Ors. [19701 (2\ S.C.R. 697 applied.

S:ate of Madhya Pradesh v. Bhai!al & Ors., [1964] (6) S.C.R. 261 re-

ferred to. ·

Chandra Blwshan & Anr. v. Deputy Director of Consolidation Regio/1111 U.P. cl Ors.,' [19671 (2) S.C.R. 286 distinguished.

[Dismissing the appeal on the above grounds the Court however ob-•erved toot in such cases it was undoubtedly just and proper that the Cft· quiry and punishme~t proceedings should have been entrusted to more unbiased and independent officers.)

CIVIL APPELLATE JURISDICTION : c. A. No. 1162 of 1967.

Appeal by certificate under Article 133 of the Constitutlon of India from the judgment and order dated 14th May 1963 of the Calcutta High Court in Appeal from Order No. 44 of 1958.

Govinda Mukhoty, Rathin Das and G. S. Chatterjee, for the appellant.

P. K. Chakravarty and Prodyat Kumar Chakravarty, for the respondents.

The Judgment of the Court was delivered by

Beg, J. The appellant was jl Sub Inspector of Police serv-ing in the Enforcement Branch of the Calcutta Police on 20th May 1951, when he was qrdered by S. Mukherji, Deputy Commissioner of Police, Enforcement Branch, to search house at 1312 Sir Guru Das Road, ·in Kanku'rgachi Basti. He alleged that the search concluded at 6-30 a.m., and, thereafter, he had gone to take1 tea "with the pennission and/or knowledge of his immediate superior Sub Inspector S. N. Bose". We fail to understand what the appellant exactly meant when he swore. in his affidavit, that he had gone to take tea "with the permission and/or knowledge"of his immediate superior officer. He could not reasonably be believed to be uncertain on such point. The appellant alleged that he was met by the Assistant Commis·-siolier. of Police, Ataur Rahman, when he was coming back:. after taking tea, to the place of search, but he was still at distance of about one furlong from the assigned place of duty. He alleged that the Assistant Commissioner charged the appel-lant, immediately on accosting hlm, with dereliction of his duties, with disobedience of the order to remain at the post of his duty,with carrying out the search perfunctorily, with disloyalty and giving away of information of proposed searchs to offending members of the public so that the purpose of the search, which was said to be detection of spurious ration cards, ·may be defeated. It was stated that the appellant was immediately suspended and the Assistant Commissioner Ataur Rahman was appointed the Enquiry Officer. The appellant also alleged certain violations of the rules under the Police Regulations in Bengal, mainly by not making the charges or their particulars clear to him and by not affording due opportunity to the appellant to offer his defence or to cross-examine witnesses·. Furthermore, the appellant alleged that the proceeding was the result of the bias and ill· will of Deputy Commissioner of Police, S. Mukherji, against him, because the appellant had taken some proceedings against "anti-social elements" who were, according to him, friendly with the Deputy Commissioner of Police. The appellant also assrted that he was harassed by false and frivolous criminal proceedings under the Essential Supplies Act and under Section 124-A l.P.C. in October, 1951, due to this grudge of the Deputy Commis-sioner against him. The appellant had, however, been duly served with show cause notices at two stages and had produced evidenee which the Enquirying Officer considered relevant. Per-mission to call other evidence, considered irrelevant and to cross-examine some witnesses, who had not been relied upon by the prosecution, was not given. The five prosecution witnesses relied upon by the prosecution were cross-examined by the appellant. He had also examined seven defence witnesses. After the report of the Enquirying Officer against the appellant, he was dismissed from the Police Force by the Deputy Commis-sioner of Police, S. Mukherji, on 1-8-1951. The appeal pr1> ferred by the appellant to the Inspector General of Police was also dismissed on 2 7-10-19 51. Thereafter, the petitioner had submitted memorial to the Govt. of West Bengal. He also stated that fearing "harassment and oppression" by the Police he went away to the Andaman Islands in November, 1952. He had filed his petition under Article 226 of the Constitution on 9th September, 1953.

The appellant's petition was dismissed on 11-9-1957 by learned Judge of the Calcutta High Court on two preliminary grounds : firstly, that there was inordinate delay on the part of the appellant in approaching the High Court; and, secondly, that the objection to the jurisdiction of the dismissing authority, the Deputy Commissioner of Police, was not taken, in the course of Departmental proceedings, so that it could not be allowed to be raised before the High Court for the first time. It appears that the main point argued, on merits, before the learried Single

Judge, was the absence of power in the Deputy Commissioner of Police, who was said to be an authority lower in rank than the appointing authority of the appellant, to dismiss the appellant from service. Although it was held that the appellant was debarred from raising this question, as it was not raised during departmental proceedings, yet, the learned Single Judge thought it fit to consider and decide it. The learned Judge held that the Deputy Commissioner of l'olice seemed to be of the same grade and status as the Principal oi the Police Training School, Sharda, with the rank of "Superintendent", and who had appointed the appellant, so that there was no violation of Article 311 ( 1) of the Constitution. And, in any case, the dismissal was confirmed by the higher authority of the Inspector General. The learned Single Judge had also found no substance in the plea of alleged ill-will and mala{ides on the part of the Deputy Com-missioner of Police, S. Mukherji. Furthermore, the learned Judge had found it "difficult to swallow" the appellant's asser-tions that he had gone away to the Andaman Islands to avoid prosecution as he was afraid of being arrested under the Preven-tive Detention Act. Such strange conduct, indicating possible sense of guilt even if the appellant's assertions could be true, was not found to be natural. Hence, the explanation for delay given by the appellant was rejected by the learned Judge.

On appeal from the decision of the learned Single Judge, Division Bench of the Calcutta High Court dismissed it principally on the ground of inordinate delay despite the fact that the Divi-sion Bench was disposed to hold that rules of natural justice had been violated in the Departmental Enquiry against the appellant. The Division Bench, however, observed that it appeared "that the grounds raised against the proper conduct of the Enquiry ' and refusal of some of the prayers of the appellant made during its pendency were not pressed before the Trial Judge". The Division Bench also rejected the explanation of the delay put forward by the appellant. It held that, although it appeared that complainant had assumed the role of judge in departmental proceedings against the appellant, yet, the inordinate delay in approaching the Court was fatal to the success of the appellant. It observed : "If the appellant before us had been able to give satisfactory explanation as to why he could not move the Court within few weeks after June 1952, we would have felt disposed to allow the appeal. As noted already, there is no corroboration of the appellant's statement that he had gone away to the Anda-man Islands or of the fact that he had fled the country through fear of prosecution by the respondent No. 3".

The appellant had obtained certificate of fitness of the case for appeal to this Court under Article 133 (1 )( c) of the Consti-

tution, because it was contended on behalf of the appellant that, a~ the application under Article 226 of the Constitution had been made within period of 3 years from the original order of dil1missal, suit, if filed for declaration that the dismissal was wrongful, would have been within time. It appears that reliance Wli placed for this contention on the following observations of Du Gupta, J, in State of Madhya Pradesh v. Bhai/al & Ors.([1]), (at page 273-274) :

"It appears to us however that the maximum period fixed by the legislature as the time within which the relief by suit in civil Court must be brought may ordinarily be taken to be reasonable standard by which delay in seeking remedy under Article 226 can be mea-sured. This Court may consider the delay unreasonable even if it is less than the period of !imitation prescribed for civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable".In Bhilal's case (Supra), the question before this Court was whether an amount of money illegally realised .is tax under legally void provision could be ordered to be refunded. Thi6 Court held that, if the aggrieved' person came to the High Court within the period of limitation prescribed for ordinary suits for cl!.allenging an illegal exaction under void order, the writ could iiliue. It, however, made it clear that this was not an inftexible rule which could be applied to the exercise of discretionary power uader Article 226 of the Constitution in every case. It cautioned

"At the same time we cannot lose sight of the fact that the special remedy provided in Article 226 is not intended to supersede completely the modes of obtaiaing relief by an action in civil court or to deny defences legtimately open in such actions. It has been made clear more than once that the power to give relief under Article 226 is discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the Hi.gh Courts rightly take into consideration in the exercise of that discretion is the delay made bv the aj!'grieved party in seekinj!' this special remedy and what excuse there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of conse-quential relief. Thus, where as in these cases. person comes to the Court for relief under Article 226 on the allea.ation that he has been assessed to tax under void legislation ancf having uaid it under mistake is entitled to get it back the court, if it finds that the assessment ni ft964J 6 s.c.R. 261.

K. K. DAS I'. WEST JIENG/IL (Beg, J.)

was void, being made under void provision of law, and the payment was made by mistake, is still not bound to exercise its discretion directing repayment. Whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. It is not easy nor is it desir-able to lay down any rule for universal application. It may however he stated as general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to party by this extraordi-nary remedy of mandamus. Again, where even if there is no such delay the Government or the statutory authority against whom the consequential relief is prayed for raises prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the Court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be sound use of dis-cretion to leave the party to seek his remedy by the ordinary mode of action ill civil court and to refuse tp exercise in his favour the extraordinary remedy under Art. 226 of the Constitution".In the case before us, we find that at least the followin11: qllOli-tions on which both sides made conflicting assertions in affidnit• before the Court, were seriously disputed : ( 1) Was the appellant denied due opport:mity to adduce any relevant evidence or (<' cross-exainine witnesses? (2) Did the Deputy Commissioner of Police, who had passed the dismissal order, become comp1ainnt or necessary witness in the case so that he could not award punish-ment simply because he had passed the order which the appellant was shown to have disobeved? (3) Was there anv actual biai; on the part of the dismissing authority, or, in other words, vraio the order of dismissal vitiated by malafides ? Perhans, it wa. for this reason, as the Division. Bench had observed, that the appe!iant did not press his case on disputed questions of fact before the Single Judge. Although, the appellant raised theie points .in appeal, yet, the Division Bench was only impressed by the submission that the Deputy Commissioner of Police was ia. the position of complainant who could not act as Judge. But. we find that the actual violation of the order of the Deputy Com-missioner was detected by other officers. It is true that the En-quiring Officer had made certain charges against the appellant when he found him returning from somewhere, one furlong romoved from the place where, according to orders given, the appellant ·should have been present then, yet, he had merely collected evidence against the appellant and made report. It oould more properly be said that he and not the Deputy Com· missioner of Police was the accusing officer. In such cases it is

undoubtedly just and proper that the enquiry and punishment proceedings should both be entrusted to other officers who may appear to be more unbiased and independent. Nonetheless, the questions whether there was bias, ill-will, malafides, or due opportunity to be heard or to produce evidence, given in the course of departmental proceedings, are so largely questions of fact that rt is difficult to decide them merely on conflicting asser-tions made by affidavits given by the two sides. The mere fact that the Deputy Commissioner's orders were alleged to have been disobeyed did not make him complainant and witness. We, therefore, think that, quite apart from the ground of delay in filing the Writ Petition, the assertions and counter-assertions made on merits were of such a· nature that, in accordance with the rule .laid down by this Court in Union of India v. T. R. Varma([1]) the \'.\'rif Petition could have been dismissed on the ground that it is not the practice of Courts to decide such dis· puted questions of fact in proceedings under Article 226 of the Constitution. Other proceedings are more appropriate for .iust and proper decision of such questions. We find that the position taken up in affidavits filed on behalf of the State and the Police authorities of West Bengal was that the appellant's case was, according to them, considered fairly and impartially and that there was no grudge or ill-will operating against him. The Cale:,. '.a High Court had specifically repelled the allegations of malafides and ill-will. If, however, the appel-lant considers that there is substance in any of his allegations, we think it is best to leave him free to go to an ordinary Civil Court for such relief by way of declaration or damages as may .still be open to him. At any rate, we do r.ot think that the discretion of the learned Single Judge and the Division Bench, with regard to delay which defeated the petitioner's right to discretionary relief, could be interfered with by us in this case.Learned Counsel for the appellant had relied upon Chandra Bhushan &: Anr. v. Deputy Director of Consolidation (Regional) U.P. &: Ors.([2]), where this Comt has set aside an order of the Allahabad High Court .. dismissing Writ Petition in Ii mine by "exalting rule--of practice into rule of limitation", so that few days' delay, shown to have been caused by the closing of the office of the Court for Diwali holidays was not condoned by · the Allahabad High Court. We do not think that the case cited could apply to the facts of the case before us where the peculiar ext>lanation given by the petitioner-appellant for the delay in filing his Writ Petition for so long had been disbelieved by both the learned Single Judge and the Division Bench on good and reason-able grounJs.

(2) [1967] 2 S. C.R. 286.

Rabindra Nath Bose & Ors. v. Union of India & Ors. l 1), was also referred to in the course of arguments, although this case relates to the exercise of the powers of this Court under Article 32 of the Constitution. It was said there by this Court (at- page 712) :-

"But after carefully considering the matter, we are of the view t)lat no relief should be given to petitiopers who without any reas~nable explanation, approach this Court under Article 32 of the Constitution after inordi· nate delay. The highest Court in this land has been given O;:iginal Jurisdiction to entertain petitions u11der Article 32 of the Constitution. It could not have been the intention that this Court would go into stale demands after lapse' of years. It is said that Article 32 is itself guaranteed right. So it is, but it does not follow from this that it was the intention of the Consti-tution makers that .. this Court should discard all prin-ciples and grant relief in petitions filed after inordinate delay".

If this is the position with regard to the petitions under Article 32 of the Constitution, we do not think that the rule that delay defeats the rights of party to seek redress, by means of prerogative Writ under Article 226 of the Constitution, could be held to be abrogated merely because, if the claim had been brought in Civil Court, the period of limitation would not have expired. The question in such cases is always whether relief under Article 226 of the Constitutiol\ could more justly and pro-perly be given than by leaving the parties to the ordinary remedy of suit. case in which tax is imposed under clearly void law is different from one where seriously contested questions of fact have to be decided before an order of dismissal could be held to be void. In the case before us, the most that the High Court could have done was to· quash the order of dismissal and to leave rJ!e l)Uthorities free to take proceedings afresh against the appellant. The appellant would then have got another long period of years in front of him to go on contesting the validity of proceedings against him until he had _gone past the age of retirement. In such cases, it is imperative, if the petitioner wants to invoke the extraordinary remedies available under Article 226 of the Constitu•ion, that he should come to Court at the earliest reasonably possible ooportunity. If there is delay in getting an adiudication, .a suit for damages actually sustained by wrongful dismissal may become the more or even the only appropriate means of redress. Every case depends upon its own facts.We may mention that the Division Bench of Calcutta High Court had, treating the case as one for mandamus to reinstate the appellant, relied upon the statements in Halsbury's Laws of E11gland. (Third Edition, Volume 11, page 73 article 133) that "r.xcept in case where the delay is accounted· for mandamus ,.,ill not be granted unless supplied for within reasonable time after the demand and refusal''. The Division Bench had al~o referred to Farris on "Extraordinary Legal Remedies" (page 228), to hold that not only; on an analogy from the Statute of limitation in civil cases, reasonable period may be indicated for applications for writs of mandamus, but relief may be refused on the ground of acquiescence and presumec\ abandon-ment of the right to complain inferred fr9m inordinate delay. It rightly observed that !aches is well established ground for refu~al to .exercise the discretion to issue writ. The Division Bench had also referred to public interest or public policy which could be taken into account in cases where public servant had eome to Court for an order in the nature of mandamus for r•instat. ·ment. It had held that, in such cases, promptness on the part of the aggrieved servant is es.sential for invoking the extraordinary jurisdiction of High Court so that the State is Aot called upon to pay unnecessarily for the period for which the (&missed servant is not employed by it. Indeed, delay may m .. i:e lhe motives of the dismissed servant, who may have some technical 11round to urge against the dismissal, suspect. We think that mere are good grounds here for refusal to exercise the discretion to interfere with the impugned order of dismissal.

The result .s that we dismiss this appeal. hear their own costs.

The parties will

Appeal dismissed.