STATE OF WEST BENGAL Vs. NARENDRA NARAYAN DAS

JUDGEMENT

(1.) Narendra Narayan Das joined as a constable in the Calcutta Police Force in a temporary capacity on or about 9th May, 1940. Three years later he became permanent. He became an active member of the Calcutta Police Association which was alleged to have been formed by the Policemen to look after the needs of all ranks of the Calcutta Police. In course of time said Narendra Narayan Das became the Joint Secretary of the said Association in the year 1954-55. When he was the Joint Secretary of the said Association on or about 10th of December, 1954 the police force went on hunger strike on certain alleged demands. Narendra Narayan Das as the joint secretary took an active part in the same. It is alleged by Narendra Narayan Das that he incurred the displeasure of the authorities concerned thereby. He was dismissed from service by virtue of Article 311 (2) (c) of the Constitution. Thereafter, on 8th of February, 1955 Narendra Narayan Das was served with an order of externment from Calcutta under clause (a) of sub-section (1) of section 21 of the West Bengal Security Act, 1950. He moved an application under Article 226 of the Constitution which was ultimately withdrawn on the 11th of July, 1955 and the rule nisi was discharged. In 1967 the United Front Ministry came to power in West Bengal. Narendra Narayan Das preferred a memorial against his order of dismissal. It is alleged that he was assured that his case would be considered sympathetically by the government. Thereafter, the Governor of West Bengal dismissed the said ministry and it was followed by another ministry known as P.D.F. Ministry. Thereupon, on the 23rd of December, 1967 Narayan Das was detained under Preventive Detention Act, 1950. It was alleged in the grounds for the said detention that he had distributed highly inciting Bengali leaflet captioned "Police O Shasastra Bahinir Prati Abedan" to different policemen in Calcutta urging them to refrain from taking action against the members and supporters of United Front and thereby inciting them to rise against the Ministry and had also cited the examples of Naval Mutiny of 1949 with a view to tamper with the loyalty of the Police force. Ultimately, the matter came up before the Advisory Board and Narendra Narayan Das was released by the Government because it was stated that there was no ground for detention. In 1969 after the election the United Front Ministry came to power in West Bengal. Thereafter, by an order dated 15th of September, 1969 Narendra Narayan Das was reinstated in the Calcutta Police Force with immediate effect. On 31st of October, 1970, he was dismissed by the Governor on the ground that he was unsuitable for retention in service and it was further stated that the Governor was satisfied that in the interest of the security of the State it was not expedient to hold an enquiry into the charges against him under sub-clause (c) of the proviso to clause (2) of Article 311 of the Constitution. Narendra Narayan Das moved an application under Article 226 of the Constitution challenging the said order of dismissal and on 27th of November, 1976 a rule nisi was issued and certain interim orders were passed. The rule ultimately came up for hearing before Amiya Kumar Mookerji, J. and by an order passed and judgment delivered on the 3rd of May, 1976 the learned Judge has made the rule absolute in view of his judgment dated 30th of April, 1976 in (1) C.R. No.2329-31 (W) of 1971 (Gouranga Karmakar v. State of West Bengal) and the order of dismissal passed by the Governor was set aside. This appeal arises from the said judgment and order of Amiya Kumar Mookerji, J. dated 3rd of May, 1976.

(2.) When the appeal came up for hearing on the 10th of November, 1976 learned Advocate General, who was then the learned Standing Counsel for the State, submitted before us that he should be allowed to place the records upon which the impugned order was passed. It was urged before us that the facts of the instant case were different from the facts in the case of Gouranga Karmakar referred to in the decision of the learned trial Judge. It was, further, urged that in the case of Gouranga Karmakar the learned Judge had proceeded on the basis that the Inspector General of Police had stated that it was not in the public interest to hold the enquiry. The learned Judge was of the view that public interest was different from the requirement of sub-clause (c) of proviso to Article 311(2) of the Constitution. Furthermore, it was urged that the actual grounds referred to in the records in the case of Gouranga Karmakar were different from the grounds in the instant case. We gave the learned Standing Counsel leave to file supplementary affidavit on the 10th of November, 1976 annexing the copies of the records he intended to rely. But inasmuch as the delayed consideration of the materials by the Court was due to the failure on the part of the government to produce relevant records at the proper time we were of the opinion that in the interest of justice the respondent Narendra Narayan Das should be entitled to the benefit that the respondent had received and was receiving under the orders of the Court irrespective of the result of the appeal. We ordered accordingly. We also gave leave to the respondent to file supplementary counter-affidavit dealing with the allegations made by the State in this case. Before we deal with the merits of the contentions urged in this appeal we have to note that learned Advocate on behalf of the respondent has urged that we should not permit the appellant to rely on the additional materials sought to be placed by the supplementary affidavit. Learned Advocate submitted that the appellants took a chance and did not produce the relevant materials before the learned trial Judge and proceeded before the learned trial Judge on the basis that the facts of the instant case were similar to the facts in the case of Gouranga Karmakar. Furthermore, it was urged on behalf of the respondent that in the instant case the State had already filed an affidavit-in-opposition indicating the materials on which the impugned action had been taken. Therefore, it was submitted that there was no scope for permitting additional evidence at this stage. It was argued that no grounds had been made out for admission of additional evidence. In this connection reliance was placed on the observations of the Supreme Court in the case (2) Sundarlal and Son v. Bharat Handicrafts Pvt. Ltd., AIR 1968 SC page 406. We are, however, of the opinion that in the instant case such additional materials which have been sought to be placed before the Court by the supplementary affidavit pursuant to the leave granted on the 10th of November, 1976 should be allowed in evidence. It appears to us that the decision of the learned trial Judge proceeded without examination of the facts and circumstances of the case. This must have been due to the failure on the part of the State to bring the facts circumstances of the case to the notice of the learned Trial Judge. In the application under Article 226 of the Constitution the records were called for and the records of this case were not examined or placed before the learned trial Judge. The records of this case are relevant materials as are apparent from the facts of the instant case. From the records produced as it appears that in the instant case the Governor did not proceed as it appears that in the instant case the Governor did not proceed on the basis of public interest. The Supreme Court in the case of (3) K. Venkatramiah v. Seethurama Reddy, AIR 1963 SC page 1526 observed that under Rule 27(1) of Order 41 of the Code of Civil Procedure the appellate court had the power to allow additional evidence not only if it required such evidence to enable it to pronounce judgment, but also for any other substantial cause. There might well be cases where even though the Court found it possible to pronounce judgment on the state of record as it was and so it could not be strictly said that it required additional evidence to enable it to pronounce judgment, it still considered that in the interest of justice something which remained obscure should be filled up so that it could pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for other substantial cause under rule 27(1)(b) of Order 41 of the Code of Civil Procedure. Such requirement of the Court is not likely to arise unless some inherent lacuna or defect becomes apparent by an examination of the evidence. It may well be that the defect may be pointed out by a party or that a party may move the Court to cure the defect but the requirement must be of the Court upon its appreciation of the evidence as it stands. In the instant case the main challenge is to the order of the Governor holding that it was not expedient in the interest of the security of the State to hold an enquiry as contemplated by Clause (2) of Article 311 of the Constitution. It is, therefore necessary in order to satisfactorily examine this contention to consider the materials upon which the Governor had acted. For the aforesaid reasons, we are of the opinion, that such additional materials should admitted in evidence, in the fact and circumstances of this case.

(3.) On behalf of the respondent it was contended that the impugned order in question was bad because in order to be a valid order under sub-clause (c) of the proviso to clause (2) of the Article 311 of the Constitution the Governor was required to act on the advice of the Council of Ministers. Reliance in this connection was placed on the observations of the Supreme Court in the case of (4) Shamsher Singh v. State of Punjab, AIR 1974 SC page 2192 and reliance was placed on the observations of the Court at page 2198, paragraph 30 of the report. It was, further, urged that as the Governor was acting as the delegate of the President in view of the proclamation issued under Article 356 of the Constitution the Governor was obliged to act, in exercise of his power under sub-clause (c) of the proviso to clause (2) of the Article 311 of the Constitution, on the advice of the Central Council of Ministers. It was, therefore, urged that the action of the Governor was invalid in the instant case. We are, however, unable to accept this contention on three grounds. Firstly, it has not been alleged as a matter of fact that no advice was sought for or obtained from the Central Council of Ministers by the Governor who was acting in the instant case. Therefore, the factual basis for urging this contention is not there in this case. Secondly, it appears that in the case of (5) Mrinal Kanti Das Burman v. State of West Bengal and Ors., 1976(1) Calcutta Law Journal Page 571 it has been held that the Governor of West Bengal was competent to arrive at the satisfaction where in the interest of the security of the State it was not expedient to hold any enquiry under Article 311 (2) of the Constitution. It is true that this argument was not considered and was not urged in the case of Mrinal Kanti Das Burman v. State of West Bengal (supra) but the binding effect of a decision depend upon whether a particular argument was considered therein or not provided the point with reference to which an argument was subsequently advanced was actually decided. See the decision of the Supreme Court in the case of (6) Sonawanti v. State of Punjab, AIR 1963 SC page 151 at page 160, paragraph 22 of the report. Thirdly, we are unable to accept the contention on merits. As have been noticed before the impugned order was passed on 31st of October, 1970. On the 19th of March, 1970 the President of India in exercise of the power conferred by Article 356 of the Constitution had issued a proclamation stating that he was satisfied that a situation had arisen in the State of West Bengal in which the Government of the State could not be carried on in accordance with the provisions of the Constitution of India. By virtue of that proclamation the President had assumed to himself as the President of India all the function of the Government of the State and all powers vested in or exercisable by the Governor of the State. The President had also made certain incidental and consequential provisions for giving effect to the proclamation. The President had on the same date issued another order directing that all the functions of the Government of the State of West Bengal and all the powers vested in or exercisable by the Governor of that State under the Constitution or under any law in force in the State would subject to the superintendence, direction and control of the President of India be exercisable also by the Governor of that State. In issuing the Proclamation under Article 356 of the Constitution and in making incidental and consequential provision and in delegating the functions the President acts on the advice of the Central Council of Ministers. This position is well established by the decision of the Supreme Court in the case of (4) Samser Singh v. State of Punjab, AIR 1974 SC page 2192. Therefore when the President under Article 356 of the Constitution assumed to himself all the functions of the Government of the State and all the powers exercisable by the Governor of the State and thereafter delegated those functions and power to the Governor the President was acting on the advice of the Council of Ministers. Therefore, the Governor in discharging his functions under sub-clause (c) of the Proviso to clause (2) of Article 311 on the advice of the Council of Ministers. Actions taken by the Governor further were subject to the superintendence, direction and control of the President and such superintendence direction and control by the President had to be on the advice of the Council of Ministers. In such circumstance there was, in our opinion, no further scope for the Governor, in exercising his functions under sub-clause (c) of the proviso to clause (2) of Article 311 of the Constitution to obtain the advice of the Council of Ministers. In the aforesaid view of the matter we must reject the contention that the impugned order passed by the Governor was bad because he had not obtained the advice of the Council of Ministers.