Sinha, J.@mdashThe facts in this case are briefly as follows:
The Petitioner, Kamini Kumar Das Choudhury, was appointed as a Probationary Sub-Inspector of Police, Bengal, with effect from January 2, 1945, by the Principal, Police Training College, Sardah (Rajshahi,), Bengal, who is of the rank of a Superintendent of Police. By D.O. No. 2607, dated September 16, 1947, he was temporarily transferred to the Calcutta Police (vide West Bengal Police Gazette, dated October 3, 1947).
2. On or about February 6, 1951, the Government of West Bengal transferred the services of the Petitioner temporarily to the Calcutta Police. This appears- from a memorandum, dated February 6, 1951, issued by the Government of West Bengal in its Home (Police) Department, No. 467/PL/P5P-6/49, dated February 6, 1951, a copy whereof is annexed to the further affidavit affirmed by Mr. Satyendra Nath Mukherjee, dated July 5, 1957. On or about April 18, 1951 the Petitioner was posted to the Enforcement Branch of the Calcutta Police.
3. On May 20, 1951, under orders made by Respondent No. 3, there was a search at the house of one Hari Pada, situated in the Kankurgachi bustee. There was also a general search in the locality. The Petitioner was ordered to take part in the house search and a general order was passed by Respondent No. 3 that no one should depart from the place of search till the arrival of the Deputy Commissioner or the Assistant Commissioner. In violation of the said order, the Petitioner left the place and was found loitering in the vicinity. His case is that he was fatigued and went to have a cup of tea. Mr. Satyendra Nath Mukherjee, the Deputy Commissioner of Police, Enforcement Branch, who detected the Petitioner loitering on the side of a tank, definitely swears that there was no tea shop in the vicinity where he was found loitering (para. 11(6), counter-affidavit).
4. On May 20, 1951, the Petitioner was placed under suspension. On May 21, 1951, he was served with a charge sheet. The charges are as follows:
(7) You are charged with an act of indiscipline by disobeying the orders of Deputy Commissioner, Enforcement, by absenting yourself on May 20, 1951, from 13/2 Sir Gurudas Road, where you were deputed to assist Sub-Inspector Sitanath Bose to conduct a house search and were found at about 9 a.m. in a bustee near a tank in Upen Banerjee Road about a furlong away from the place of search when you were looked for by- Deputy Commissioner, Enforcement Branch.
(2) You are further charged with for being disloyal to the State of West Bengal by disclosing the purpose of Police searches in Kakurgachi area on May 20, 1951 and thereby forewarning and enabling the people concerned in the criminal activity there to destroy materials for search. (3) You are further charged with making perfunctory search and not collecting other information at the place of search which you are ordered by Deputy Commissioner, Enforcement, to do.
5. The Petitioner was asked to show cause why he should not be dismissed from the Police force or otherwise severely dealt with.
6. There was a departmental enquiry held by Mr. A. Rahman, Assistant Commissioner of Police, Enforcement Branch, who, by his report, dated July 19, 1951, found the Petitioner guilty of the first two charges and exonerated him from the third charge. The enquiring officer recommended that the Petitioner should be dismissed from the Police force forthwith.
7. On July 19, 1951, the Deputy Commissioner, Enforcement Branch, Respondent No. 3, issued a notice upon the Petitioner, directing him to show cause why he should not be dismissed from service. On July 30, 1951, the Petitioner was given a personal hearing. On August 1, 1951, an order was made by the Deputy Commissioner, Enforcement Branch, dismissing the Petitioner from service.
8. On August 31, 1951, the Petitioner preferred an appeal to the Inspector-General of Police, West Bengal, through the Commissioner of Police, Calcutta. The Commissioner of Police felt himself competent to deal with the appeal and on October 27, 1951, rejected the same. The Petitioner admits that he was informed about this on November 2, 1951.
9. This Rule was issued on September 10, 1953 upon the Respondents to show cause why a writ in the nature of mandamus should not be issued directing them to forbear from giving effect to the order of dismissal and for other reliefs.
10. The main points taken by the Petitioner are two. The first is that he was, and always continued to be, a member of the West Bengal Police force and was never a member of the Calcutta Police. Hence, be could not be charged with an offence and dismissed by a Deputy Commissioner of the Calcutta Police. Secondly, it is urged that the Deputy Commissioner of Police, Enforcement Branch, was an authority lower in rank than the authority appointing the Petitioner and consequently there was a violation of Article 311(7) of the Constitution. Some other minor points have been raised, which I shall presently consider.
11. Two preliminary points have been raised, which I think are sufficient to dispose of this application. The first point is that there has been a delay in making this application and the Petitioner is not entitled to relief under this jurisdiction. The answer to the charge of delay given by the Petitioner is that on October 7, 1951 shortly after the order of dismissal, the house of the Petitioner was searched and he was arrested and proceedings were initiated against him under Sections 1(2) and 7(5) of the Essential Supplies Act and Section 124A of Indian penal Code, before the Police Magistrate, Sealdah. The Petitioner was released on bail after a week and on June 3, 1952, he was discharged by the learned Magistrate, for lack of evidence. He says that thereafter he fled to the Andaman islands as he was afraid of being arrested under the Preventive Detention Act, from where he returned in July, 1953. While it may be possible to excuse the delay, while proceedings were actually pending against him before the Police Magistrate, it is impossible to excuse the delay that took place afterwards. If the Petitioner was innocent, he had no reason to flee from an alleged persecution. This is a story which is indeed difficult to swallow. In
12. The second preliminary point is that the Petitioner failed to take the point of jurisdiction, as now propounded, at any stage of the enquiry or in his appeal. If he did not take this point in course of the proceedings, he cannot plainly be permitted to take it here for the first time. Looking into the petition of appeal, I find that the Petitioner did allege that he had been enrolled u/s 7 of Act v. of 1861 and not under the Calcutta Police Act, 1866, so that he could only be dealt with under Disciplinary Regulation, 1861, applicable to members of the subordinate rank of the Bengal Police. But his grievance was that it was mandatory "on the Superintendent or a Deputy Commissioner of Police, in the present case" to draw up these proceedings himself. His grievance was that an Assistant Commissioner of Police could not take part in proceedings for serious misconduct which might end in dismissal or reduction in rank, so an Assistant Commissioner of Police could not hold an enquiry as was done in this case. It is this point that he had also pressed at the time of showing cause against the proposed punishment. This will appear from the order of Respondent No. 3, dated August 1, 1951, where he says:
The contention of the delinquent Sub-Inspector that an Assistant Commissioner of Police cannot deal with proceedings is not correct (vide Calcutta Police Gazette para. No. 227 8 (3), dated July 16, 1951).
13. It is thus clear that the Petitioner never took the point that he continued to be a member of the West Bengal Police force and the Deputy Commissioner of Police, Enforcement Branch, Calcutta, could not dismiss him. On the contrary, he alleged that the Deputy Commissioner should himself have drawn up the proceedings and heard the matter. It is now too late to raise the point that the Deputy Commissioner of Police had no authority over the Petitioner at all.
14. Although these two preliminary points are sufficient to dispose of the matter, I think that it would be better to deal with the points raised. Under the Police Act, 1861, Section 2 lays down that the entire Police establishment under a State Government shall for the purpose of that Act, be deemed to be one Police force and shall consist of such number of officers and men and shall be constituted in such manner as shall from time to time be ordere1 by the State Government.
15. The Calcutta Police Act of 1866 (Ben. Act IV of 1866) which regulates the Police system within the local limits of the town of Calcutta (as defined in the Act), contains no provision for employment of personnel belonging to other than the Calcutta Police force. Section 8, however, lays down that the Police force in Calcutta shall consist of such numbers of officers and shall be otherwise constituted in such manner as shall be from time to time ordered by the State Government.
16. The Police Act, 1888 (Act III of 1888), was passed to relax those provisions of Acts for the regulation of Police which restrict the employment of Police officers to the Presidency, State or place, or of the Police establishment of which they are members.
17. This Act, however, was concerned with the participation of the Police of one State or Province, in another State or Province. The Bengal Police Act, 1869 (Bengal Act VIII of 1869), recited in the preamble that It is expedient that the entire Police Establishment in the Provinces under the control of the Lieutenant Governor of Bengal should cease to be one Police fores and that the said Provinces should cease to be one general Police district
18. Section 5 of the Act runs as follows:
It shall be lawful for the Provincial Government to employ members of the Police force who have been enrolled in, or appointed to, any one general Police district in any other general Police district, within the Provinces subject to his control
19. On December 26, 1951, was promulgated the "West Bengal Police (Temporary Powers) Ordinance, 1951. This was replaced by the West Bengal Police Act (III of 1952), paragraph 3 where of runs as follows:
It shall be lawful for the State Government to employ members of the Police force of Calcutta or the suburbs of Calcutta in any general Police district and members of any general Police district in Calcutta or the suburbs of Calcutta, and while so employed every such member of a Police Force shall be deemed to be a member of the Police force of the area in which he is so employed and to be vested with the powers, functions and privileges and to be subject to liabilities of a member of the Police force of that area.
20. It is therefore clear that from December 26, 1951, the position of a member of the West Bengal Police force temporarily transferred or lent to the Calcutta Police, is quite clear. But was it any different before It is argued that since it was found necessary to promulgate the Ordinance and pass the Act, it must be presumed that the previous position was different. In my opinion that is not so. As I have pointed out above, the Bengal Police Act, 1869, contains provisions relating to the employment of the Police force of one Police district in another, but the Calcutta Police Act, 1866, contained no such provision. The only provision it contained was Section 8 whereby the State Government could constitute the Police force in the town of Calcutta in such manner as it liked. It follows, that while members of the West Bengal Police force could be transferred to Calcutta, the only way of utilising them would be to constitute them a part of the local force. In fact, this would be the most logical thing to do so, because in forces like the Military or the Police, there cannot be divided loyalties. Thus, while the Petitioner was in the Calcutta Police force, he must necessarily be subject to all the rules and regulations contained in the Calcutta Police Act and be subject to the same authority and discipline as any other member of the Calcutta Police force. He could not have been employed in any other way in the Calcutta Police force, since there existed no provision for it in the Calcutta Police Act, 1866. The Ordinance of 1951 and the West Bengal Act III of 1952, merely clarified the position, and now there exists no further doubt regarding the matter. What then is the position in the present case? The Petitioner was originally transferred from the West Bengal Police force by a D. O. order in 1947, but this was regularised by a Government order, dated February 6, 1951. By this order, he was "transferred" to the Calcutta Police force, although temporarily. By the transfer he became, for the time being, a full fledged member of the Calcutta Police force. As I have shown, he could become nothing else, since the Calcutta Police Act contained no provision for any other thing. If that is so he became subject to the same rules of conduct and discipline as any other member of the force, and I do not see why disciplinary measures should not have been taken against him in accordance with the rules prevailing under the Calcutta Police Act and why he should not have been dismissed from that force. Whether he thereby reverted back to his own status as a member of the West Bengal Police, is a question I am not called upon to decide in this case.
21. The next question raised is about the status of the dismissing authority. The appointing authority of the Petitioner was the Principal of the Police Training School, Sardah, who had the status of a Superintendent of Police. It is certainly a difficult task to equate between two classes of officers in two different forces, but the learned Standing Counsel seems to have accomplished this seemingly impossible task. He has drawn my attention to a notification No. 63/38-I-Ests. containing rules made by the Secretary of State for India called "The Reserved Posts (Indian Police) Rules, 1938". These rules contain a gradation of posts in the Police force all over India. So far as Bengal is concerned, both a Deputy Commissioner of Police, Calcutta, and Principal. Police Training College, are graded as (b) class officers, that is to say, they belong to the same grade. This disposes of the question of the status of the dismissing authority and there has been no violation of Article 311(1) of the Constitution.
22. Besides the above two grounds, a few minor points were raised. It was argued that Mr. Satyendra Nath Mukherjee, Deputy Commissioner, Enforcement Branch, had a bias against the Petitioner and the actions taken by him are a result of such bias. The reason suggested is that the Petitioner in course of performing his duties took steps against one Sankhulal Biswas, stated to be the next-door neighbour and intimate friend of the Deputy Commissioner, and this incurred his displeasure. This appears to me to be an entirely imaginary grievance. I have looked through the affidavits carefully and have come to the conclusion that the Petitioner has failed to make out any case against the Deputy Commissioner, Enforcement Branch, who has only discharged his public duties even if it turned out to be detrimental to the interests of the Petitioner. The other allegations by the Petitioner are also without foundation. For example, a point was raised by Mr. Dutt, appearing on behalf of the Petitioner, that the officers conducting the search were not produced. It appears however, that the Petitioner expressed his opinion that even if one officer was called, that would be enough for his purposes. In fact, three were called and examined at length. In my opinion, the conduct of the departmental enquiry could not be seriously challenged. Lastly, I say that a writ of mandamus is a discretionary writ. The charges proved against the Petitioner are of such kind that even if the Petitioner succeeded in showing a technical flaw, I would have refused to interfere. In my opinion, justice has been done, and calls for no further interference.
23. For the reasons aforesaid this application must be dismissed. The Rule is discharged interim order, if any, vacated. There, will be no order as to costs.
