RAGHAVA MENON Vs. INSPECTOR GENERAL OF POLICEKERALA

JUDGEMENT

(1.) The appellants writ petition under Art.226 has been rejected by a learned Judge of this Court. He had entered the police service in 1941, and was serving till 1953. In that year a complaint about the appellants having contravened the Police Standing Order No. 134, due to misbehaviour under the influence of drink, was investigated by the Circle Inspector; and the Superintendent of Police, on the report furnished by the investigating officer, dismissed the appellant. The order was made on January 15, 1954, and the appellant submitted against the order several representations to the higher authorities. On May 18, 1958, the Inspector General of Police cancelled the dismissal order placing the appellant under suspension with effect from the date of the removal from service. The Inspector General of Police has, in the same order, come to the conclusion about the earlier order being without jurisdiction, and had proposed the appellant being dismissed from the date of his removal from service. The Inspector General his, therefore, directed the appellant to show cause, within 15 days of the receipt of the order, why the proposed punishment should not be inflicted. For purposes of making the representation, a copy of the minutes drawn up against the appellant was also furnished. On June 18, 1958, the appellant filed along explanatory statement, and on September 10, 1958, the Inspector General of Police, after being satisfied about the charge of being drunken and misbehaviour being proved beyond doubt, dismissed the appellant from the date he had been placed under suspension. Immediately the appellant filed the writ petition in this court, complaining the suspension and dismissal with retrospective effect to be illegal, and the decision by the Inspector General of Police not to be after proper judicial enquiry in so far as the Inspector General had not recorded the evidence, on which the appellant has been dismissed. The learned Judge has dismissed the writ petition on the short ground of the appellants having the alternative relief of appeal against the conclusions of the Inspector General of Police to the Government, and the case, therefore, not being one, in which the relief under Art.226 should be given.

(2.) The appellants learned advocate has pressed the appeal before us further on the ground that the order of the Inspector General was without jurisdiction, because it was made to operate retrospectively; and secondly, because it rested on material not personally recorded by the Inspector General. He has urged that where absence of jurisdiction be clear, the refusal to exercise power under Art.226, would be incorrect. In support of this last contention, reliance has been placed on U.P. State v. Mohammad Nooh, AIR 1958 S.C. 86, where it has been held that, should the illegality touching jurisdiction or procedure committed by an inferior court or tribunal, be so patent and loudly obstrusive as to leave on the decision an indelible stamp of infirmity or vice, that cannot be obliterated or cured on appeal or revision, the superior Court would properly exercise the power to issue a writ of certiorari. The appellants learned Advocate has further urged that the Superintendent or Assistant Superintendent alone, can under the rules governing the Police force, inquire into complaints against the constables; and as the inquiry had been by a subordinate officer, the dismissing authority could not act on the records so prepared, that the dismissal would be on material got contrary to the aforesaid direction and this would vitiate the dismissal order. In support of this contention, he has relied on Amulya Kumar v. L.M. Bakshi, AIR 1958 Cal. 470 , where the learned Judge has held that decisions in administrative matters, which be based on evidence recorded by persons other than inquiring authorities, would constitute error of jurisdiction. He has further relied on Gullapalli Nageshwara Rao v. Andhra Pradesh State, AIR 1959 S.C. 308, where the majority of the learned Judges have held that even administrative tribunals, when dealing with rights of a party, must hear, and that, if one person were to hear and another pass orders, the procedure would be contrary to the basic principles of judicial proceedings. He has further referred to Morgan v. United States, 298 U. S.468, where it has been observed that the hearing is designed to afford the safeguard of the deciding authority being bound in good conscience to consider the evidence, to be guided by that and to reach the conclusion uninfluenced by extraneous considerations. He particularly relies on the observation of Chief Justice Hughes that the one who desides must hear. We do not think the observation of our Supreme Court in Gullapalli Nageswara Raos Case, AIR 1959 SC 308 , lays down the rule that the evidence should have been taken by the officer, who makes the final decision; for, in Pradyat Kumar Bose v. C. J. of Calcutta, AIR 1956 S. C. 285, the argument was rejected, and the observation of Lord Haldane in the Local Government Board v. Arlidge, 1915 A. C. 120 at p. 133, has been described as instructive. That observation we would extract here:-

(3.) We do not think the Supreme Court in the later case meant to overrule what has been decided in the earlier, and by use of the word hearing in the later case their Lordships were sustaining the principle that the deciding authority must himself consciously and satisfactorily deal with the records, on which the order is being passed; nor do we think the principle of the one who decides must hear has been treated even in America as insisting on record of evidence being made by the authority, who decides; for, in Pettiford v. State Board of Education, 62 S.E. 780 at p. 790 (S.C. 1950) it has been observed:-