THE STATE OF UTTAR PRADESH v. MOHAMMAD NOOH
Citation: [1958] 1 S.C.R. 595; 1957 INSC 81
Court: Supreme Court of India
Bench: SUDHI RANJAN DAS , VIVIAN BOSE, T.L. VENKATARAMA AIYYAR, SYED JAFFER IMAM, A.K. SARKAR
Judgment date:
Case summary
1957 INSC 81. Supreme Court of India judgment dated 1957-09-30. THE STATE OF UTTAR PRADESH v. MOHAMMAD NOOH. Read the judgment and case details on LawSphereX.
Judgment text
S. C. R. SUPREME COURT REPORTS 595 THE STATE OF UTTAR PRADESH S•ptemh•r 30. u~ MOHAMMAD NOOH (S. R. DAS, c. J. , VENKATARAMA AYYAR, JAFER IMAM, A. K. SARKAR and VIVIAN BosE, JJ. ) Certiorari, writ of-Principles governing issue-Avail-ability of alternative remedy by appeal, if ~ bar-Departmental enquiry-Violat. ion of principles of natural justice -Presiding · officer himself a witness-Order of dismissal made previous to the Constitution-Revision disallowed after the Constitutio~uch order, if can be quashed- C0nstitution of India, Art. 226. A departmental enquiry against the respondent, a Head Constable, was held by the District Superintendent of Police. During the enquiry the District Superintendent of Police himself became a witness and gave evidence at two stages against the respondent, his statement being ·recorded by a Deputy Superindendent of Police.
The District Superintendent of Police then found the respondent guilty and on April 201 1948, passed an order of dismissal against him . The respondent went up in appeal to the Deputy Inspector General of Police but the appeal was dismissed on May 7, ·1949, The respondent then filed a revision applic:ltion to the Inspector General of Police which was also dismissed on April 22, 1950. Thereupon, the respondent filed a writ petition under Art. 226 of the Constitution before the High Court praying for the setting aside of the order of dismissal. The High Court held that the rules of natural justice and fair-play had been d. isregarded and accordingly, quashed the proceedings and set aside the three several orders. The State obtained a certificate of fitness and apj>ealed. Held, (per curiam) that the District Superintendent of :Police who had acted both as the judge and as a witness · had disqualified himself from presiding over the enquiry.
Tlle procedure adopted was contrary to the rules of natural justice and fair-play. Decisions and orders based on such procedure are invalid and not binding. There is no rule with regard to certiorari, as there is with . mandamus, that it will lie only where there is no other equally effective remedy. The existence of another adequate remedy may be taken into eonsideration in the exercise of the discretion. If an inferior Court or tribunal of first instance -acts without jurisdiction or in excess of it or contrary to the rules. of natural justice, the superior Court may quite properly issue a writ of certiorari to correct the error, even if an appeal to another inferior Court or tribunal was available, whether recourse was or ·was not had to it. This would be so all the more in the case of departmental tribunals composed of persons without adequate legal training and background. Janardan Reddy v. The State of Hyderabad, (1951) S. C. R. 344 refe. rred to. King v.
Postmaster-General, Exparte Carmichael (1928) I K. B. 291; Rex v. Wandsworths Justices, Exparte Read, (1942) I K. B. 281; Khurshed Modi v. Rent ControUer, Bombay, A. l. R. (1947) Born. 46; Assistant Collector of Customs v. Soorajmull Nagarmull, (1952) 56 C. W. N. 453 relied on.. Held, (per S. R. Das,. C. J. , Venkatarama Ayyar, Jafer Imam and Sarkar, J. · Bo! le J. , dessenting) that Art. 226 of the Constitution is not retrospective and the High Court could not exercise its powers under Art. 226 to quash the order of dismissal passed before the commencemtmt of the Constitution. It is wrong to say that the order of dismissal passed on April 20, 1948, merged in the order in the appeal dated May 7, 1949, and the two orders ·merged in the order in the revision dated April 22, 1950, or that the original order of dismissal became final only on the passing of the order in revision. The original order of dismissal was operative on its own strength. Per 8ose, J.
-The High Court had jurisdiction to quash all the orders, as the proceedings should be regarded as still pendi! lg till the order in revision was passed on April 22, 1950. Tile District Superintendent of Police was acting in a judicial capacity and was bound to observe principles of natural justice. These principles he ignored. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 130 of 1956. · Appeal from the judgement and decree. dated the 10th March, 1952, of the Allahabad High Court in Civil Writ No. 737 of 1951. G. C. Mathur and C. P. Lal, for the appellant. S. P. Sinlia and S. D. Sekhri, for the respondent. 1957. September 30. The judgment of Das C. J. , Venkatarama Ayyar, Jafer Imam and Sarkar JJ. was delivered by Das C. J. Bose J. delivered a separate judgment. DAS C. J. -This is an appeal filed under a certificate of fitness granted by the High Court of Judicature at Allahabad under Arts. 132(1) and 133 (1) (c) of the Constitution.
It is directed against the judgment and order of a Division Bench of the said High Court pronounced on March 10, 1952, in Civil Misc. Writ No. 7376 of 1951 quashing the departmental proceedings against the respondent and the orders passed therein, namely, the order for his dismissal passed by tb. e District Superintendent of Police on December 21, The state of, 1948, the order of the Deputy Inspector General of u11ar PradeJh Police passed on June 7, 1949, dismissing his ~ppeal v. against the order of his dismissal and the order of the Mohammad Nook Inspector General of Police dated April 22, 1950 reject- - DasC. J. ing his application for revision.
The judgment of the High Court also directed that, if it were desired to proceed against the respondent, the trial should be presided ever by a person other than the District Superintendent of Police who gave evidence in the case and also passed the order of dismissal against the respondent and that it should be in strict conformity with the relevant Police Regulations. The respondent was a constable in the Uttar J;>ra-desh Police Force and was, at the material time, offi-ciating as a Head Constable and posted in the District of Fatehpur. In December, 1947, sixty canc,lidates had to be selected from the Police Force for training at the Police Training College, Moradabad. The respondent was sent up for selection from the District of Fateh-put\ He, however, failed in the Hindi test and was not selected and sixty other candidates were selected for the training. On December 8, 1947 a letter, purporting to have been issued from Lucknow, was received in the U. P.
Police Head Office at Allahabad intimating that the respondent had been selected for training at the Police Training College. As there were only sixty vacancies and as sixty candidates had already been selected, the Head Office people were led to make enquiries as to how this letter came to be issued from Lucknow. The letter having been placed before the Inspector General of Police, Lucknow, he declared it to be a forgery. As the letter was ostensibly for the benefit of the respondent, ,it was naturally suspected that it must have been sent by or at his instance. On March, 15, 1948 the respondent was placed under suspension. Under s. 243 of the Government of India Act, 1935, which was then in force, the respondent, who was in the police force, was n,ot governed by sub-s. (3) of s. 240 which corresponds to art. 311(2) of the Constitution but was governed by the Police Act, 1861 (Act V of 1861) and the Regulations S G A made thereunder by the tate overnment. ccor-dingly, under s.
7 of the Police Act read with Uttar Nooh Pradesh Police Regulations, a departmental enquiry, called a "trial" in the Regulations, was started against the respondent. One Shri B. N. Bhalla, the then District Superintendent of Police, Fatehpur, was deputed to hold the trial. He found the respondent guilty and on April 20, 1948 passed an order of dismissal against him. The respondent went up on appeal to the Deputy Inspector General of Police under Reg. 508. That appeal was dismissed on June 7, 1949. The respondent then filed a revision application to the Inspector General of Police m1der Reg. 512. That application was also dismissed on April 22, 1950. Having exhausted all his remedies under the Police Act read with the Regulations thereunder the respondent on February 24, 1951, filed a writ petition under Art.
226 of the Constitution, praying that the file of the applicant (now respondent) be called for and his dismissal be set aside and that he be given such further and other relief as he may, in law, be entitled to. The main point taken in the affidavit filed in support of the petition and urged before the High Court was that Shri B. N. Bhalla, District Superintendent of Police, who presided over the trial and as such had to come to a finding and to make an order, also gave his own evidence in the proceedings at two stages and had thus become disqualified from continuing as the judge, as, in the circumstances he was bound to be biased against the respondent. A preliminary objection was taken on behalf of the appellant State that the High Court had no power, imder Art.
226, to deal with the order of dismissal which had been passed at a time when the Constitution of India had not come into force, but the High Court rejected that plea as it took the view that the order of dismissal passed by the District Superintendent of Police on December 20, 1948, and the order of dismissal of the appeal passed by the Deputy Inspector General of Police on June 7, 1949, had not become final S. C. R. SUPREME COURT. REPO:B. TS 599 )957 until the Inspector General of Police, on April 22, 1950, made his order dismissing the revision applica- The State 01 tion filed by the respondent under Reg. 512 and that Uttar Pra Urt will decline t(l interfere UI\til the aggrieved party has exhauste(i his other statutory remedies, if any.
B-ut this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion r;tther than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. In the King v. Postmaster- 1 General Ex parte Carmichael( ) a certiorari was issued although the aggrieved party had an alternative Temedy by way of appeal. It has been held that the superior court will readily issue a certiorari in a case where there has been a denial of natural justice before a court of summary jurisdiction. The case of Rex v. Wandsworth Justices Ex parte Read(') is an authority in. point. In that case a man had been convicted in a court of sum! Ilary jurisdiction wl,tho. ut giving him an opportunity of being heard.
It was held that his remedy was not by a case stated or by an appeal before the quarter sessions but by application to the High Court for an order of certiorari to reilJ. ove and quash the conviction. At page 284 Viscount Calde-cote C. J. observed : "It remains to consider the argument that the remedy of certiorari is not open to the applicant because others were available. It would be ludicrous in such a case as the present for the convicted person to ask for a case to be stated.. It would mean asking this court to consider as a question of law whether justices were right in convicting a man without hearing his evidence. That is so extravagant an argument as not to merit a moment's consideration. As to the right of appeal to qua1ter sessions, it may be that the applicant could have had his remedy if he (1)[19•8] 1K. B. 091, (•)(1940) 1 K. B. 081. . 607 :Q~a. pursued that cour. se, tat\~ I ani· PQt aw,are of aqy reason why, ~ in such ch'cumstances llB these.
, he preferred to apply for· an other of certiorari to quash hi!! convictfon, the. court should be debarred from granting his application. '' M~6'rl11Uld. Likewise in Kkt4rshed ·Modi v. &ant Controller, 1 Bombay( ), it was held that the JJ:igh Court would not . refuse to issue a writ of certiorari merely. because there was a right of appeal. It was recognized that ordinarily the High Court w. ould reqilire the petitioner to have recourse to his ordin~ remedies. but if it found· that there had been a breach of fundamental principles of justice, the High Court would certainly not hesitate to issue the writ of certiorari. To the SAJile effect are the following observations of Harries C. J, in Assis~nt Collector of · Cqstoms v. Soorajmufl. Nagarmull (2) at page 470 : "There can, I think, be no doubt that Court can refuse to issue a certiorari if the petitioner has other remedies equally convenient and effective. But it appeai:s to me.
that there can be cases where the court can and should issue a certiorari even where such alternative remedies are available. Where a Court or Tribunal, which is called upon to exercise judicial or qu(ISi-judicial functions dis. cards· all rules of natural justice and arrives at a decision contrary to all accepted principles of justice then it appears to me that the court can and must interfere. " It has also been held that a litigant who has lost his right of appeal or has failed to perfect an appeal by no fault of his own may in a proper case obtain a review by certiorari. (See Corpus Juris Secundum Vol. 14. art. 40, p. 189).
If, therefore, the existence of other adequate legal remedies is not per se a bar to the issue of a writ of certiorari and if in a proper case it may be the duty of the superior court to issue a writ of certiorari to correct the errors of an inferior court or tribunal called upon to exercise judicial or quasi-judicial functions and_ not to relegate the petitioner to other legal remedies avaHable to him and if the superior court can in a proper case exercise its (1) A. J. R. 1947 Bom. 46. (2) (195t) 56 C. W. N. 453. jurisdiction in favour of a petitioner who has allowed the time to appeal to expire or has not perfected his appeal, e. g.
, by furnishing security required by the statute, should it then be laid down as an inflexible Noah rule of law that the superior court must deny the writ when an inferior court or tribunal by discarding all principles of natural justice and all accepted rules of procedure arrived at a conclusion which shocks the sense of justice and fair-play merely because such-0. e-cision has been upheld by another inferior court or tribunal on appeal or revision ? The case of In re Authers(') referred to in Janardan Reddy's case(') furnishes the answer. There the manager of a club was convicted under a certain statute for selling beer by retail without an excise retail license. Subsequently he was convicted of selling intoxicating liquor, namely, beer without a license under another statute. Upon hearing of the later charge the magistrate treated it as a second offence and imposed a full penalty authorised in the case of a second offence by the latter statute.
His appeal to the quarter sessions having been dismissed, . he applied for a writ of habeas corpus and it was granted by the King's Bench Division on the ground that the magistrate could not treat the later offence as a second offence because it was not a second offence under the Act under which he was convicted for the second time. Evidently the poin~ was taken that if there had been any error, irregularity or illegality committed by the magistrate, the quarter sessions could have on appeal corrected the same and that the quarter sessions having dismissed the appeal the court of Queen's Bench Division could not issue lite writ of habeas corpus. This was repel-led by the following observation of Hawkins J. : "This is true as a fact, but it puts the prosecution in no better position, for if the magistrate had no power to give himself jurisdiction by finding that there had been a first offence where there had been none, the justices could not give it to him.
" On the authorities referred to above it appears to us that there may conceivably be cases-and the in- [r88g) L. R. 22 Q,B. D. 345• (2) [1951) S. C. R. 344 stant case is in point-where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and. lou~y obtrusive. that . it leav~s on . its M~d decision an mdehble stamp of mfirm1ty or vice which cannot be obliterated or cured on appeal or revision.
If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procE'dure and which offends the superior court's sense of fair play the superior court may, we think, quite properly exercise its power to issue the prerogative writ of certio-rnri to correct the error of the court or tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned. This would be so all the more if the tribunals holding the original trial and the tribunals hearing the appeal or revision were merely departmental tribunals composed of persons belonging to the departmental hierarchy without adequate legal training and background and .
whose glaring lapses occasionally come to our notice. The superior court will ordinarily decline to interfere by issuing certiorari and all we say is that in a proper case of the kind mentioned above it has the power to do so and may and should exercise it. We sav no more than that. Learned counsel for the appellant State next urges that because the order of dismissal was passed by the District Superintendent of Police on December 20, 1948, and the order dismissing the appeal was passed by the Deputy Inspector General of Police on June 7, 1949, both of which were before the commencement of the Constitution, the High Court could not exercise its powers under Art. 226 to quash those orders.
This argument is countered by the respondent by the argument that the dismissal order of December 20, 1948, did not become final until after the Inspector- General of Police had dismissed the revision L2SC/61-2 application on April 22, 1950, that is to say, after the Constitution came into force, and, therefore, the High Court had ample power to quash all the three orders. Nooh It is not disputed that our Constitution is prospec-tive in its application and has no retrospective opera-ti on except where the contrary has been expressly provided for. It has been held in a series of decisions of the High Courts, some of which are referred to in the judgment under appeal, that Art. 226 and Art. 227 have no retrospective operation and transac-tions which are past and closed and the rights and liabilities which have accrued and vested would re-main unaffected.
The correctness of this principle has not been questioned by the High Court when dealing with the present case and has not been disputed before us. It is, therefore, conceded that if the matter had rested with the order of dismissal passed by the District Superintendent of Police on April 20, 1948, and the order passed by the Deputy Inspector-General of Police on June 7, 1949, dismissing the appeal and confirming the order for the dismissal of the respondent, an application for a writ under Art. 226 would not lie in this High Court to set aside those orders as this was not one of the High Courts that had writ jurisdiction before the Constitution. It is, however, contended that the order of dismissal dated April 20, 1948, had merged in the order passed on appeal on June 7, 1949, and that both the orders merged in the order passed by the Inspector-General of Police on April 22, 1950, on the revision application.
It is said that the revisional jurisdiction is a part of the appellate jurisdiction and the principle on which a decree of the court of first instance in a civil suit merges in the decree on appeal applies with equal force to an order made on an application for revision and conse-quently both the orders passed by the District Superintendent of Pol. ice and that passed on appeal by the Deputy Insp6'ctor-General of Police merged in the order passed on revision by the Inspector-General of Police on April 22, 1950. To put it shortly, the contention of the respondent is that the order of dismissal passed on April 20, 1948, became final only on the passing of the order in revision on April 22, 1950, and as that order was passed after the date of the commencement of the Constitution, its validity could be called. in question on an application under Art. 226. Mohammad Nooh There appear to be two answers to the foregoing contention.
As we have already observed an order of dismissal passed on a departmental enquiry by an officer in the department and an order passed by another officer next higher in rank dismissing an appeal 'therefrom and an order. rejecting an application for revision by the head f the department can hardly be equated with any propriety with decrees made in a civil suit under the Code of Civil Procedure by the court of first instance and the decree dismissing the appeal therefrom by an appeal court and the order dismissing the revision petition by a yet higher court, as has been sought to be done by the High Court in this case, becaui;;e the departmental tribunals of the first instance or on appeal or revision are not regular courts manned by persons trained in law although they may have the trappings of the courts of law. The danger of so doing is evident from what has happened in the very case · now before us.
In the next place, while it is true that a decree of a court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order. passed in revision it does so only for certain purposes, namely, for the purposes of com-puting the period of limitation for execution of the decree as in Batuk Nath v. Munni Dei(1), of for com-puting the period of limitation for an application for final decree in a mortgage suit as in Jowad Hussain v. Gendan Singh (2). But, as pointed out by Sir Lawrence Jenkins in delivering the judgment of the 3 Privy Council in Juscurn Boid v. Prithichand Lal( ) whatever be the theory under other systems of law, under the Indian Law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal.
There is nothing in the Indian Law to warrant the suggestion that the decree or order of the court or tribunal of the first instance becomes final only on the termination of all Nooh proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective. In that view· of the matter the original order of dismissal passed on April 20, 1948, was not suspended by the presentation of appeal by the respondent nor was its operation interrupted when. the Deputy Inspector-General of Police simply dismissed the appeal from that order or the Inspector-General simply dismissed the application for revision. The original order of dismissal if there were no inherent infirmities in it, was operative on its own strength and it did not gain any greater efficacy from the subsequent orders of dismissal of the appeal or the revision except for the specific purposes hereinbefore mentioned.
That order of dismissal having been passed before the Constitution and rights having accrued to the appellant State and liabilities having attat:hed to the respondent before the Constitution came into force, the subsequent conferment of jurisdiction and powers on the High Court can have no retrospective operation on such rights and liabilities. Even if the order of dismissial of the respondent was a nullity on the ground that it was passed by disregarding the rules of natural justice, the High Court could not properly be asked to exercise its newly acquired jurisdiction and powers under Art. 226 to correct errors, irregularities or illegaiities committed by the inferior departmental tribunal before the commencement of the Constitution, for then there will be no limit to its going backward and that will certainly amount to giving the provisions of Art. 226 a retroactive operation. This aspect of the matter does not appear to have been pressed in the High Court or adverted to by it.
It is only on this ground that we are constrained, not without regret, to accept this appeal. (1) (1914) L. R. 41 I. A. 104. (2) (1926) L. R. 53 I. A. 197. (3) (1918) L. R. 46 I. A. 52; I. L. R. 46 Cal. 670, 678-679. The appear is, therefore, allowed, but in the circumstances of the case we make no order as to costs. BosE J. -With great respect I am unable to agree. I respectfully agree with my Lord that Janardan TheStateof Reddy's case(1) must not be construed to mean that Uttar Pradesh a High Court can never interfere under Art. 226 once Moham:,dd Noolt a competent Court of appeal has finally decided whether a Court subordinate to it has jurisdiction or not · Bose J. in a given matter. I also accept the position that the Constitution is not retrospective and that the Courts cannot exercise any new jurisdiction and powers conferred by it to reopen decisions and orders that had become final before it came into being. But I cannot agree that that is the case here. ,.
The very wide powers conferr(i! d on the High Courts by Art. 226, and on this Court by Art. 136, were given in order to ensure that justice is done in this land and that the Rule of Law prevails. I see no reason why any narrow or ultra technical restrictions should be placed on them. Justice should, in my opinion, be ad-ministered in our Courts in a common-sense liberal way and be broad-based on human values rather than on narrow and restricted considerations hedged round with hairsplitting technicalities. What is the position here? What woul'd have be~n the result if the order of April 20, 1948, dismissing the respondent had been passed after the Constitution instead of before it? At what point of time would the High Court have entertained a petition under Art. 226? I think it is elementary that, save in exceptional cases, the Courts will not interfere under Art. 226 until all normal remedies available to a petitioner have been exhausted.
The normal remedies in a case of this kind are appeal and revision. It is true that on a matter of jurisdiCtion, or on a question that goes to the root of the case, the High Courts can entertain a petition at an earlier stage but they are not bound to do so and a petition would not be thrown out because the petitioner had done that which the Courts usually direct him to do, namely, to exhaust his normal remedies before invoking an extraordinary jurisdiction. Therefore, if this order of dismissal had ( 1) [1951) S. C. R. 344· been made after the Constitution, the petitioner would have been expected to pursue his remedies of appeal and revision first and could not have come to the High Court in the ordinary way until he had exhausted Mohammad Noah them; and having come at that stage he could not have been turned away unheard on the. ground that he was out of time because his grievance was against the original order.
The very decisions to which my Lord has referred established that for these purposes, at any rate, the earlier orders would merge in the final one·. But I am not basing on technicalities. What is plain to me is that if this order of dismissal had been made after the Constitution, the petitioner would have been entitled to wait for the final order (and in the ordinary way would have been bound to wait) before coming to the High Court. Why is the position any different because he has done before the Constitution exactly what he would have been expected, and in the ordinary course bound, to do after it? The final order was passed after the Constitution on April 22, 1950. It is true that if it had been passed before the Constitution came into force on Januarv 26, 1950, the petitioner would have had no remedy in the Courts. But the Constitution breathed fresh life into this land and conferred precious rights and privileges that were not there before. Why should they be viewed narrowly?
Why should not that which would have been regarded as still pending for present purposes, if all had been done after the Constitution, be construed in any different way when the final act, which is the decisive one for these purposes was done after it? I regard it as unduly narrow and restrictive to equate these broad-based constitutional privileges to highly technical procedural decisions dealing with limitation and the. merger of decrees. The question to my mind is not whether there has been merger but whether those proceedings can, on any broad and common-sense view, be regarded as still pending for the purposes of Art. 226. If they would be so regarded when all is done after the Constitution (and about that I have no doubt), what conceivable justification is there for holding that they cannot in this case just because a part of the process had started before it?
The principle that new rights conferred under the Constitution can be used in pending proceedings with devastating effect has· been accepted by this Court in many cases. In Lackmandas Kewalram Ahuja v. The State of Bombay(1), my Lord the Chief Justice, delivering the judgment of the Court, pointed out at page 734 that though the Legislature has power to take away normal rights of, among other things, transfer and revision in a criminal case before the Constitution, that kind of legislation became bad after the Constitution, even if it had been enacted before, because of the new rights conferred by Art. 14. The principle was also applied in Shree Meenak-shi Mills Ltd. v. Sri A. V. Visvanatha Sastri (2) Dhirendra Kumar Mandal v. The Superintendent and Remembrancer of Legal Affairs to the Government of 8 West Bengal ( ), Habeeb Mohamed v. The State of 4 Hyderabad ( ), Syed Casim Razvi v. The State of 5 Hyderabad ( ) and 'Kesavan Madhava Menon v. The 6 State of Bombay( ).
These cases are not e~actly in point but the principle is there and it is that principle that I invoke here. On the merits I am clear that the appeal should be dismissed. In the first place, this Court, following the English decisions, has decided in Manak Lal v. Dr. Prem Chand Singhvi(') that the principles of natural justice must be observed not only by Courts proper but also by "all tribunals and bodies which are given jurisdiction to determine judicially the rights of par-ties"; and if they are not observed, the decision is vitiated. So that is now beyond controversy. Next, there can, I think, be no doubt that the District Superintendent of Police, who conducted the departmental trial and found the respondent guilty, acted in a judicial capacity. The Departmental Rules that require an enquiry in such cases call the proceed- (1) [1952)8. C. R. 7rn. (5) [1953] S. C. R. 589. (2) (1955] I s. c. R. ']87, 798. (6) [1951) S. C. R. 228. (3) [1955] I S. C. R. 224, 237. (7) A. I. R. 1957 S.
C. 425, 42 . (4) [1953] S. C. R. 661. ings a trial and the procedure set out in them indicates the judicial nature of the enquiry. So that condition is also fulfilled. Then, thirdly, were the principles of natural justice Nooh ignored in this case? That also is, I think, settled by authority. What happened here? The District Superintendent of Police examined a certain witness in the course of the enquiry. It seems that that witness's evidence was con5idered a vital link in the chain of evidence against the respondent. The District Superintendent of Police reached the conclusion that the witness had turned hostile. He may have been right about that, but he also considered it necessary to ref1Jte this evidence and :qJ. ake good the lacuna by bringing other material on record. Apparently, no other witness was available, so the District Superintendent of Police, who seems to have had personal knowledge about the facts, stepped down from the Bench and got his testi- .
mony recorded by another authority, once before charge and again after charge, and each time, after that was done, stepped back on to the Bench in order solemnly to decide whether he should believe his own testimony in preference to that of the witness who, in his judgment, had committed perjury and gone back on the truth. It hardly matters whether this was done in good faith or whether the truth lay that way because the spectacle of a judge hopping on and off the bench to act first as judge, then as witness, then as judge again to determine whether he. should believe himself in preference to another witness, is startling to say the least. It would doubtless delight the hearts of a Gilbert and Sullivan Comic Opera audience but will hardly inspire public confidence in the fairness and impartiality of departmental trials; and certainly not in the mind of the respondent.
Even before the Constitution, departmental trials were instituted to instil a sense of security in the services and inspire confidence in the public about the treatment accorded to government servants. The question in these cases is always: "Whether it is likely to produce in the minds of the litigant or the public at large a reasonable doubt about the fairness of the administration of justice. " (Manak Lal v. Dr. Prem Chand)(1). • • One of the English cases relied on by this Court m the case just cited was the House of Lord's decision in Mohammad Frame United Brewertes Co. v. Bath Justices(2). At page 600. Lord Atkinson cited an instance which is almost on all fours with the present case. He said: "It could not possibly have been intended by this statute to authorise a.
· practice which would, I think be inconsistent with the proper administration of justice-namely, that a licensing justice, one of the members of the compensation authority, should, on a given occasion, descend from the Bench, given his evidence on. oath and then return to his place upon the Bench to give a decision possibly based on his own evidence. " The matter is, as I said, covered by authority and I need say no more except that, even if it w,ere not, I would have had no hesitation in reaching the same conclusion. Some question arose about waiver. If the respondent, knowing his rights, had acquiesced in the conti-nuance of the trial despite this defect, then, of course, he would not have been allowed to complain at a later stage. I do not know whether he was repre-sented by counsel in the enquiry or whether if he was not, he was aware that this kind of action vitiated the proceedings; nor do I know whether he pro-tested and took the point in the appeal and revision.
Those papers have not been filed. But I do know that waiver is not raised in the grounds of appeal to this Court nor is the point taken in the appellant's statement of the case. -As this is a· question of fact, I, for one, would not allow it' to be urged at this stage. I would dismiss the appeal. ORDER. In accordance with the opinion of the majority, the appeal. is allowed. (1) A. I. R. 1957 S. C. 425, 429. (2) {1926) A. C. 586.
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