Sinha, C.J. - (1.) This is an appeal against an order of A.C. Sen, J. dated the 2nd December, 1965. The facts are briefly as follows: The appellant Shib Nath Mondal was appointed to the post of a Patrol Leader by an order made by the Regional Controller of Procurement, Region III, Calcutta dated the 8th January, 1952. The relevant part of the order is as follows: ORDER "Sri Shib Nath Mondal is appointed to the post of Patrol Leader on a consolidated pay of Rs. 170/- (Rupees One hundred and Seventy) only per mensem inclusive of ad interim increases of pay and is posted to Alipore Circle. The appointment is purely temporary and is sanctioned until further orders and is liable to termination at any time without notice and without any reason being assigned. The appointment is being made on the express condition that he will be liable to be discharged if surplus personnel be available from the Department for filling up this post. In any case adverse police reports are received against him, he will be liable to be discharged without notice at the discretion of the Government."
(2.) Under the said order, he was liable to be posted to any place in West Bengal. On the 29th of June, 1956 notice was served on the appellant terminating his services as a Patrol Leader upon the expiry of one month from the date on which the notice was served upon him. It was served on the same date. A copy of this order passed by the Special Officer (ex-officio) Assistant Secretary to the Government of West Bengal is set out below: "ORDER Calcutta, the 29-6-1956. Notice is hereby given to Shri Sibnath Mondal P/Leader attached to the Directorate Office P and S that due to retrenchment in the department his services will no longer be required and will terminate on the expiry of one month from the date on which this notice is served on him." On the very same date, namely the 29th June 1956 a memorandum was issued from the Home Department of the Government of West Bengal (Police) signed by the Assistant Secretary to the Government of West Bengal and addressed to the Inspector General of Police, West Bengal, being Memorandum No. 2431-P1/ P16/56 dated 29th June 1956 which was in the following terms: "Government of West Bengal. Home Department. (Police). From:--Sri M. M. Bancrjee, M. A., Asstt. Secy, to the Govt. of West Bengal. To :--The Inspector General of Police, West Bengal. No. 2431-/P1/P16/56, dated Calcutta, the 29th June, 1956. In partial modification of this Department memorandum No. 2135-P/1 dated the 15th June, 1956, the undersigned is directed to say that it has been decided by the Government that the staff of 740 cordoning personnel of the food, relief and supplies Department of this Government referred to therein will be treated as temporary employees of the Police Department in the corresponding ranks as shown in the margin (herein shown below) by supplementing the strength temporarily of eight border out posts in checking smuggling of food-grains in especially vulnerable areas. 1. Cordoning Officer Nos. 6 the rank of Inspector of Police 2. Patrol Leaders. 241 the rank of Sub-Inspector of Police. 3. Patrolmen and Lady 493 the rank of Patrollers and scale of Constables. 2. Government accordingly sanctions the creation of the temporary post of 6 Inspectors, 241 Sub Inspectors and 493 Constables of the unarmed branch for a period of six months with effect from the 1st July, 1956. These cordoning personnel will be appointed against these posts in corresponding ranks of a special ease in relaxation of the provisions in the P R. B., 1943. They shall be considered to be temporary employees of the Police Department and orders regarding fixation of their pay in the respective scales of the Police force will follow. Pending such orders, they will continue to draw the pay which they were drawing in the Food, Relief and Supplies Department and the allowance admissible to the different ranks of the police. 3. The charge will proceed against the grant under the appropriate head in the State Police Budget to be augmented later on by reappropriation or otherwise. 4. The Accountant General, West Bengal, has been informed. Sd/- M. M. Banerjee. Asstt. Secy. to the Govt. of West Bengal." This Memorandum affected the appellant, who was one of the 740 cordoning personnel of the Food, Relief and Supplies Department who became temporary employees of the Police Department. On the 24th of July, 1956 an order was made by the Directorate of Procurement and was communicated by the A. R. C. P. Alipore to the appellant, which is in the following terms : "In pursuance of the order of the Directorate P/S Sri Sibnath Mondal who has been appointed as a Sub-Inspector under the order No. 2431/2-P1/P16/56 D/-29-6-56 is hereby released w. e. f. the 25th July '56 A. M. with direction to report to the Supdt. of Police, Nadia immediately. No joining time will be allowed." The appellant thereupon joined his post as a Sub-Inspector and reported to the Superintendent of Police, Nadia. In June, 1961 while the appellant was posted at the Barakar Check- p ost, a police case was started against him and by an order dated the 10th of June, 1961 passed by the Additional Superintendent of Police, Asansol, he was placed under suspension pending the criminal case. In that criminal case, however, he was discharged and in May, 1962 he was released from bis suspension. On or about 26th of May, 1962 a charge sheet was framed against the appellant by Shri B. K. Chakrabortti, Deputy Superintendent of Police, Asansol, which was approved by the Superintendent of Police, Burdwan who signed and attested his approval on the charge-sheet. Charges were two in number, as follows: CHARGE. "You S. I. Shib Nath Mondal of Barakar Check, are hereby charged with gross misconduct and negligence in that : (1) On 18-5-61 at about 20.45 hrs. while on duty in Barakar Check Post, you tried to secret away a chit from your possession to one Tea Stall of Sarathi Dutta near Barakar Check Post. This chit was written by one A. Singh of Sindri in which an offer of Rs. 20/- per month was made for truck No. B. R. A. 7535 working under Bharat Transport. You did not note about this chit in one G. D. or bring it to the notice of your superiors: 2. You allowed C. I. 1044 Ram Bhajan Messer and Rakshi Bhawani Prosad Bhattacharjee to go inside the tent No. 2 leaving the duty for counting money in one and two rupee notes etc. There is no provision to keep any money inside the tent which is a Government Check Post." From the date when the charge-sheet was served on the appellant, and uptill now, he has successfully warded off the holding of any departmental enquiry. The method by which this has been accomplished may be mentioned now. It might be mentioned here that in or about October, 1963 an additional charge was framed, charging the appellant with gross in-disciplined conduct unbecoming of a police officer, in deliberately disobeying the lawful orders of the authorities by not attending the enquiry although ordered to do so. Enquiry on this charge also has been kept in abeyance. On 16th of July, 1962 the appellant made a written representation to the Superintendent of Police, Burdwan describing the charges framed as "illegal", and demanding that the same may be dropped. The ground was that the appellant had been discharged in the criminal case and no departmental proceeding could be taken on the same issue and the second ground was that the Additional. Superintendent of Police, Asansol (Shri P. C. Bhattacharjee) being himself the complainant in the criminal case had no legal authority to get a charge framed against the appellant by a subordinate officer. On the 27th July 1962 this representation was rejected by the Superintendent of Police, Bur-dwan who referred to Regulation 863 (Police Regulation, Bengal) which provides that an order of discharge or acquittal by a Court shall not bar a departmental proceeding. It will also be observed that the charge-sheet had nothing to do with Shri P. C. Bhattacharjee, but it was drawn up by Shri B.K. Chakrabortti, Deputy Superintendent of Police, Asansol and was approved by the Superintendent of Police, Asansol himself. The appellant thereupon preferred an appeal against this order to the Deputy Inspector-General of Police, Western Range and asked that the enquiry should be stopped. No order was made for stopping the enquiry. When asked to attend the enquiry, the appellant wrote to the Superintendent of Police, Burdwan that he would not attend the enquiry pending the receipt of the Deputy Inspector General's Order. On the 23rd September, 1962 the Deputy Inspector General, Western Range, rejected the prayer, Thereupon, the appellant submitted an appeal to the Inspector General of Police, West Bengal. One of the prayers was that the enquiring officer should be changed, Thereafter proceedings were continued, but the appellant repeatedly refused to be present at the enquiry or even to submit his statement. The appellant was so long complaining that the enquiry should not be made by an officer lower in rank than an Additional Superintendent of Police. The Inspector General of Police accordingly ordered that the enquiry may be made by the Additional Superintendent of Police Headquarters, Burdwan. Immediately, the appellant took up the attitude that he had agreed to attend the enquiry by the Deputy Superintendent of Police, Asansol and objected to the holding of the enquiry by the Additional Superintendent of Police Headquarters, Burdwan. He was informed, that having been apprised of the apprehension of the appellant that the Additional Superintendent of Police, Asansol being the complainant in the criminal case, a subordinate officer under him might not be able to make a fair enquiry, an order had been made by the Inspector General that the enquiry should be held by the Additional Superintendent of Police, Burdwan. The appellant then took up the plea that the Inspector General had directed the appellant to attend the enquiry by the Deputy Superintendent of Police, Asansol and he was not going to attend the enquiry by the Additional Superintendent of Police. Burdwan because that would be violating the Inspector General's order. On the 25th September, 1963 the appellant was served with an order of suspension issued by the Superintendent of Police, Burdwan and he was directed to join the police lines, Burdwan immediately. He refused to do so. As stated above, a further charge has been framed for gross indiscipline against the appellant for violating lawful orders. Up-to-now, the appellant considered himself to be employed in the Police Department, and was taking various objections regarding the competency of the enquiring officer etc. all on the footing that he was himself a police officer. For the first time in October, 1963 the appellant woke up and invented a fresh plea that he was an employee in the Food Department under the Government of West Bengal, and was not an employee under the Police Department at all, and therefore the departmental proceedings were not in order and he should not be asked to join the police lines. This appears from a letter written to the Secretary, Food Department to the Government of West Bengal, Annexure "W" to the petition dated 10th of October, 1963. It was followed by the appellant coming to this Court, making an application in the writ jurisdiction, upon which a Rule was issued on 20th November, 1963 and the departmental enquiry was stayed. This Rule came up for hearing before A. C. Sen J. who dismissed the application and discharged the Rule by his order dated 2nd December, 1965. It is against this order that this appeal is directed. Before us, Mr. Dutt has taken only one point, namely that the appellant was an employee under the Food Department of the Government of West Bengal and was no.t in the police service at all. Of course, if this is substantiated, then the departmental proceedings may have to be quashed. Mr. Dutt has referred us to the provisions of the Police Act, 1861 (Act 5 of 1861). First of all he refers to the definition of the word "police" in Section 1 of the said Act. It is provided that the word "police" shall include all persons who shall be 'enrolled' under the said Act. There is no specific provision as to how a person is to be enrolled nor are there any rules in this respect. The next section referred to is Section 8 which runs as follows: "Every police officer, [appointed to the police force other than an officer mentioned in Section 4] shall receive on his appointment a certificate in the form annexed to this Act, under the seal of the Inspector General or such other officer as the Inspector General shall appoint, by virtue of which the person holding such certificate shall be vested with powers, functions and privileges of a police officer. [Such certificate shall cease to have effect whenever the person named in it ceases for any reason to be a police-officer, and, on his ceasing to be such an officer, shall be forthwith surrendered by him to any officer empowered to receive the same. A police-officer shall not by reason of being suspended from office cease to be a police-officer. During the term of such suspension the powers, functions and privileges vested in him as a police-officer shall be in abeyance, but he shall continue subject to the same responsibilities, discipline and penalties and to the same authorities, as if he had not been suspended.]" The form that has been annexed to the Act is as follows: " FORM--(See Section 8) A, B. has been appointed a member of the police force under Act 5 of 1861, and is vested with the powers, functions and privileges of a police-officer." 2-A. It has been stated in the affidavit-in-opposition that a certificate had in fact been issued by the Superintendent of Police, Nadia. It does not, however, appear to be in the form prescribed. What has been disclosed is a district order being D. O. 2366 dated 27-7-56 in which it has been stated that the appellant S. I. Shib Nath Mondal was coming from the cordoning personnel and had joined the police force on 26-7-56. Mr. Dutt has also drawn our attention to Regulation 754 of the Bengal Police Regulations which provides that a person appointed as a police officer including those appointed to ml temporary vacancies shall receive a certificate mentioned in Section 8 of the Police Act, 1861 in Bengal Police Form No. 152. The District Order mentioned above is not in that form.
(3.) The argument advanced is, therefore, as follows: It is urged that a police officer cannot be appointed except by a certificate in the prescribed form. As the appellant was not appointed by such a certificate, he never became a police officer at all and therefore no departmental proceeding could be taken against him. This position has been examined by the learned Judge in the Court below and rejected. We agree with this view. Section 8 merely states that upon appointment, every officer other than an officer mentioned in Section 4, with which we are not concerned in this case, shall receive on his appointment a certificate in the prescribed form. Therefore, it is clear that the appointment itself is not made by the certificate, but that a certificate vests the police officer with powers, functions and privileges of a police officer. In the present case, even if the district order mentioned above is not in the prescribed form, it does not mean that the appellant was not appointed as a police officer. It may be that the absence of a proper certificate may affect the validity of his actions done as a police officer. We are not. however, concerned in this case with any such situation. Upon a consideration of all the materials placed before us, there can be no doubt whatsoever that the appellant was a police officer at the relevant time. At first, he entered service as a Patrol Leader under the Regional Controller of Procurement. According to the very terms of his appointment, it was purely a temporary service liable to termination at any time without notice and without any reason being assigned. Nevertheless, notice of one month was served on the 29th of June, 1956. Even before the notice period expired, he was released with effect from 25th July 1956 and directed to report to the Superintendent of Police of Nadia. In the meantime what had happened was that the entire cordoning staff consisting of 740 persons belonging to the Food, Relief and Supplies Department of the Government of West Bengal was taken over as temporary employees of the Police Department in corresponding ranks. The fact that the appellant's service was temporary and that he was served with notice and released a few days before the notice period expired and his corresponding appointment as a Sub-Inspector of Police, clearly shows that his service as a Patrol Leader in the Department of Food, Relief and Supplies had been terminated and he became a police officer in the rank of a Sub Inspector. Not only does it appear that this is so, but it is also clear that the appellant accepted this position, because he left the Food, Relief and Supplies Department and joined the Police Department and began acting as a Sub Inspector. The new p osts that were created by the memorandum ated 29th June, 1956 were paid out of the State Police Budget and indeed it is not disputed that during all these years the appellant acted as Sub Inspector and had drawn his pay from out of the Police Budget. In fact, even now he is drawing subsistence allowance as a Sub Inspector of Police who has been suspended pending departmental proceedings. Under the circumstances, it is impossible for him to establish that he still belongs to the Department of Food, Relief and Supplies. In the affidavit-in-reply for the first time, he has referred to certain documents showing that while acting as a Sub Inspector at Nadia he had applied for leave from the Food Directorate. It is impossible to take notice of such facts stated for the first time in the affidavit-in-reply. It is obvious that the appellant was closely connected with the cordoning system, although he had joined the police department. The posts were created specially for that purpose. There might have been all kinds of inter-departmental arrangements for the forwarding of leave applications, etc. Such controversial matters raised for the first time in the affidavit-in-reply cannot be taken notice of. Mr. Dutt has also taken the point that the district registers, which had been disclosed, were not in accordance with Regulation 911 so that the D. O. entry was not in order. Again, we are not concerned with these facts. As I said, there may have been irregularities committed by the department. We are only concerned with the question as to whether the appellant belongs to the Food Department or the Police Department. Defects in the district registers or the certificates issued do not affect that question.;