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2001 DIGILAW 388 (CAL)

NIRANJAN SANTRA v. UNION OF INDIA

2001-07-04

ASHIM KUMAR BANERJEE

body2001
A. K. BANERJEE, J. ( 1 ) - The writ petitioner was a constable in Central Reserved Police Force, he was served with a chargesheet. Charges stipulated in the said charges are set out as follows:article-I"that the said No. 861310112 const. Niranjan Santra of this unit who was attached with 40 Bn CRPF to perform duty in Transit Officer Mess, while functioning as Security aid in Transit Officers Mess, on 9/3/91, committed gross remissness and misconduct in his capacity as a member of the force under section 11 (1) of CRPF Act 1949 read with rule-27 of CRPF Rules-1955, in that he left lines at about 1430 hrs. without obtaining any permission/leave from the competent authority. ARTICLE-II that the said No. 861310112 Const. Nirajan Santra while functioning as Security Aid in Transit Officers Mess, committed on act of gross misconduct in that. After leaving 40 Bn Campus/lines without obtaining prior permission/leave from competent authority he on 9/3/91 went to Budha Jayanti Park and got involved in a criminal case under sections 385/170 and 121 IPC vide FIR No. 57/9 dated 9/3/91 P/s Channakyapuri, New Delhi. He thus committed an offence under section 11 (1) of the CRPF Act 1949 read with rule-27 of CRPF Rules. 1955". ( 2 ) ON the basis of the said charge-sheet the disciplinary proceeding was conducted and ultimately the writ petitioner suffered an order of dismissal appearing at page 24 of the writ petition. The writ petitioner preferred an appeal before the appellate authority which was also dismissed. The writ petitioner thereafter applied for review the order of the appellate authority in the changed circumstances as the charge-sheet was based upon the criminal proceeding wherefrom the writ petitioner has been acquitted by the appropriate criminal court. During the pendency of the review application the writ petitioner approached this Court and his writ petition being C. O. 8856 (W)/1995 was disposed of by a judgment and order dated November 23, 1998 wherein this Court directed to consider the matter afresh on its merits in the light of the order of acquittal passed by the criminal Court. In terms of the said judgment and order dated November 23, 1998 the application for review was considered by the respondent authority and the said application upon consideration was rejected by the concerned authority. Against the said order of rejection, hence, this writ petition. In terms of the said judgment and order dated November 23, 1998 the application for review was considered by the respondent authority and the said application upon consideration was rejected by the concerned authority. Against the said order of rejection, hence, this writ petition. ( 3 ) THIS writ petition started appearing in my list from the month of June 2001 and on 19th June, 2001 said writ petition was called on for the second time when none appeared on behalf of the writ petitioner. Since the writ petition pertains to order of dismissal instead of dismissing the same for default I requested Mr. K. K. Moitra, learned senior counsel who was present in Court, to appear on behalf of the writ petitioner. Accordingly, the matter was adjourned to enable Mr. Moitra, learned counsel to get ready in the matter. This matter was taken up for hearing on 3rd July, 2001 and the hearing is concluded today. This Court records this appreciation for valuable contribution of Mr. Moitra, learned senior counsel in effective disposal of this case. ( 4 ) COMING back to the matter, the moot questions involved in this writ petition, in my view, are as follows: (I)since the copy of the enquiry report which has resulted the order of dismissal has not been served upon the writ petitioner following the Karunakaran's case and Ramjan's case reported in AIR 1991 Supreme Court page 471 and AIR 1994 Supreme Court page 1074 the order of dismissal is liable to be quashed. (ii)since the writ petitioner has already been acquitted in the criminal case whether the second charge is still valid and whether the respondent authority is still entitled to proceed against the writ petitioner on the basis of the second charge. (iii) as to whether the punishment given by the respondent authority is disproportionate having regard to the nature of the charges and more so, because of the order of acquittal in the criminal case. ( 5 ) MR. Moitra, learned counsel, appearing on behalf of the writ petitioner, submits that since the first charge is a minor one which attracts minor punishment and since the second charge is based upon the criminal proceeding in which the writ petitioner has been acquitted following AIR 1999 SC 1416 , the order of dismissal is liable to be quashed. ( 6 ) MR. ( 6 ) MR. Moitra learned counsel, further contended relying on the apex Court decision reported in AIR 2000 SC 1151 that the High Court is not powerless to interfere with the punishment inflicted upon the delinquent employee, if it shocks the conceience of the Court. ( 7 ) MR. Pradip Sen, learned counsel, appearing for the respondent authority, in his usual fairness has conceded that after Karunakaran's case and Ramjan's case the order of dismissal is not tenable and the proceeding should start de novo from the stage of submission of enquiry report. Mr. Sen, learned counsel, further contends, that the acquittal from the criminal proceedding by itself cannot absolve the writ petitioner from the second charge. According to Mr. Sen learned counsel, criminal proceeding and domestic proceeding are not only two different proceedings but also the nature of two proceedings are totally different. ( 8 ) CONSIDERING the above contention it appears to me that the order of dismissal is liable to be quashed on the ground that the copy of the enquiry report was not furnished upon the writ petitioner, although the same was made basis of the order of dismissal. ( 9 ) QUESTION now comes as to what further relief the writ petitioner can get and what further course of action the respondent authority is entitled to take. ( 10 ) SINCE the order of dismissal is liable to be quashed as a consequence thereof the order of suspension which has merged in the order of dismissal will automatically go and the writ petitioner is entitled to consequential monetary benefit for the same. However, since I am quashing the order of dismissal on the ground of non-furnishing of the enquiry report following the apex Court decision in all fitness of things the writ petitioner should be placed under suspension so long the proceeding continue. ( 11 ) WITH regard to the second charge it appears that the judgment and order dated November 23, 1998 has not been appealed from. The learned single Judge directed the revisional authority to consider the fact of acquittal. I quite agree with the contention of Mr. Sen that domestic proceeding and criminal proceeding are of different nature. It is the consistent view prevailing today that two proceedings may run simultaneously. However, on examination of the second charge ex-facie appears that the same is totally based upon the criminal proceeding. I quite agree with the contention of Mr. Sen that domestic proceeding and criminal proceeding are of different nature. It is the consistent view prevailing today that two proceedings may run simultaneously. However, on examination of the second charge ex-facie appears that the same is totally based upon the criminal proceeding. I have examined the judgment of the criminal Court produced before me by the respondent authority. The writ petitioner was acquitted after trial in my view, this is a good piece of evidence and is relevant factor which should have been considered by the revisional authority and now should be considered by the disciplinary authority and to that extent I get support from the decision of the apex Court reported in AIR 1999 SC 1416 . ( 12 ) IN the result the writ petition succeeds. The order of dismissal appearing at page 24 of the writ petition is quashed and set aside. The respondent authority is directed to furnish a copy of the enquiry report to the writ petitioner. The writ petitioner would be under suspension on and from today. The disciplinary authority will proceed in accordance with law by giving ample opportunity to the writ petitioner which he is entitled in law. The disciplinary authority must take into consideration the judgment of the Criminal Court as directed by this Court in C. O. 8856 (W)/1995. The entire proceeding must be completed within a period of four months from date. The question of payment of any subsistence allowance for these four months and the payment of pecuniary benefits on account of arrears would be considered by the respondent authority in accordance with law. W. P. 6893 (W)/1999 is disposed of accordingly. Urgent xerox certified copy of this order, if applied for be supplied to the parties on usual undertaking. Petition disposed of.