- (1.) The appellant was a Sub Inspector of Police serving in the Enforcement Branch of the Calcutta Police on 20th May 1951, when he was ordered by S. Mukherji, Deputy Commissioner of Police, Enforcement Branch to search a house at 13/2 Sir Guru Das Road, in Kankurgachi Basti. He alleged that the search concluded at 6.30 a.m. and, therefore, he had gone to tale tea "with the permission 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 a point. The appellant alleged that he was met by the Assistant Commissioner of Police. Ataur Rahman, when he was coming back, after taking tea, to the place of search, but he was still at a distance of about one furlong from the assigned place of duty. He alleged that the Assistant Commissioner charged the appellant, immediately on accosting him, 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 searches 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 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 asserted that he was harassed by false and frivolous criminal proceedings under the Essential Supplies Act and under Section 124-A, Indian Penal Code in October, 1951, due to this grudge of the Deputy Commissioner against him. The appellant had, however, been duly stages and had produced evidence which the Enquiring Officer considered relevant. Permission to call other evidence, considered irrelevant and to cross-examine some witnesses, who had not 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 Enquiring Officer against the appellant, he was dismissed from the Police Force by the Deputy Commissioner of Police, S. Mukherji, on 1-8-1951. The appeal preferred by the appellant to the Inspector General of Police was also dismissed on 27-10-1951. Thereafter, the petitioner had submitted a memorial to the Government 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.
(2.) The Appellants petition was dismissed on 11-9-1957 by a 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 learned 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 though it fit to consider and decide it. The learned Judge held that the Deputy Commissioner of Police seemed to be of the same grade and status as the Principal of the police Training School, Sharda, with the rank of a "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 fides on the part of the Deputy Commissioner of Police, S. Mukherji, Furthermore, the learned Judge had found it "difficult to swallow" the appellant's assertions that he had gone away to the Andaman Islands to avoid prosecution as he was afraid of being arrested under the Preventive Detention Act. Such strange conduct, indicating a possible sence 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.
(3.) One appeal from the decision of the learned Single Judge, a Division Bench of the Calcutta High Court dismissed it principally on the ground of inordinate delay despite the fact that the Division 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 a complainant had assumed the role of a 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 a satisfactory explanation as to why he could not move the Court within a 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 Andaman Islands or of the fact that he had filed the country through fear of prosecution by the respondent No.3.";