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TMI Blog1957 (9) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... on. The judgment of the High Court also directed that, if it were desired to proceed against the respondent, the trial should be presided over by a person other than the District Superintendent of Police who gave evidence in the case and also passed the order of dismissal against the respondent and that it should be in strict conformity with the relevant Police Regulations. The respondent was a constable in the Uttar Pradesh Police Force and was, at the material time, officiating as a Head Constable and posted in the District of Fatenpur. In December, 1947, sixty candidates had to be selected from the Police Force for training at tile Police Training College, Moradabad. The respondent was sent up for selection from the District of Fatehpur. He, however, failed in the Hindi test and was not selected and sixty other candidates were selected for the training. On December 8, 1947 a letter, purporting to have been issued from Lucknow, was received in the U. P. Police Head Office at Allahabad intimating that the respondent had been selected for training at the Police Training College. As there were only sixty vacancies and as sixty candidates had already been selected, the Head Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been passed at a time when the Constitution of India had not come into force, but the High Court rejected that plea as it took the view that the order of dismissal passed by the District Superintendent of Police on December 20, 1948, and the order of dismissal of the appeal passed by the Deputy Inspector General of Police on June 7,1949, had not become final until the Inspector General of Police, on April 22, 1950, made his order dismissing the revision application filed by the respondent under Reg. 512 and that as the last mentioned order had been passed after the Constitution had come into force, and had, by Art. 226, vested powers in the High Court to issue prerogative writs, the High Court had ample jurisdiction to exercise its newly acquired powers under that article. On the merits the High Court came to the conclusion that the rules of natural justice and fair-play had been disregarded, in that the District Superintendent of Police had continued to preside over the trial even after it had become necessary for him to put on the record his own testimony as against that of another witness and it held that the presiding officer had, in the circumstances, become disqualified, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25th October, 1948, which was recorded by another Deputy Superintendent of Police after the charge. One Head Constable, Mohammad Khalil, who was prosecution witness in the case, when cross-examined denied to have said that the applicant and Shariful Hasan were on friendly terms. He turned hostile and it became necessary for the deponent to depose about certain facts which had happened in his presence and which belied the testimony of Mohammad Khalil - " The salient facts being thus admitted there can be no escape from the conclusion that Shri B. N. Bhalla should not have presided over the trial any longer. The point in issue was whether Shariful Hasan was in friendly relationship with the respondent. Mohammad Khalil had in his evidence at the trial denied having made any statement to this effect. Shri B. N. Bhalla gave evidence that Mohammad Khalil had in his presence admitted this friendship of Shariful Hasan with the respondent. Which of the two witnesses, Mohammad Khalil and Shri B. N. Bhalla, was to be believed was the duty of the person presiding over the trial to determine. Shri B. N. Bhalla was obviously most ill suited to undertake that task. Having pitted his evidence a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or an appeal from the decision of the officer holding the trial. Likewise Reg. 512 confers on an officer whose appeal has been rejected to submit an application for revision to the authority next in rank above that by which his appeal has been rejected. The argument is that the Police Act and the Regulations made thereunder having provided for an appeal and a revision and having set up special forums with full powers and jurisdiction to correct the error, irregularity or illegality touching jurisdiction, procedure and the merits committed by the officer presiding over the trial, such forums alone are competent to correct all such errors, irregularities and illegalities. In this case admittedly the respondent preferred an appeal and then went up to the Inspector General of Police in revision. In the appeal and in the revision the respondent either took the plea of the breach of the rules of natural justice and fair-play now complained of or he did not. The respondent knew the material facts and must be deemed to have been conscious of his legal rights in the matter and, therefore, if he failed to raise the objection before the officer who was dealing with his appeal or revision he c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f jurisdiction, and our attention has not been drawn to any authority in which mere non-compliance with the rules of procedure has been made a ground for granting one of the writs prayed for. In either case, the defect, if any, can according to the procedure established by law be corrected only by a court of appeal or revision. Here the appellate court which was competent to deal with the matter has pronounced its judgment against the petitioners, and the matter having been finally decided is not one to be reopened in a proceeding under article 32 of the Constitution." As regards the prayers for writs of certiorari and prohibition it was held that the writs of certiorari and prohibition were hardly appropriate remedies in that case, because they were usually directed to an inferior court, but at the date when the High Court dealt with those cases and confirmed the convictions and sentences of the petitioners, this Court was not in existence, and at that point of time, by no stretch of reasoning, the High Court could be said to have been subordinate to this court. Then this Court went on to consider the remaining question, namely, whether after the commencement of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure laid down for it and the appeal from its decision lay before the highest and final court of the State-a superior court of record. But orders made on departmental "trial" held by an officer in the department without any legal training and orders passed by his superior officers in the same department on appeal or in revision which, in the words of Harries C.J. in Assistant Collector of Customs v. Soorajmull Nagarmull ((1952) 56 C.W.N. 43, 46) were only in the nature of an appeal from Caesar to Caesar and which might not be regarded with any great confidence by persons brought before them can hardly be equated with reasonable propriety with the orders passed by the Special Tribunal and an appeal therefrom by the Hyderabad High Court with reference to which bodies alone the said observations had been made. In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. (Halsbury's Laws of England, 3rd Ed., V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication." Likewise in Khurshed Modi v. Rent Controller, Bombay (A.I.R. 1 Bom. 6.), it was held that the High Court would not refuse to issue a writ of certiorari merely because there was a right of appeal. It was recognized that ordinarily the High Court would require the petitioner to have recourse to his ordinary remedies, but if it found that there had been a breach of fundamental principles of justice, the High Court would certainly not hesitate to issue the writ of certiorari. To the same effect are the following observations of Harries C.J. in Assistant Collector of Customs v. Soorajmull Nagarmul ((1952) 6 C.W.N. 3) at page 470: " There can, I think, be no doubt that Court can refuse to issue a certiorari if the petitioner has other remedies equally convenient and effective. But it appears to me that there can be cases where the court can and should issue a certiorari even where such alternative remedies are available. Where a Court or Tribunal, which is called upon to exercise judicial or quasi-judicial functions discards all rules of natural justice and arrives at a decision contrary to all accepted principles of justice then it appears to me that the court can and mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal the court of Queen's Bench Division could not issue the writ of habeas corpus. This was repelled by the following observation of Hawkins J.: " This is true as a fact, but it puts the prosecution in no better position, for if the magistrate had no power to give himself jurisdiction by finding that there had been a first offence where there had been none, the justices could not give it to him." On the authorities referred to above it appears to us that there may conceivably be cases-and the instant case is in point-where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play the superior court may, we think, quite pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uperintendent of Police on April 20, 1948, and the order passed by the Deputy Inspector-General of Police on June 7, 1949, dismissing the appeal and confirming the order for the dismissal of the respondent, an application for a writ under Art. 226 would not lie in this High Court to set aside those orders as this was not one of the High Courts that had writ jurisdiction before the Constitution. It is, however, contended that the order of dismissal dated April 20, 1948, had merged in the order passed on appeal on June 7,1949, and that both the orders merged in the order passed by the Inspector-General of Police on April 22, 1950, on the revision application. It is said that the revisional jurisdiction is a part of the appellate jurisdiction and the principle on which a decree of the court of first instance in a civil suit merges in the decree on appeal applies with equal force to an order made on an application for revision and consequently both the orders passed by the District Superintendent of Police and that passed on appeal by the Deputy Inspector General of Police merged in the order passed on revision by the Inspector-General of Police on April 22, 1950. To put it shortly, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he termination of all proceedings by 'way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective. In that view of the matter the original order of dismissal passed on April 20, 1948, was not suspended by the presentation of appeal by the respondent nor was its operation interrupted when the Deputy Inspector-General of Police simply dismissed the appeal from that order or the Inspector General simply dismissed the application for revision. The original order of dismissal, if there were no inherent infirmities in it, was operative on its own strength and it did not gain any greater efficacy from the subsequent orders of dismissal of the appeal or the revision except for the specific purposes hereinbelow mentioned. That order of dismissal having been passed before the Constitution and rights having accrued to the appellant State and liabilities having attached to the respondent before the Constitution came into force, the subsequent conferment of jurisdiction and powers on the High Court can have no retrospective operation on such rights and liabilities. Even if the order of dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al remedies in a case of this kind are appeal and revision. It is true that on a matter of jurisdiction, or on a question that goes to the root of the case, the High Courts can entertain a petition at an earlier stage but they are not bound to do so and a petition would not be thrown out because the petitioner had done that which the Courts usually direct him to do, namely, to exhaust his normal remedies before invoking an extraordinary jurisdiction. Therefore, if this order of dismissal had been made after the Constitution, the petitioner would have been expected to pursue his remedies of appeal and revision first and could not have come to the High Court in the ordinary way until he had exhausted them; and having come at that stage he could not have been turned away unheard on the ground that he was out of time because his grievance was against the original order. The very decisions to which my Lord has referred establish that for these purposes, at any rate, the earlier orders would merge in the final one. But I am not basing on technicalities. What is plain to me is that if this order of dismissal had been made after the Constitution, the petitioner would have been entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of West Bengal([1955] 1 S.C.R. 224,237.), Habeeb Mohamed v. The State of Hyderabad([1953] S.C.R. 661) Syed Casim Razvi v. The State of Hyderabad ([1953] S.C.R. 589.) and Keshavan Madhava Menon v. The State of Bombay ([1951] 9.C.R. 228.). These cases are not exactly in point but the principle is there and it is that principle that I invoke here. On the merits I am clear that the appeal should be dismissed. In the first place, this Court, following the English decisions, has decided in Manak Lal v. Dr. Prem Chand Singhvi (A.I.R. 1957 S.C. 425, 429.) that the principles of natural justice must be observed not only by Courts proper but also by " all tribunals and bodies which are given jurisdiction to determine judicially the rights of parties"; and if they are not observed, the decision is vitiated. So that is now beyond controversy. Next, there can, I think, be no doubt that the District Superintendent of Police, who conducted the departmental trial and found the respondent guilty, acted in a judicial capacity. The Departmental Rules that require an enquiry in such cases call the 2,0.7 proceedings a trial and the procedure ,set out in them indicates the judicial nature of the enqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... almost on all fours with the present case. He said: "It could not possibly have been intended by this statute to authorise a practice which would, I think, be inconsistent with the proper administration of justice namely, that a licensing justice, one of the members of the compensation authority, should, on a given occasion, descend from the Bench, give his evidence on oath, and then return to his place upon the Bench to give a decision possibly based on his own evidence. " The matter is, as I said, covered by authority and I need say no more except that, even if it were not, I would have had no hesitation in reaching the same conclusion. Some question arose about waiver. If the respondent, knowing his rights, had acquiesced in the continuance of the trial despite this defect, then, of course, he would not have been allowed to complain at a later stage. I do not know whether he was represented by counsel in the enquiry or whether, if he was not, he was aware that this kind of action vitiated the proceedings; nor do I know whether he protested and took the point in the appeal and revision. Those papers have not been filed. But I do know that waiver is not raised in the grounds of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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