Kamini Kumar Das Choudhury Vs. State of
West Bengal & Ors [1972] INSC 152 (24 July 1972)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH RAY,
A.N.
CITATION: 1972 AIR 2060 1973 SCR (1) 718 1972
SCC (2) 420
CITATOR INFO :
F 1975 SC 533 (25)
ACT:
Constitution of India, Art. 226-Laches in
filing writ petition--Court may refuse discretionary remedy-Disputed questions
of fact arising out of petition-Proper remedy is a suit in a Civil Court.
HEADNOTE:
The appellant who was a Sub-inspector of
police in the Enforcement Branch of the Calcutta Police was ordered by the
Deputy Commissioner of Police to search a house. He was found by the Assistant
Commissioner of Police away from his place of duty. A departmental enquiry was
instituted against him and the said Assistant Commissioner of Police was
appointed the Enquiry Officer. After the report of the Enquiry Officer the
appellant was dismissed by the Deputy Commissioner of Police on 1-8-1951. The
appeal preferred by the appellant to the Inspector Genera( of Police was
dismissed on 27_-10-1951. Thereafter the appellant submitted a memorial to the
Government of West Bengal. He filed a petition in the High Court under Article
226 of the Constitution on 9th September 1953. The delay was explained by him
by saying that fearing harassment and oppression by the Police he had gone away
to the Andaman Islands Hi November 1952. A single judge of the High Court
dismissed the petition on the preliminary grounds namely, (i) that there was
inordinate delay in approaching the High Court, and (ii) that the objection as
to the jurisdiction of the dismissing authority was not taken in the course of
departmental proceedings. The Division Bench dismissed the appeal principally
on the ground of delay through it was disposed to bold that during the Departmental
enquiry the rules of natural justice bad bee" violated. With certificate
appeal was filed in this Court.
HELD: (i) The questions whether there was
bias, ill-will malafides, or a due opportunity to be heard or to produce
evidence, given in the course of departmental proceedings, are so largely
questions of fact that it is difficult to decide them merely on conflicting
assertions 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 a complainant and a witness.
Therefore, quite apart from the ground of
delay in filing the Writ Petition, the assertions and counter-as-ertions 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, the Writ Petition could have been
dismissed on the ground that it is not the practice of Courts to decide such
dispute questions of fact in proceedings under Art. 226 of the Constitution.
L724 B-C] Union of India v. T. R. Varma, [1958] S.C.R. 499 applied.
(ii) The High Court was right in dismissing
the appellant's petition ,on the ground of delay.
The most that the High Court could have done
in the present case was to quash the order of dismissal and to leave the
authorities free to take proceedings 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 bad gone past the age of retirement. In such cases,
it is imperative, if the petitioner wants to 719 invoke the extraordinary
remedies available under Art.. 226 of the Constitution, that he should some to
Court at the earliest reasonably possible opportunity. If there is delay in
getting an adjudication, 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. [725 F-H] Rabindra Nath Bose & Ors.
v. Union of India & Ors. [1970] (2) S.C.R. 697 applied.
State of Madhya Pradesh v. Bhaila) &
Ors., [1964] (6) S.C.R.
261 referred to.
Chanra Bhushana Anr. v. Deputy Director of
Consolidation Regional U.P. & Ors., [1967] (2) S.C.R. 286 distinguished.
[Dismissing the appeal on the above grounds
the Court however observed that in such cases it was undoubtedly just and
proper that the enquiry and punishment 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 Constitution 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 Day 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 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, thereafter, he had gone to take 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, 720 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 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 "antisocial elements" who were,
according to him, friendly with the Deputy Commissioner of Police. The
appellant also assorted that he was harassed by false and frivolous criminal
proceedings under the Essential Supplies Act and under Section 124-A I.P.C. in
October, 1951, due to this grudge of the Deputy Commissioner against him. The
appellant had, however, been duly served with show cause notices at two stages
and had produced evidence which the Enquirying Officer considered relevant.
Permission 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
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 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 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 721 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
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 malafides 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 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, 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 fled the country through fear of prosecution by the respondent No. 3".
The appellant had obtained a certificate of
fitness of the case for appeal to this Court under Article 133 (1) (c) of the
Constitution, because it was contended on behalf of the appellant that, as, the
application under Article 226 of the Constitution had been made within a period
of 3 years from the original order of dismissal, a suit, if filed for a
declaration that the dismissal was wrongful, would have been within time. It
appears that reliance was placed for this contention on the following
observations of Das Gupta, J, in State of Madhya Pradesh v. Bhailal &
Ors(1) (at page 273274) :
"It appears to us however that the
maximum period fixed by the legislature as the time within which the relief by
a suit in a civil Court must be brought may ordinarily be taken to be a
reasonable standard by which delay in seeking remedy under Article 226 can be
measured. This Court may consider the delay unreasonable even if it is less
than the period of limitation prescribed for a 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 as tax under a
legally void provision could be ordered to be refunded.
This Court held that, if the aggrieved person
came to the High Court within the period of limitation prescribed for ordinary
suits for challenging an illegal exaction under a void order, the writ could
issue. It, however, made it clear that this was not an inflexible rule which
could be applied to the exercise of discretionary power under 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 obtaining relief by an action in
a civil court or to deny defences legitimately open in such actions. It has
been made clear more than once that the power to give relief under Article 226
is a 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 High
Courts rightly take into consideration in the exercise of that discretion is
the delay made by the aggrieved party in seeking 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 consequential
relief. Thus, where as in these cases, a person comes to the Court for relief
under Article 226 on the allegation that be has been assessed to tax under a
void legislation and having paid it under a mistake is entitled to get it back
the court, if itfinds that the assessment (1) [1964]S.C.R.261.
723 was void, being made under a 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 desirable to lay down any rule for
universal application.
It may however he stated as a general rule
that if there has been unreasonable delay the.
court ought not ordinarily to lend its aid to
a party by this extraordinary 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 a 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 discretion
to leave the party to seek his remedy by the ordinary mode of action in a civil
court and to refuse to exercise in his favour the extraordinary remedy under
Art. 226 of the Constitution".
In the case before us, we find that at least
the following questions on which both sides made conflicting assertions in
affidavits before the Court, were seriously disputed : (1) Was the appellant
denied due opportunity to adduce any relevant evidence or to cross-examine
witnesses? (2) Did the Deputy Commissioner of Police, who had passed the
dismissal order, become a complainant or a necessary witness in the case so
that be could not award punishments simply because he had passed the order
which the appellant was shown to have disobeyed ? (3) Was there any actual bias
on the part of the dismissing authority, or, in other words, was the order of
dismissal vitiated by malafides ? Perhaps, it was for this reason, as the
Division Bench had observed, that the appellant did not press his case on
disputed questions of fact before the Single Judge. Although, the appellant
raised these points in appeal, yet, the Division Bench was only impressed by
the submission that the Deputy Commissioner of Police was in the position of a
complainant who could not act as a Judge. But we find that the actual violation
of the order of the Deputy Commissioner was detected by other officers. It is
true that the Enquiring Officer had made certain charges against the appellant
when he found him returning from somewhere, one furlong removed 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 a report.
It could more properly be said that he and
not the Deputy Commissioner of Police was the accusing officer. In such cases
it is 724 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 a due opportunity to be heard or to produce
evidence, given in the course of departmental proceedings, are so largely
questions of fact that it is difficult to decide them merely on conflicting
assertions 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 a complainant and a witness. We, therefore, think that, quite apart from
the ground of delay in filing the Writ Petition, the assertions and counterassertions
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 Writ Petition could
have been dismissed on the ground that it is not the practice of Courts to
decide such disputed questions of fact in proceedings under Article 226 of the
Constitution. Other proceedings are more appropriate for a just 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 Calcutta High Court had specifically repelled the allegations of malafides
and ill-will. If, however, the appellant 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 not think that the discretion of the
learned Single Judge and the Division Bench, with regard to a delay which
defeated the petitioner's right to a 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 Court has set aside an order of the Allahabad
High Court dismissing a Writ Petition in limine by "exalting a rule of
practice into a rule of limitation" so that a 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
explanation given by the petitioner-appellant for the delay in filing his Writ
Petition for so long had been disbelieved by both the learn Single Judge and
the Division Bench on good and reasonable grounds.
(1) (19581 S.C.R. 499.
(2) [1967] 2 S. C. R. 286.
725 Rabindra Nath Bose & Ors. v. Union of
India & Ors. (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 that no relief should
be given to petitioners who without any reasonable explanation, approach this
Court under Article 32 of the Constitution after inordinate delay. The highest
Court in this land has been given Original Jurisdiction to entertain petitions
under Article 32 of the Constitution. It could not have been the intention that
this Court would go into stale demands after a lapse of years. It is said that
Article 32 is itself a guaranteed right.
So it is, but it does not follow from this
that it was the intention of the Constitution makers that this Court should
discard all principles 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 a 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 a Civil Court, the
period of limitation would not have expired. The question in such cases is
always whether relief under Article 226 of the Constitution could more justly
and properly be given than by leaving the parties to the ordinary remedy of a
suit. A case in which a tax is imposed under a 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
the authorities 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
Constitution, that he should come to Court at the earliest reasonably possible
opportunity. If there is delay in getting an adjudication, 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.
(1) [1970]2 S.C.R. 697.
726 We may mention that the Division Bench of
Calcutta High Court had, treating the case as one for a mandamus to reinstate
the appellant, relied upon the 'statements in Halsbury's Laws of England,
(Third Edition, Volume 11, page 73 article 133) that except in a case where the
delay is accounted for mandamus will not be granted unless supplied for within
a reasonable time after the demand and refusal".
The Division Bench had also 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, a reasonable
period may be indicated for applications for writs of mandamus, but relief may
be refused on the ground of acquiescence and presumed abandonment of the right
to complain inferred from inordinate delay. It rightly observed that laches is
a well established ground for refusal to exercise the discretion to issue a
writ. The Division Bench had also referred to public interest or public policy
which could be taken into account in cases where a public servant had come to a
Court for an order in the nature of mandamus for reinstatement. It had held
that, in such cases, promptness on the part of the aggrieved servant is
essential for invoking the extraordinary jurisdiction of a High Court so that
the State is not called upon to pay unnecessarily for the period for which the
dismissed servant is not employed by it. Indeed, delay may make the motives of
the dismissed servant, who may have some technical ground to urge against the
dismissal, suspect. We think that there are good grounds here for a refusal to
exercise the discretion to interfere with the impugned order of dismissal.
The result is that we dismiss this appeal.
The parties will bear their own costs.
G.C.
Appeal dismissed.
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