Gour Narayan Barat v. State of West Bengal — 1997 DIGILAW 400 (CAL)

JUDGMENT Bhagabati Prosad Banerjee, J. 1. In this case petitioner moved the tribunal against the issuance of a Charge Sheet vide Memo No. 495 P & HR (Vig.), dated 16.4.1997. The articles of charge that was served upon the petitioner are as follows:- "It appears that Shri Narayan Barat, while working as Sub-Inspector of Police, S.C.O., Calcutta during the period from 1.1.1975 & 31.12.1976, acquired movable assets to the tune of Rs. 21,750/- in the shape of deposit in Bank Accounts, purchase of Scooter and Stereo in the names of self and wife Sm. Pratima Barat. Out of the said amount a sum of Rs. 19,299.42 paise say Rs. 19,299/- for which the explanation of Shri Barat does not seem to be convincing, appears to be disproportionate to his known source of income. Details are given in the statement of imputation:- Such conduct of Shri Barat prima facie shows lack of integrity and is improper and unbecoming of a public servant and as such is violative of Rules 3 & 4 of the West Bengal Government Servants' Conduct Rules, 1959." 2. In the year 1978 petitioner was called upon by a secret memo issued by the Departmental Authority to appear before the Deputy Superintendent of Police-I, Anti Corruption Bureau, Vigilance Commission with deeds relating to all immovable properties standing in his name or in the names of his dependents; (b) L.I.C. Policies, Postal and Bank A/Cs., Fixed Deposit Account standing in his name or in the names of his dependents; (c) Purchase papers regarding other valuables (Refrigerator, Radiogram, Motor Cycle, Ornaments etc.) standing in his name or in the names of his dependents. It appears that the petitioner appears before the Officer pursuant to such notice dated 27.4.1978 issued by the Joint Commissioner of Police and the petitioner produced all those documents and explained the position, but as the authority concerned remained significantly silent over the matter and not dropping the proceedings formally petitioner made a representation to the Deputy Inspector General of Police, Vigilance Commission on 31.7.1980 but without any result. Again the petitioner made a representation before the Vigilance Commissioner, Government of West Bengal on 2.2.1982 drawing the attention of the Commissioner of the fact that he bad co• operated with the investigating Agency with all papers and documents as called for with the assured understanding that it would quicken the process. Again the petitioner made a representation before the Vigilance Commissioner, Government of West Bengal on 2.2.1982 drawing the attention of the Commissioner of the fact that he bad co• operated with the investigating Agency with all papers and documents as called for with the assured understanding that it would quicken the process. But, 7 years had passed without any result. Accordingly, petitioner prayed for quick disposal of the matter. A further representation was made before the Joint Commissioner of Police, Calcutta requesting him to dispose of the matter expeditiously as it caused serious difficulty in the service career of the petitioner, but nothing was done by the authority concerned and the matter was not proceeded with. 3. It is the case of the petitioner that after all these, it must be taken that the matter must be deemed to have been dropped altogether. Thereafter by the orders of the Commissioner of Police, Calcutta published in the Calcutta Police Gazette, dated 1.6.1990 it was informed that the petitioner who was one of the officiating Inspectors who had completed more than two years officiating in the rank of Inspector (Investigating Cadre) wall called to appear before the Board. The Board after going through the records of those 37 officiating Inspectors including the petitioner and after interviewing them according to their seniority in the Gradation List selected the said Officers including the petitioner as Inspectors in the Approved List-I in the confirmed rank. At the time of promotion petitioner's records was considered and vigilance clearance was taken. Subsequently, petitioner was given further promotion to the Assistant Commissioner of Police and posted at South Division, Calcutta which was published in the Calcutta Police Gazette, dated 22.1.1996 and now be is confirmed in the post of Assistant Commissioner of Police. While was posted as Assistant Commissioner of Police, petitioner was served with a charge sheet as mentioned above and the petitioner was directed to submit a written statement to his defence to the Enquiry Officer for full-fledged departmental proceedings. While was posted as Assistant Commissioner of Police, petitioner was served with a charge sheet as mentioned above and the petitioner was directed to submit a written statement to his defence to the Enquiry Officer for full-fledged departmental proceedings. Against the initiation of the said departmental proceedings petitioner filed an application before the tribunal and the tribunal rejected the petition relying upon a decision of the Supreme Court in the case of Union of India vs. Ashok Kacker, 1995 Supp (1) SCC 180, wherein the Supreme Court held that in a departmental proceeding a party will get all reasonable opportunity of being beard and at the initial stage Court or the tribunal should not interfere with such proceeding. 4. The view of the Supreme Court in this regard is well settled not only by various decisions of the Supreme Court, but also by several Division Bench decisions of this Court that at the initial stage nobody c an challenge the validity of the charge sheet unless there are grounds for challenging the validity of the charge sheet. At the initial stage if a party moves the Court against a show cause notice, in that event the Court has to proceed with the footing that the allegations made in the show cause notice were correct and the party concerned has no jurisdiction to proceed with the matter. 5. The case of the Supreme Court on which the tribunal has relied on was a case where the petitioner after receiving the charge sheet without submitting the reply moved the Court. But, in the instant case, petitioner has raised two points. Firstly it was a state charge. Secondly, the charge relates to the period 1975-76 in respect of which notice was served upon him in 1978 and be appeared before the authority and submitted his reply and he moved from pillar to post for concluding the proceeding, but the authority concerned was significantly silent over the matter for a long time. 6. In support of the case of the petitioner Mr. 6. In support of the case of the petitioner Mr. Asok De, learned advocate appearing for the petitioner relied upon a decision of a Division Bench of this Court presided over by Sir Asutosh Mookerjee, J. (as His Lordship then was) in the case of L.W. Middleion vs. Harry Playfair, AIR 1925 Cal 87, wherein it was held that if a master on discovering that his servant has been guilty of misconduct which would justify a dismissal, yet elects to continue him in his service, he cannot at any subsequent time dismiss him on account of that which he has waived or condoned. 7. Reliance was placed to a decision of the Supreme Court in the case of State of Punjab vs. Dewan Chuni Lal, AIR 1970 SC 2086 , wherein a departmental proceeding was initiated against a Police Sub-Inspector on the charges of inefficiency and dishonesty based on adverse reports of Superior Officers, but did not allow the Police Sub-Inspector to cross-examine the said Officers though available. The said confidential reports related to the period earlier than the year in which the petitioner was allowed to cross efficiency bar and which should not be considered in the enquiry. In that case the Supreme Court held that at the time of crossing the efficiency bar all the records were considered and it unthinkable that if the authorities concerned took any serious view of the charge of dishonesty and inefficiency contained in the confidential reports of 1941 and 1942, they could have overlooked the same and recommended the case of the Officer as one fit for crossing the efficiency bar in 1944. Under such circumstances, the Supreme Court observed that by allowing the petitioner to cross the efficiency bar any commission or omission before that date, he must be given clean bill and the same could not be reopened after his case was considered and he was allowed to cross such efficiency bar. 8. Mr. De also relied on a decision of the Supreme Court in the case of State of Punjab vs. Dewan Chuni Lal, AIR 1970 SC 2086 , wherein the Supreme Court had occasion to consider the effect of setting aside an illegal appoint after lapse of some years. 8. Mr. De also relied on a decision of the Supreme Court in the case of State of Punjab vs. Dewan Chuni Lal, AIR 1970 SC 2086 , wherein the Supreme Court had occasion to consider the effect of setting aside an illegal appoint after lapse of some years. In that case, admittedly Narayan Rath's appointment as Secretary to the said Bank was made without approval of the Board but he was allowed to work for long 13 years and that after 13 years the President of Bank terminated the service of Narayan Rath on the basis of his initial infirmity in the post, i.e. he was not qualified to the post and his appointment was made without approval of the President. The Supreme Court in that case while delivering the judgment observed that it was not open to the Registrar to set aside the appointment of the Incumbent after long 13 years and having acquiesced in the appointment and having allowed the incumbent to work for such long years. 9. It was submitted by Mr. De that a similar point was raised before the Supreme Court in the case of State of Madhya Pradesh vs. Bani Singh & another, AIR 1990 SC 1308 . In that case a disciplinary proceeding was initiated against Bani Singh more than 12 years after the said Singh was granted promotion to the higher post. The Supreme Court observed that the Disciplinary Authority could not reopen the case of any misconduct and dismiss the employee concerned after granting a promotion to him on the basis of anything that had happened prior to such granting of promotion as it was held that when the promotion was given by the authority concerned, the authority concerned must have considered all the papers and documents and thereafter granted such promotion. In that case tribunal set aside the order of dismissal which was upheld by the Supreme Court on the ground of delay and laches. 10. Mr. De relied on a decision of a Division Bench of this Court of which one of us was a party which is reported in Mrinal Kanti Chakraborty vs. State of West Bengal & other, 1993 (2) SLR 647 . 10. Mr. De relied on a decision of a Division Bench of this Court of which one of us was a party which is reported in Mrinal Kanti Chakraborty vs. State of West Bengal & other, 1993 (2) SLR 647 . In that case it was held that after a promotion was given, no displinary proceeding could be initiated or allowed to be continued on the basis of omission or commission or materials which relate to periods prior to the granting of such promotion inasmuch as promotion once given on consideration of the entire records amounts to give a clean chit and after a promotion is granted disciplinary Authority is estopped from issuing any charge sheet in respect of the allegations pertaining to the period prior to such promotion. 11. In the instant case, there was no explanation whatsoever before the tribunal regarding such inordinate delay of 23 years to draw up a proceeding though the entire records and/or materials were in possession of the respondent authority 23 years back and which was also considered by the Officers of the Vigilance Commission. The check period was between 1.1.1975 and 31.12.1976 and it would be unfair and against the principles of fair place to allow the respondents to reopen the issue when law is well-settled by various decisions of the Supreme Court that in such cases incumbent cannot he asked to face such departmental proceedings on 8 charge relates to such long years back. It is not the case where the Disciplinary Authorities could not know of any such misconduct and/or ommission or commission and immediately thereafter the authority proceeded to initiate a charge sheet. In the instant case, the facts were known to the respondents 23 years back and the Disciplinary Authorities and the Officers of the Vigilance Commission were competent to take a decision and draw up a proceeding and with the change of Officers there cannot be a change of policy of the Government and the changed Officers cannot reopen a case in such state of affairs at their whims and caprices without disclosing any reason whatsoever. 12. Of course, it is not necessary in this case. But, it appears that change against the petitioner is acquiescence of assets to the tune of Rs. 21,750/- for the check period 1.1.1975 to 31.12.1976. 12. Of course, it is not necessary in this case. But, it appears that change against the petitioner is acquiescence of assets to the tune of Rs. 21,750/- for the check period 1.1.1975 to 31.12.1976. It is unthinkable that an Officer had entered into the service without any money or without any asset. Accordingly, there is no legal basis for fixing up the check period and this question was considered in Mrinal Kanti Chakraborty vs. State of West Bengal & other, 1993 (2) SLR 647 and in Ram Gopal's Case, 1987 Lab IC 1017. 13. The decisions of the Supreme Court in the case of Union of India vs. Ashok Kacker, 1995 Supp (1) SCC 180; State of Orissa vs. Bimal Kumar Mohanty, 1994 (4) SCC 126 ; Secretary to Government Prohibition and Excise Department vs. F.L. Srinivasan, 1996 (3) SCC 157 and B.C. Chaturvedi vs. Union of India & another, AIR 1996 SC 484 are not applicable in the facts and circumstances of this case inasmuch as in the case of Union of India vs. Ashok Kacker (supra) there was no challenge regarding validity of the charge sheet and/or proceedings. In this cafe the principle laid down implies that in an ordinary situation the validity could not be challenged in the absence of cogent ground at the initial stage because the allegations made in the charge sheet had been accepted as true. But the fact of the present case is otherwise. 14. The case of State of Orissa vs. Bimal Kumar Mohanty (supra) is a case of acquisition of disproportionate assets and Sri Mohanty was suspended from service. The Supreme Court held that the tribunal erred in enterferring with the order of suspension. The suspension is not a punishment and it can be issued pending an enquiry or in contemplation of the enquiry. The order of suspension can be challenged on a very limited ground for want of jurisdiction. 15. So far a, the case of Secretary to Secretary to Government Prohibition and Excise Department vs. F.L. Srinivasan, is concerned a departmental enquiry and simultaneously criminal trial were pending against him for serious charges of fabrication of false record etc. The tribunal set aside the enquiry and quashed the charge on the ground of delay in initiating proceeding. 15. So far a, the case of Secretary to Secretary to Government Prohibition and Excise Department vs. F.L. Srinivasan, is concerned a departmental enquiry and simultaneously criminal trial were pending against him for serious charges of fabrication of false record etc. The tribunal set aside the enquiry and quashed the charge on the ground of delay in initiating proceeding. The Supreme Court held that since criminal case is pending against him it would take a long time to detect the offence the Supreme Court held that under such circumstances no relief can be granted to the parties. 16. So far as the case of B.C. Chaturvedi vs. Union of India & another (supra) is concerned the Supreme Court reiterated its view that during the pendency of a disciplinary proceeding one should not be promoted and orders of promotion must be in sealed cover procedure. In the instant case delay was 23 years in drawing up the proceeding and when the delay is ex facte, the delay as indicated through light on the motive of the decision maker and this case is fully covered by the principle laid down in the case of State of Punjab vs. Dewan Chuni Lal and it was followed by the Division Bench of this Court in the case of Mrinal Kanti Chakraborty vs. State of West Bengal & other, 1993 (2) SLR 647 (supra) and the judgment of the Supreme Court passed in the case of Dewan Chuni Lal has not yet been overruled or modified and this is a still binding law laid down by the Supreme Court in this regard. 17. Accordingly, in view of the well-settled principle of law, respondents cannot be allowed to proceed with the departmental proceedings after lapse of 23 years in the facts and circumstances of the case and we are of the view that the tribunal was wrong in rejecting the application of the petitioner herein. 18. Accordingly, the order of the tribunal is set aside and the initiation of the departmental proceedings including the charge sheet issued against the petitioner vied Memo No. 495 P & HR (Vig.) dated 16.4.1997 issued by the order of the Governor and signed by the Joint Secretary to the Government of West Bengal, Home Department (P & HR) is hereby quashed. The tribunal appeal/application is allowed accordingly. There will be, however, no order as to costs.