SHIB NATH MONDAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an appeal against an order of A.C. Sen, J. dated the 2nd December, 1965. The facts are briefly as follows: The appellant Shib Nath Mondal was appointed to the post of a Patrol Leader by an order made by the Regional Controller of Procurement, Region III, Calcutta dated the 8th January, 1952. The relevant part of the order is as follows: ORDER

(2.) Under the said order, he was liable to be posted to any place in West Bengal. On the 29th of June, 1956 notice was served on the appellant terminating his services as a Patrol Leader upon the expiry of one month from the date on which the notice was served upon him. It was served on the same date. A copy of this order passed by the Special Officer (ex-officio) Assistant Secretary to the Government of West Bengal is set out below:

(3.) The argument advanced is, therefore, as follows: It is urged that a police officer cannot be appointed except by a certificate in the prescribed form. As the appellant was not appointed by such a certificate, he never became a police officer at all and therefore no departmental proceeding could be taken against him. This position has been examined by the learned Judge in the Court below and rejected. We agree with this view. Section 8 merely states that upon appointment, every officer other than an officer mentioned in Section 4, with which we are not concerned in this case, shall receive on his appointment a certificate in the prescribed form. Therefore, it is clear that the appointment itself is not made by the certificate, but that a certificate vests the police officer with powers, functions and privileges of a police officer. In the present case, even if the district order mentioned above is not in the prescribed form, it does not mean that the appellant was not appointed as a police officer. It may be that the absence of a proper certificate may affect the validity of his actions done as a police officer. We are not. however, concerned in this case with any such situation. Upon a consideration of all the materials placed before us, there can be no doubt whatsoever that the appellant was a police officer at the relevant time. At first, he entered service as a Patrol Leader under the Regional Controller of Procurement. According to the very terms of his appointment, it was purely a temporary service liable to termination at any time without notice and without any reason being assigned. Nevertheless, notice of one month was served on the 29th of June, 1956. Even before the notice period expired, he was released with effect from 25th July 1956 and directed to report to the Superintendent of Police of Nadia. In the meantime what had happened was that the entire cordoning staff consisting of 740 persons belonging to the Food, Relief and Supplies Department of the Government of West Bengal was taken over as temporary employees of the Police Department in corresponding ranks. The fact that the appellant's service was temporary and that he was served with notice and released a few days before the notice period expired and his corresponding appointment as a Sub-Inspector of Police, clearly shows that his service as a Patrol Leader in the Department of Food, Relief and Supplies had been terminated and he became a police officer in the rank of a Sub Inspector. Not only does it appear that this is so, but it is also clear that the appellant accepted this position, because he left the Food, Relief and Supplies Department and joined the Police Department and began acting as a Sub Inspector. The new p osts that were created by the memorandum ated 29th June, 1956 were paid out of the State Police Budget and indeed it is not disputed that during all these years the appellant acted as Sub Inspector and had drawn his pay from out of the Police Budget. In fact, even now he is drawing subsistence allowance as a Sub Inspector of Police who has been suspended pending departmental proceedings. Under the circumstances, it is impossible for him to establish that he still belongs to the Department of Food, Relief and Supplies. In the affidavit-in-reply for the first time, he has referred to certain documents showing that while acting as a Sub Inspector at Nadia he had applied for leave from the Food Directorate. It is impossible to take notice of such facts stated for the first time in the affidavit-in-reply. It is obvious that the appellant was closely connected with the cordoning system, although he had joined the police department. The posts were created specially for that purpose. There might have been all kinds of inter-departmental arrangements for the forwarding of leave applications, etc. Such controversial matters raised for the first time in the affidavit-in-reply cannot be taken notice of. Mr. Dutt has also taken the point that the district registers, which had been disclosed, were not in accordance with Regulation 911 so that the D. O. entry was not in order. Again, we are not concerned with these facts. As I said, there may have been irregularities committed by the department. We are only concerned with the question as to whether the appellant belongs to the Food Department or the Police Department. Defects in the district registers or the certificates issued do not affect that question.