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Report No. 58

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1. See, for example, rule 630, Bombay High Courts Rules (OS).

2. K. Kauchuni Moopil Nayar v. State of Madras, 1959 Supp (2) SCR 316 (337): AIR 1959 SC 725 (734), para. 13.

3. See also-

(a) C.R.H. Readymoney Ltd. v. State of Bombay, AIR 1958 Born 181 (191), para. 21 (Expert evidence as to wine);

(b) State of Maharashtra v. Bennet Coleman & Co. Ltd., AIR 1964 Bom 213 (216, 217), para. 8 to 10 (Oral evidence as to prize competitions).

5.36. The matter regarding "disputed questions of facts" in a writ petition came up before the Supreme Courts in an appeal,1 recently. The petitioner, Kamini Kumar Das Choudhary, was a Sub-Inspector of Police in Calcutta. He was ordered on 20th May, 1951, to carry out the search of a particular house. During the search, he left the house and went out for taking tea. A departmental enquiry was held against him, and he was dismissed from service by the Dy. Commissioner of police on 1st August, 1951.

1. Kamini Kumar Das Choudlutry v. State of West Bengal, (1971).

5.37. The petitioner filed a writ petition under Article 226 of the Constitution against his dismissal from service. This petition was dismissed on 11-9-1957 by a Judge of the Calcutta High Court, an appeal filed by the petitioner was also dismissed by a Division Bench of the Calcutta High Court. The matter came up in appeal before the Supreme Court under Article 133(1)(c) of the Constitution1. A number of disputed questions of facts were involved in the matter. It was, for example, alleged by the petitioner that he was denied due opportunity to adduce evidence and to cross-examine witnesses in the departmental enquiry.

It was also alleged that the Dy. Commissioner of Police, who had passed the dismissal order, became a complainant in the case and there was a bias on the part of the dismissing authority and the order of dismissal was vitiated by male fides. Dealing with these disputed questions of facts, the Supreme Court observed that the questions whether there was bias, male fides or a due opportunity to be heard or to produce evidence given in the course of departmental proceedings were so largely questions of facts that it was difficult to decide them merely on conflicting assertions made by affidavits given by the two sides.

1. 48 SCJ No.11, p.632 (Supreme Court Journal, dt. 1-6-1973.)

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