Superintendent of Police, Manipur v. R. K. Tomalsana Singh
1970-08-11
R.S.BINDRA
body1970
DigiLaw.ai
ORDER : This is an application under clause (c) of Article 133 (1) of the Constitution of India for a certificate of fitness of appeal to the Supreme Court against the order dated 3rd January 1970 by which this Court allowed the writ petition of Tomalsana Singh, a Sub-Inspector of Police, and quashed the order by which he had been dismissed from service by the Superintendent of Police. 2. Clause (c) reads, in isolation,thus : "An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies that the case is a fit one for appeal to the Supreme Court." Obviously, the question of granting the certificate under this clause is left solely at the discretion of the High Court. The Federal Court held in the case of Jagannath v. United Province, AIR 1944 FC 23, that the question of grant of leave to appeal must be dealt with on the facts and circumstances of each case and that it is neither possible nor desirable to crystallise the rules relating to the exercise of the Courts discretion in the matter. Some guidelines in the matter of exercise of that discretion were indicated by the Supreme Court in Nar Singh v. State of Uttar Pradesh, AIR 1954 SC 457 . It was observed therein, while expounding clause (c), that "the only condition is the discretion of the High Court but the discretion is a judicial one and must be judicially exercised along the well-established lines which govern these matters". It was observed further that if the discretion is properly exercised on the well-established and proper lines, then, as in all questions where an exercise of discretion is involved, there would be no interference except on very strong grounds; but if, on the face of the order, it is apparent that the Court has misdirected itself and considered that its discretion was fettered when it was not, or that it had none, then the superior Court must either remit the case or exercise the discretion itself. "These are the well-known lines", the Supreme Court added, "on which questions of discretion are dealt with in the Superior Courts and they apply with as much force to certificates under Article 134 (1) (c) as elsewhere".
"These are the well-known lines", the Supreme Court added, "on which questions of discretion are dealt with in the Superior Courts and they apply with as much force to certificates under Article 134 (1) (c) as elsewhere". Earlier, the Supreme Court had emphasised that the language of Art, 134 (1) (c) and Article 133 (1) (c) is identical. Referring to corresponding clause of Section 109 of the Civil Procedure Code, Lord Hobhouse said in the case of Banarsi Prasad v. Kashi Krishna, (1901) ILR 23 All 227 (PC) : "That it is clearly intended to meet special cases -such, for example, as those in which the point in dispute is not measurable by money, though it may be of great importance." Subsequently, in the case reported as AIR 1921 PC 25, Radhakrishna v. Swaminatha, the Privy Council held that Cl. (c) contemplates - "cases in which it is impossible to define in money value the exact character of the dispute; there are questions, as for example, those relating to religious rites and ceremonies, to caste and family rights, or such matters as the reduction of the capital of companies as well as questions of wide public importance in which the subject-matter in dispute cannot be reduced into actual terms of money." 3. On the basis of principles enunciated in the authorities cited above it appears to be well settled that the test to determine whether the case is a fit one to be certified under clause (c) of Article 133 (1) is to find out whether the point involved is of great public or private importance, or whether there are any other exceptional circumstances justifying the grant of a certificate. There is, at the same time, respectable opinion in support of the proposition that the mere existence of a substantial question of law is not sufficient for the purpose of clause (c). As an instance I invite reference to AIR 1953 Raj 42 (FB), Gulab Bai v. Manphool Bai, a Full Bench decision. 4. On a thorough survey of the relevant authorities the Supreme Court formulated a test for determining whether a question of law raised is substantial in the case of Sir Chunilal v. Century Spinning and Manufacturing Co. Ltd.. AIR 1962 SC 1314 .
4. On a thorough survey of the relevant authorities the Supreme Court formulated a test for determining whether a question of law raised is substantial in the case of Sir Chunilal v. Century Spinning and Manufacturing Co. Ltd.. AIR 1962 SC 1314 . The relevant head note of the authority reads as under "The proper test for determining whether a question of law raised in the case is substantial would be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the Highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." The analysis of this test would show that firstly the Court is to determine whether the question of law raised is of general public importance and if not whether it directly and substantially affects the rights of the parties. If either of those two conditions is satisfied, the Court is to proceed further and find out whether - (a) the question of law is an open question in the sense that it is not finally settled by the Supreme Court or by thePrivy Council or by the Federal Court; or (b) the question is not free from difficulty; and (c) the question calls for discussion of alternative views. The Supreme Court if I may say, also prescribed, besides this positive test a negative test, viz., that if the question is settled by the highest Court, or the general principles to be applied In determining the question are well settled and there is a mere question of applying those principles, or the plea raised is palpably absurd, the question would not be a substantial question of law.
The expression "palpably absurd" used by the Supreme Court was, I believe, necessitated in the context of the view taken by Bose, C. J., in the case of Dinkarrao v. Rattansey, AIR 1949 Nag 300, to the effect that "a question of law is substantial as between the parties if the decision turns one way or another on the particular view taken of the law." In the opinion of the Supreme Court this observation of Bose C. J., was "a little too wide". The Supreme Court stated further that "we are prepared to assume that the learned Chief Justice did not intend to say that where a question of law raised is palpably absurd it would still be regarded as a substantial question of law merely because it affects the decision of the case one way or the other." What the Supreme Court meant, I may venture to state, was that if the question of law raised is much too simple and admits of an easy solution, though it may affect the decision of the case one way or the other, it will not fall within the category of "substantial question of law." 5. I now proceed to apply the principles outlined above to the facts of the case in hand to find out if there is valid justification for issuance of the certificate prayed for. The principal question debated in this Court when the writ petition came up for hearing was whether the order dated 27th July 1951 of Shri E.P. Moon the then Chief Commissioner of Manipur in his capacity as Inspector General of Police under section 12 of the Police Act, 1961 was valid in law, and whether he had any authority to prescribe rules governing the disciplinary proceedings against the personnel of the Manipur Police. Section 12 of the Act provides inter alia that the Inspector General of Police may, subject to the approval of the State Government frame such orders and rules as he shall deem expedient relative to the organization, classification and distribution of the Police Force. Two-pronged objection was taken against that order by the learned counsel for the writ-petitioner.
Section 12 of the Act provides inter alia that the Inspector General of Police may, subject to the approval of the State Government frame such orders and rules as he shall deem expedient relative to the organization, classification and distribution of the Police Force. Two-pronged objection was taken against that order by the learned counsel for the writ-petitioner. Firstly, it was urged that the power under Section 12 could not be exercised by the Inspector General of Police with out the approval of the State Government and there was no evidence to establish that the State Government had approved the order dated 27th July 1951. In the second instance, it was submitted that the orders and the rules framed under Section 12 could relate only to the "orgnisation" or "classification" or "distribution" of the Police Force and that none of the three expressions embraces the subject of disciplinary proceedings against the members of the Police Force. Since even at this distant date the learned Government Advocate was not in a position to contend that the order dated 27th July 1951 which avowedly had been made by Shri E.P. Moon in his capacity as Inspector General of Police had been approved by the State Government. I therefore find no room for discussion on the point that that order can stand the test of law in the absence of Governmental approval. Nor the other contention raised by the Government Advocate namely, that the expression "organisation" used in Section 12 of the Act is wide enough to include the formulation of rules by the Inspector General of Police bearing on departmental enquiries against the members of the Police Force, appears to have semblance of plausibility. Therefore, the arguments raised in this Court in defence of the legal validity of the order dated 27th of July 1951 would fall within the ambit of negative test prescribed by the Supreme Court in the case of Sir Chunilal, AIR 1962 SC 1314 (supra) and so I hold that no substantial question of law arises for determination by the Supreme Court. 6.
6. The only other argument urged in support of the prayer for certificate was that even if Parts I to V of Assam Police Manual had not been validly extended to Manipur by order dated 27th July 1951 and as a consequence the Central Civil Services (Classification, Control and Appeal) Rules, 1957, formulated by the President under Article 309 of the Constitution apply to Police Force in Manipur, then since there is not much of difference between the two sets of rules, the enquiry held against Tomalsana Singh and the penalty of dismissal imposed on him are not open to legal challenge, I happened to mention in my judgment dated 3rd January 1970, while repelling that argument, that "A careful study of the relevant parts of the Assam Police Manual and 1957 Rules would bring out that there are some fundamental differences between them," and then added that "the procedure for such an enquiry provided by 1957 Rules is far too beneficial and equitable from the standpoint of the delinquent official as compared to that provided in the Assam Police Manual." Concluding the discussion on that point, I observed further that "At any rate, it sounds odd that the enquiry contemplated by the Rules formulated under Article 309 of the Constitution can be substituted by an enquiry held under the Assam Police Manual." The learned Government Advocate was unable to satisfy me that this legal question raised by him is a substantial question of law in the sense explained by the Supreme Court in the case of Sir Chunilal, AIR 1962 SC 1314 (supra). 7. As a result, the application fails and is dismissed. No order as to costs. Application dismissed.