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2001 DIGILAW 373 (CAL)

Kishore Ranjan Roy v. State of West Bengal

2001-06-29

Hrishikesh Banerji, Tarun Chatterjee

body2001
JUDGMENT The Court: By the present Writ Application the petitioner who was an Inspector of the State Armed Police, 8th Battalion, Barrackpore, challenges the order dated 25.9.1998 passed by the West Bengal Administrative Tribunal ("the Tribunal" for short) rejecting the Petitioner's Application before the Tribunal for quashing the Petitioner's order of dismissal dated December 2, 1997. 2. When the petitioner was posted in the North 24-Paraganas as a police constable he was charged with misconduct unbecoming of a Police Officer. The allegation against him was that he married one Renuka Roy and was living with her in a rented quarter although his first wife Smt. Mamata Rani Roy was alive. The charge against him was violation of Service Conduct Rules 4 and 30 of the West Bengal Servant Conduct Rules. 1959 ("the 1959 Rules" for short). He was found guilty of the charge and S.P. North 24-Parganas, accepting the findings of the Enquiring Officer, passed the final order of dismissal on 25.8.1992. 3. The petitioner challenged that above Order of dismissal dated 25.8.1992 by filing a Writ Petition in this Court which was later transferred to the Tribunal and registered as TA 269 of 1996. 4. The Tribunal was of the view that before imposing the penalty of dismissal from service the disciplinary authority should have given the petitioner an opportunity of showing cause against the proposed penalty and that the petitioner should have been supplied with a copy of the Report of the Enquiring Officer and that he should have been asked to show-cause within a reasonable time against the proposed penalty to be imposed. 5. With these observations the Tribunal by the Order dated 15.9.1997 set aside the impugned Order of dismissal dated 25.8.1992 passed by the respondent No.3, S.P., North 24-Parganas and directed him to proceed afresh in accordance with law particularly regulation 861 of the PRB (Police Regulations of Bengal) on due consideration of the Report submitted by the Enquiring Officer. The Tribunal. also directed continuance of payment of the petitioner's subsistence allowance and other allowances as admissible under the Rules during the period of suspension and till the disposal of the departmental proceeding by a final order. 6. The Tribunal. also directed continuance of payment of the petitioner's subsistence allowance and other allowances as admissible under the Rules during the period of suspension and till the disposal of the departmental proceeding by a final order. 6. The petitioner was served with a provisional dismissal order dated 23.7.1997 whereby he was asked to show cause within a period of 15 days why the provisional punishment should not be imposed for gross misconduct of moral turpitude as he was guilty of adulterous relationship with one Smt. Renuka Roy during the subsistence of his first marriage. By this Order it was also communicated to the petitioner that the payment of subsistence allowance and other allowances as per rules would continue till the final order was passed in the matter. 7. The petitioner filed a Second Application being OA 85 of 1998 before the• Tribunal on the ground that the respondent issued the dismissal order dated December 2, 1997 and there was no fresh hearing. Therefore the said order of dismissal is violative of the principles of natural justice and not in conformity with Rule 861 of P.R.B. 8. In appears from the order of the Tribunal which is under challenge in the present Writ Application that on 7.11.1997 the second show-cause notice that is, the Provisional Order passed by the Authority on 22.10.1997 was received by the petitioner and a reply thereto denying the allegations of his illicit relations with Smt. Renuka Roy was sent to the Authority. The Order of dismissal was given effect from 19.12.1997. 9. The Tribunal held that the question of de novo proceeding as mentioned in the petitioner's application in the Tribunal does not arise as in the Order dated 15.9.1997 it was made explicit that the matter should be considered afresh by the respondents on the basis of Reports submitted by the Enquiring Officer. No rejoinder has been filed by the petitioner. The reply relating to receipt of second show cause notice remains uncontroverted. The Tribunal found that there was no illegality or irregularity in the final order dated 2.12.1997 passed by the Authority and dismissed the petitioner's application. 10. The ld. No rejoinder has been filed by the petitioner. The reply relating to receipt of second show cause notice remains uncontroverted. The Tribunal found that there was no illegality or irregularity in the final order dated 2.12.1997 passed by the Authority and dismissed the petitioner's application. 10. The ld. Counsel, appearing for the respondents, submits that the misconduct of the petitioner comes very much within Rule 4 of the 1959 Rules and referring to the facts of the present case cites the decision in AIR 1998 S.C. 853 (Ministry of Finance & Anr. vs. S.B. Ramesh) where it has been held that a Government servant who is already married lives with another woman is guilty of misconduct deserving departmental action and punishment. In the present case also we approve the finding of the Disciplinary Authority that the petitioner was guilty of misconduct as contemplated under Rule 4 of the 1956 Rules inasmuch as we are satisfied from the materials on record that the petitioner was living in adultery with another woman during the subsistence of his marriage. 11. Mr. Moitra, the learned Counsel for the petitioner, in support of his contention challenging the propriety of the disciplinary proceeding and the Order of dismissal against the petitioner refers to the following decisions- 1. AIR 1984 S.C. 63 (State of Maharashtra vs. Narsingrao Gangaram Pimple) 2. AIR 1984 S.C. 1361 (A.L. Kalra vs. The Project and Equipment Corporation of India (Ltd.) and 3. AIR 1985 S.C. 504 (Rasiklal Vaghajibhai Patel vs. Ahmedabad Municipal Corporation and Anr.). 12. In AIR 1984 S.C. 63 (supra) it has been held by the Apex Court that a plea of alibi must be proved to be absolute certainty so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence and that in the absence of such proof the accused could not be convicted. The standard of proof required in a criminal case is definitely not similar to that required to prove a charge against a delinquent in a disciplinary proceeding. 13. The decision in AIR 1984 S.C. 1361 (supra) is not at all applicable to the facts of the present case inasmuch as in the cited decision it was held that the alleged conduct did not constitute misconduct within the Service Rules governing the charged employee. 14. 13. The decision in AIR 1984 S.C. 1361 (supra) is not at all applicable to the facts of the present case inasmuch as in the cited decision it was held that the alleged conduct did not constitute misconduct within the Service Rules governing the charged employee. 14. In the present case we find that the petitioner violated Rule 4 of the 1959 Rules inasmuch as it has been found both by the Tribunal and by the Disciplinary Authority that the petitioner was living in adultery with a woman by the name Renuka Roy during the subsistence of his marriage with his wife Smt. Mamata Rani Roy and it cannot be disputed that such aqulterous living was unbecoming of a member of the Police, within the meaning of Rule 4 of the 1959 Rules. 15. In AIR 1985 S.C. 504 (supra) it has been held that there cannot be any dismissal of an employee for misconduct under the provisions of the Industrial Disputes Act, 1947 if the alleged misconduct does not fall within the enumerated misconduct in service regulations or standing orders. 16. This case is not at all applicable to the case in hand as the alleged misconduct comes very much within Rule 4 of the 1956 Rules governing the petitioner. 17. Mr. Moitra next contends that the West Bengal Government Servants' Conduct Rules, 1959 having been repealed by the West Bengal Services (Duties, Rights and Obligations of the Govt. Employees) Rules, 1980 ("the 1980 Rules" for short) the charge against the petitioner under the 1959 Rules is not sustainable. 18. In support Mr. Moitra cites the decision in Gajraj Singh Etc. vs. The State Transport Authority Tribunal and Ors., reported in AIR 1997 S.C. 412 where it has been held that following the repeal of an enactment the repealed Act stands completely obliterated from the record of Parliament. 19. He also cites AIR 1976 Allhabad 170 (Mohan Agarwal vs. Union of India) where it has been held that the general rule of repeal is that when a parent Act is repealed all laws made thereunder stand repealed. 20. The decision in National Planners, Ltd. vs. Contributors Etc., reported in AIR 1958 Punjab 230, cited by Mr. 19. He also cites AIR 1976 Allhabad 170 (Mohan Agarwal vs. Union of India) where it has been held that the general rule of repeal is that when a parent Act is repealed all laws made thereunder stand repealed. 20. The decision in National Planners, Ltd. vs. Contributors Etc., reported in AIR 1958 Punjab 230, cited by Mr. Moitra lays down that it is a well-settled rule of common law that when an action is brought under a statute which is afterwards repealed the Court loses jurisdiction of the suit pending under the repealed Act and is unable to deliver judgment thereon and that the effect of the repealing statute is to obliterate it as completely from the records of the parliament as if it had never been passed by the Parliament. 21. All these decisions regarding repeal cited by Mr. Moitra are not applicable to the facts of the present case inasmuch as the 1980 Service Conduct Rules do not apply to the members of the Police Service under the proviso to sub-rule (2) of Rule 1 of 1980 Rules uiz. the West Bengal Services (Duties, Rights and Obligations of the Government Employees) Rules, 1980. 22. The contention of Mr. Moitra regarding the repeal of the 1959 Rules does not help the petitioner inasmuch as Rule 8 of the 1980 Rules makes it clear that from the date of the coming into force of the 1980 Rules, the 1959 Rules shall, in relation to the Government employees to whom the said Rules apply shall stand repealed. The 1959 Rules cannot be said to have been repealed by the 1980 Rules so far as the members of the Police are concerned because the 1980 Rules have not been made applicable to the members to the Police Service. 23. In view of the above findings we are not inclined to upset the order passed by the Tribunal and we find the order of dismissal to be justified calling for no interference and the Writ Petition is accordingly dismissed. No order as to costs. Tarun Chatterjee, J. Hrishikesh Banerji, J. Writ petition dismissed.