TMI Blog1972 (7) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... llant 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, 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 s 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 Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned 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 01 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 sense 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. 3. On appeal from the decision of the learned Single Judge, a Division Bench of the Calcutta High Court d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 info consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 large ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Single Judge and the Division Bench on good and reasonable grounds. 9. Rabindra Nath Base and Ors v. Union of India and Ors [1970] 2 SCR 697 , 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. 10. If this is the position with regard to the petitions under Article 32 of the Constitution, we do not t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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