BROJO GOPAL SARKAR Vs. COMMISSIONER OF POLICE

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution of. India for a writ in the nature of Certiorari for quashing of an order of discharge dated 30-7-1952 passed by the Deputy Commissioner of Police, Calcutta, and an order dated 18-8-1952 passed by the Commissioner of Police, Calcutta. On 31-3-1950 the petitioner was appointed a Special Constable of the Calcutta police by the Commissioner of Police, Calcutta under Section 12, Suburban Police Act, 1860 and he was vested with the powers, functions and privileges of a Police officer. Thereafter he was made a section Leader of South Group (I), Alipore Section Special Constabulary with effect from 7-10-1950. It appears that shortly after the appointment of the petitioner as a Special Constable a representation was made by some people of the locality on 19-5-1950 characterising the petitioner as an anti-social element and praying for an enquiry against him. But subsequently on 27-5-1950 a letter was Written to the Deputy Commissioner of Police by several other members of the locality recommending the petitioner to be a popular and influential man of the locality. No action was however taken upon the representations by the Police Authorities. It is alleged that towards the second week of June 1952 the petitioner was sent for by the Deputy Commandant of the Calcutta Special Constabulary and the petitioner was asked to tender his resignation on the ground that some representation had been received against the petitioner from certain persons of the locality. The petitioner however did not tender his resignation. On or about 30-7-1952 the petitioner received an order made by the Deputy Commissioner of Police, Calcutta, discharging the petitioner from the Calcutta Police Constabulary with effect from date, on the ground that he was not likely to become an efficient member pf the Force. A copy of this order is annexed to the, petition and marked B. On 5-8-1952 the petitioner sent a representation to the Commissioner of Police, Calcutta praying for an opportunity to show cause against the action taken against him and for reconsideration of the order of discharge. It was further pointed out in this representation that in making the order of discharge the principles of natural justice had been violated. The said representation was however rejected by the Commissioner of Police by his order dated 18-8-1952. A copy of this order is annexed to the petition and marked D.

(2.) The petitioner challenges the validity of the order of discharge dated 30-7-1952 on the ground that it contravenes the provisions of Article 311, Clauses (1) and (2) of the Constitution. Mr. Anil Kumar Das Gupta the learned Advocate for the petitioner has submitted that the order of discharge is an illegal order as it was made by an authority subordinate to that by which the petitioner was appointed and inasmuch as the said order was passed without giving the petitioner a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. According to Mr. Das Gupta the petitioner while holding the office of a Special Constable was holding a Civil post under the State of West Bengal within the meaning of Article 311 of the Constitution and consequently the petitioner is entitled to the benefit or protection afforded by Article 331, Clauses (1) and (2) of the Constitution.

(3.) Mr. Smriti Kumar Roy Choudhuri the learned Advocate for the respondents has on the other hand submitted that Article 311 has no application to the case of the petitioner. It is pointed out by Mr. Hoy Choudhuri with reference to the counter-affidavit affirmed by the Deputy Commissioner of Police, that the Calcutta Police Special Constabulary is purely a voluntary, non-communal and non-political organisation which has been formed with the object of checking rowdyism and lawless activities by assisting the regular Calcutta Police Force in the maintenance of law and order in the city and its suburbs, and the members do not receive any remuneration whatsoever from the Police Administration, and they are required to purchase their uniforms at their own costs, as the organization is a voluntary one. Consequently the petitioner cannot be regarded as a person who is a member of a civil service of the State of West Bengal or as holding a civil post under the State of West Bengal.