Hari Pada Mondal v. State of West Bengal — 1972 DIGILAW 142 (CAL)

JUDGMENT The judgment of the Court was as follows : This Rule is directed against the order dated 26. 8. 1967 passed by the Additional Superintendent of Police, (H.Q.), Burdwan dismissing the petitioner, a constable from service. The facts stated by the petitioner in short are as follows : The petitioner, a citizen of India, was a constable in the Bengal Police Force since 1946 and at the relevant time posted Purbasthali Police Station deputed to Nandanghat check-post. On 19.7.66, the petitioner with other constables while in anti-smuggling duty in Gokarna field found three bags of unclaimed rice; one bag was Seized by the petitioner while the other bags were seized by the other constables. The petitioner came to the camp with the bag of rice seized by him and deposited the same at the check-post with the Sub-Inspector of Police-in-Charge. The other constables who seized the other two bags of rice were late in arriving at the check-post and the petitioner believed that the two bags of rice were similarly deposited by other constables there. Next morning the two bags were found in the malkhana but were not entered into the general diary and were as such seized by the said Sub-Inspector-in-Charge on 20.7.1966. 2. Thereafter a departmental proceeding started against the petitioner and he was served with the following charge-sheet : "He is charged with gross misconduct in that on 19.7.66 at about 21.00 Hrs. he with other NVF/HG's while on patrol duty at Gokarna field, seized three bags of rice and deposited only one bag containing 25 Kgs. of rice while he returned to the check-post keeping the other two bags of rice weighing about 50 kgs. for mis-appropriation which was later recovered on his identification." A longwith the charge-sheet, copies of certain documents were forwarded to him. It may be mentioned here that no copy of the command certificate was forwarded to him alongwith the said documents. It appears that the petitioner pleaded not guilty to the charge and was given a personal hearing by the Sub-Divisional Police Officer, Kalna who held the enquiry. At the said enquiry, evidence was adduced on behalf of the prosecution as also by the petitioner and the Enquiry Officer by his order dated 3.7.1967 found that the charge of mis-appropriation of two bags of rice Ins not been proved against the petitioner. At the said enquiry, evidence was adduced on behalf of the prosecution as also by the petitioner and the Enquiry Officer by his order dated 3.7.1967 found that the charge of mis-appropriation of two bags of rice Ins not been proved against the petitioner. The Enquiry Officer recommended that the petitioner be exonerated from the charge and the proceeding be filed. 3. The Superintendent of Police, Burdwan, being the Disciplinary Authority, however did not agree with the finding of the Enquiry Officer and on a consideration on materials on record came to the conclusion that the petitioner, who was the leader of the patrol party, submitted a report about the seizure of one bag of rice from one person only which was supported by the command certificate Exhibit 5 before the Enquiry Officer, while in fact two more bags of rice were seized. It would also appear that there were interpolations and erasures in the said certificate which removed all doubts about the responsibility of the petitioner in the matter. On a consideration of the evidence as adduced the Superintendent of Police found that the charge against the delinquent had been proved beyond all reasonable doubts. He called upon the petitioner to show cause why he should not be dismissed from service for the charge proved against him. 4. The petitioner thereafter showed cause to the same by a written representation dated 20.8.67 denying the charges and submitted that the charge was cropped up at the instance of others. This representation was sent to the Additional Superintendent of Police, (H. Q.), Burdwan. The Additional Superintendent of Police, (H. Q.), Burdwan after considering the representation passed an order dismissing the petitioner from service with effect from 26.8.1967 as stated shove. There was an appeal by a written representation to the Deputy Inspector General of Police, Burdwan Range, Chinsura. The said representation was also rejected by order dated 18.7.68. The petitioner obtained this rule on 10.12.69 against the said orders. 5. The petitioner contended that the disciplinary proceeding against him was in violation of the provision of Article 311, (2) of the Constitution for two reasons-firstly, the order of dismissal passed by the Additional Superintendent of Police was not in accordance with the provision of Article 311 (2) of the Constitution as he was sought to be dismissed by the authority subordinate to that by which appointed. Secondly, the copy of the command certificate, the only material document on which the petitioner was found guilty by the Superintendent of Police, was never forwarded to him and it was only produced at the hearing before the Enquiry Officer. This has resulted in failure of natural justice and the petitioner was not given a reasonable opportunity of being heard. For these reasons, the petitioner submitted that the proceeding against him including the orders of his dismissal from service should be quashed. 6. Return was made to the rule by the respondents by an affidavit-in-opposition in which it was stated that the enquiry was in accordance with law and all orders passed were by the competent authority. It was further stated that the command certificate was duly exhibited by the Enquiry Officer and a copy thereof was made over to the petitioner at the enquiry proceeding. It was stated that there was no violation of any provisions of law in the enquiry culminating in the order of dismissal of the petitioner. The petitioner filed in affidavit-in-reply reiterating the contentions made by him in the petition and he further stated that the command certificate was neither handed over to him nor disclosed prior to its being admitted in evidence. 7. Mr. Tapendra Kumar Pal, learned Advocate for the petitioner has pointed that the order of dismissal passed by the Additional Superintendent of Police was in violation of the mandatory provisions of Article 311 (2) of the Constitution as the said officer is subordinate to the appointing authority of the petitioner which is the Superintendent of the Police. In support he referred to various regulations of the Police Regulations, Bengal, 1943,. Vol. I. Mr. Pal referred to Regulation 15(a) which states that the Superintendent of Police is the immediate head of the police force of the district and is responsible for all matters concerning its internal economy and management and for its efficiency and discipline. He is also responsible, subject to the general control of the District Magistrate, for the criminal administration of the district and for the proper performance by officers subordinate to him of all preventive and executive duties. Mr. Pal then referred to Regulation 39(a) which states that the Additional Superintendent is in subordinate alliance with the Superintendent and holds a position similar to that of a second in command of the regiment. Mr. Pal then referred to Regulation 39(a) which states that the Additional Superintendent is in subordinate alliance with the Superintendent and holds a position similar to that of a second in command of the regiment. It further provides that two officers shall work in constant co-operation and when one of them is absent from Head Quarters, the other shall do his current work. In Regulation 40(c) there are certain restrictions on delegations by the Superintendent to the Additional Superintendent which includes the discipline and general control of the police force under him the responsibility in respect whereof is not to be delegated. It may be noted that under Regulation 746, the appointing authority of constables is the Superintendent of Police. Under Regulation 882(a) the Appellate Authority to whom appeals lie against orders of punishment by the Superintendent is the Deputy Inspector General. Mr. Pal contended that these regulations invariably indicate that the Additional Superintendent of Police is subordinate to the Superintendent and the Superintendent cannot delegate to the Additional Superintendent his responsibility and powers in the matters of discipline in the police force. Accordingly, the impugned orders dismissing the petitioner by the Additional Superintend dent is not by the competent authority and as such is invalid in law. 8. Mr. P. K. Sen Gupta, the learned Counsel for the respondent, has drawn my attention to Regulation I which says that the word Superintendent means a Superintendent of Police and includes an Additional Superintendent. He also referred to section 1 of the Police Act (Act V of 1861), which provides, inter alia, in section 1 (Interpretation Clause) that words "District Superintendent" and "District Superintendent of Police" shall include any "Assistant District Superintendent". Accordingly any order which could be passed by the District Superintendent could as well be passed by the Additional Superintendent and the impugned order thus is not bad or without jurisdiction. It may be noted that the Police Regulations referred to above have been framed in exercise of powers under sections 2, 3, 7, and 12 of the Police Act. 9. Regulation I provides that the Superintendent will include an Additional Superintendent unless there is anything repugnant in the subject or context. According to Mr. Pal in view of the regulations referred to above equating an Additional Superintendent with the Superintendent would be repugnant to Regulations 15(a), 39(a) & 40(c). 10. 9. Regulation I provides that the Superintendent will include an Additional Superintendent unless there is anything repugnant in the subject or context. According to Mr. Pal in view of the regulations referred to above equating an Additional Superintendent with the Superintendent would be repugnant to Regulations 15(a), 39(a) & 40(c). 10. Regulation 15(a) provides for the responsibility of the Superintendent of Police, as the immediate head' of the police force of the district, for the efficiency and discipline of the police force and for criminal administration' of the District and for due performance of all preventive and executive duties by the subordinate officers. Regulation 39 states that the Additional Superintendent is in subordinate alliance with the Superintendent, as if as second in command of agreement. This regulation provides the duties which may be delegated to the Additional Superintendents. Regulation 40 provides the restrictions on delegation to Additional Superintendents and the prohibition relates to the discipline and general control of the police force. 11. A dose examination of the said regulations indicates that the responsibility and powers of the Superintendent of Police as the head of the police force of the district are intended to be preserved exclusively with him, Such responsibility and powers relate to the general control of the police force under him and the criminal administration of the district and any delegation of responsibility by him in respect thereof to the Additional Superintendent is expressly prohibited by Regulation 40(c). Exercise of powers of the Superintendent by the Additional Superintendent which does not touch the drill, discipline and general control of the police force or the criminal administration of the district cannot be said to be repugnant to any of the Regulations referred to above. There is no express or implied restriction or prohibition in the Regulations relating to the exercise of powers by the Additional Superintendent in respect of particular member or members of the police force as such power is distinct from the general control of the police force envisaged in the Regulations 15(a) & 40(c). Accordingly it and cannot be said that the order relating to a particular officer in a disciplinary proceeding is in any way repugnant ~o the said regulations or in matters covered by them. For the above reasons it is not possible to accept the contention of Mr. Pal on this point. 12. Accordingly it and cannot be said that the order relating to a particular officer in a disciplinary proceeding is in any way repugnant ~o the said regulations or in matters covered by them. For the above reasons it is not possible to accept the contention of Mr. Pal on this point. 12. As to the admission in evidence of the command certificate. Mr. Pal has complained that a serious prejudice has been caused to the petitioner in relying on the said document, copy of which was never given to him and the said document came to the light only at the enquiry proceeding. In support, Mr. Pal referred to the decision in (1) Dr. G. V. Pantutu v. Government of Andhra Pradesh, AIR 1958 AP 240 in which reference was made to the decision of (2) R. v. Architects Registration Tribunal, reported in 1945(2) All ER 131. In this case it was held that reliance on documents, contents and sources of which were not divulged to the applicant, is improper for a tribunal acting in quasi-judicial capacity. It was further held that mere asking the applicant who explained certain information contained in the said documents was not a real and effective opportunity of meeting the allegations against him. In the Andhra Pradesh case, Subba Rao, C.J. (as his Lordship then was) observed at p. 246, while accepting the above principle, that the order cannot be set aside without due regard to the question whether it has prejudiced the party concerned. In that case it was held that the mere fact that certain documents were released during the trial and formally marked at a subsequent stage is not in itself a ground for setting aside the order unless it is established that the party has been prejudiced by such marking. 13. It would appear that in the present case this command certificate (Ext. V) was marked as exhibit before the Enquiry Officer and the petitioner was fully aware of the same. In the several representations made by him against the second show-cause notice as also before the Inspector General of Police no grievance at any point of time was made by him about the admission of the command certificate as exhibit or of the alleged failure of the authorities to give him a copy thereof as causing any prejudice to him. In the several representations made by him against the second show-cause notice as also before the Inspector General of Police no grievance at any point of time was made by him about the admission of the command certificate as exhibit or of the alleged failure of the authorities to give him a copy thereof as causing any prejudice to him. Accepting that the service of the certificate was a material defect, it created no prejudice to the petitioner as is obvious from the representations made subsequently by him. For this reason, I am unable to accept the contention of Mr. Pal that this failure was a fatal irregularity vitiating the proceeding. For the above reasons the contentions raised by the petition fail and the Rule is accordingly discharged. All interim orders are vacated. There will, however, be no order for costs.