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2001 DIGILAW 785 (CAL)

State of West Bengal v. Pratap Roy

2001-12-21

HRISHIKESH BANERJI, TARUN CHATTERJEE

body2001
JUDGMENT Banerji J. : The present writ application is directed against the judgment and order dated August 12, 1998 passed by the West Bengal Administrative Tribunal whereby two applications of the respondent before the Tribunal were disposed of with the' following directions:- "In the final analysis, therefore, the petition in T.A. No. 228 of 1996 succeeds and the impugned order of suspension being Annexure 'A' to the petition is quashed. So far as the other petition being O.A. No. 1323 of 1997 is concerned is also succeeds in part and the impugned final order being Annexure-'A1' is quashed and the concerned disciplinary authority is directed to proceed afresh from the stage indicated in the body of the judgment above. This is to say, the disciplinary authority should furnish a notice to show-cause about the proposed punishment to be imposed annexing a copy of the report of the enquiry officer and thereafter, proceed in accordance with law upon consideration of the reply, if any, received from the petitioner. The entire exercise must be concluded within eight months from the date of communication of this order. Pending conclusion of such proceeding provisional pension as admissible under the rules must be continued to be paid. The unpaid salary and allowances till the date of superannuation must be released within 6 weeks. This judgment and order shall govern both the cases." 2. We are of the view that the order of the Tribunal quashing the suspension of the respondent does not call for any interference inasmuch as there is no provision in the Police Regulation of Calcutta to suspend a Police Officer for his alleged involvement in a criminal case. The respondent is also entitled to get full salaries and allowances during the period of suspension inasmuch as in the absence of any rule for suspension or payment of reduced salaries and allowances during the period of suspension of work, the Tribunal was justified in directing payment of full salaries and allowances during the period of suspension, to the respondent. 3. The second part of the order of the Tribunal regarding the furnishing of a second show-cause notice however, is not sustainable as the Tribunal had given such direction on a misinterpretation of the decision in (1) Ramjan Ali's case reported in 1991 (1) SCC 588 . 3. The second part of the order of the Tribunal regarding the furnishing of a second show-cause notice however, is not sustainable as the Tribunal had given such direction on a misinterpretation of the decision in (1) Ramjan Ali's case reported in 1991 (1) SCC 588 . In the said decision it was held that the Departmental Authority was required to serve a copy of the enquiry report on the charged officer. A copy of the enquiry report was served on the charged officer in the case at hand. The Tribunal insisted on the service of the second show-cause notice overlooking the 1976. Amendment of Article 311 (2) of the Constitution whereunder it was not necessary to give any second show-cause notice giving the charged officer any opportunity of making representation on the proposed penalty. 4. In the case of (2) Managing Director ECIL v. B. Karmakar reported in AIR 1994 SC 1074 also it was held that the delinquent is entitled to get a report of the Inquiry Officer in a departmental inquiry and there is nothing in this decision to suggest that the delinquent is also entitled to a second show-cause notice with regard to the penalty. 5. Accordingly, we set aside the above direction of the Tribunal to the disciplinary authority. 6. The respondent No. 1 while working as a Sub-Inspector of Police in the Fraud section of the Detective Department, Calcutta Police, was suspended on November 21, 1977 for his alleged involvement in connection with Titagarh P.S. Case No. 41 dated November 20, 1977 under Sections 171, 409, 468, 380, 411 and 120B of the Indian Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947. The allegations in the charge against him were that (1) while on 'Law and Order' duty at the Control Room, Lalbazar from 20-30 hours on November 18, 1977 he drew service Revolver No. 36138 along with 12 rounds of ammunition from D.D. Armoury for the purpose of his duty. The allegations in the charge against him were that (1) while on 'Law and Order' duty at the Control Room, Lalbazar from 20-30 hours on November 18, 1977 he drew service Revolver No. 36138 along with 12 rounds of ammunition from D.D. Armoury for the purpose of his duty. But, he did not return the said arms and ammunition after the performance of duty and retained the same with an ulterior motive ; and that (2) although he was booked for 'Law and Order duty from 20-30 hours on November 18, 1977 at the Control Room, Lalbazar, he was absent therefrom without any intimation to or permission from the competent authorities and that (3) on November 20, 1977 at about 11-00 hours he along with four others visited the Jewellery Shop Bharati Bhusan Bhandar of one Sarju Prosad Gupta at Titagarh Bazar and posing himself as one of the officers of the Gold Control Department of Customs searched the shop on the strength of a fictitious search warrant and demanded Rs. 50,000/- from the owner of the said shop in presence of an employee and a customer in the said shop as a result whereof the respondent and his associates were arrested and charged with criminal offence in the above Titagarh P.S. Case No. 41 dated November 20, 1977. 7. In the year 1980, the respondent was also arrested in connection with Bally P .S. Case No. 34 dated November 24, 1980 under Sections 153A/153B/34 I.P.C. The delinquent was acquitted in Titagarh P.S. Case No. 41 dated November 20, 1977 by Judicial Magistrate, 3rd Court, Barrackpore. He was also discharged from Bally P.S. Case No. 34 dated November 24, 1980 by the Judicial Magistrate, 6th Court, Howrah on October 12, 1991 allegedly on a technical ground under Section 196 Criminal Procedure Code. 8. After the disposal of the criminal cases the further proceedings of the enquiry were undertaken but the delinquent on one pretext or the other did not attend the enquiry and as such the enqL1iry was held ex parte. 9. In course of the enquiry the Enquiry Officer examined seven witnesses and admitted certain documents. On completion of the enquiry on March 4, 1997 the Enquiry Officer submitted his report holding that the respondent was guilty of all the charges levelled against him. 9. In course of the enquiry the Enquiry Officer examined seven witnesses and admitted certain documents. On completion of the enquiry on March 4, 1997 the Enquiry Officer submitted his report holding that the respondent was guilty of all the charges levelled against him. The copy of the findings of the Enquiry Authority was sent to the respondent by registered post and March 18, 1997 was fixed for the personal hearing of the respondent who remained absent on that date and also on the adjourned date fixed on March 21, 1997. The final order of dismissal was passed by the D. C. Head Quarters on March 21, 1997. 10. The appeal preferred by the delinquent was dismissed on June 30, 1997 by the Additional Commissioner of Police, Calcutta. 11. Mr. Ghosh, the learned Counsel appearing for the respondent cites the Apex Court decision in the case of (3) Captn. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr. reported in 1999 (82) FLR 627 (Supreme Court). In this case it has been held that there is no bar to simultaneous criminal and disciplinary proceedings but if both are based on the identical facts and evidence the departmental proceedings should not be proceeded with. 12. In the said case the appellant (Captn. Anthony) was a Security Officer of Bharat Gold Mines Ltd. a Government undertaking in Karnataka. In a raid conducted by the police at his, house on June 2, 1985 a mining sponge gold ball weighing 4.5 gms. and 1276 gms. of 'gold bearing sand' were recovered. A criminal case was registered against the appellant who was placed under suspension on 3.6.1985. On the next day a charge-sheet was issued proposing a regular departmental enquiry with regard to the recovery of the above article from his house. The appellant made a representation to the disciplinary authority denying the allegations made against him in the charge sheet and pleaded that the entire episode was a concoction and prayed for postponement of the departmental proceedings initiated against him till the conclusion of the criminal proceedings started on the basis of the FIR i.e. on 2.6.1985. Rejecting the said representation of the appellant the employer informed the appellant that the disciplinary proceedings against him will be held on 1.7.1985. Rejecting the said representation of the appellant the employer informed the appellant that the disciplinary proceedings against him will be held on 1.7.1985. A writ petition was filed by the appellant in Karnataka High Court for restraining the respondent in the said case from proceeding with the disciplinary enquiry till the conclusion of the criminal case. It was disposed of by the High Court on 19.8.1985 issuing a direction to the respondent to consider and dispose of the appellants appeal filed against the order of suspension but liberty was given to the respondent to defer the disciplinary proceedings if it was found expedient so to do. The respondent however, did not defer the disciplinary proceedings and continued the same which the appellant could not attend on account of his ill health and financial difficulties compelling him to shift his home town in Kerala. The respondents were informed by a number of letters from the appellant to stay the departmental proceeding and to await the result of the criminal case but the Enquiry Officer rejected the request and recorded his findings on 10.5.1986 holding the appellant guilty. The disciplinary authority accepted the said findings and by his order dated June 7, 1986 dismissed the appellant from service. The appellant was acquitted in the criminal case on February 3, 1987 with the categorical findings of the concerned criminal, Court that the prosecution had failed to, establish its case. 13. In the said case the Supreme Court allowed the appeal and laid down the following propositions of law regarding simultaneous departmental enquiry and the trial of a criminal case in respect of the self-same allegations:- “(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. (ii) If the departmental proceedings and the criminal case are based, on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. (ii) If the departmental proceedings and the criminal case are based, on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. (iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as' reflected in the charge-sheet. (iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be proceedings cannot be unduly delayed. (v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.” 14. In the above case the departmental proceedings and the criminal trial proceeded simultaneously and before the conclusion of the criminal trial the charged employee was dismissed on the conclusion of the departmental proceeding. In the case in hand the departmental proceeding remained stayed during the criminal trial and after the respondent was acquitted and discharged in the criminal trials the departmental proceeding was held with notice to the respondent who did not attend the departmental proceeding although he was given notice of the hearing of the departmental proceeding. 15. Mr. Ghosh had drawn our attention to the observation of the Supreme Court in 1999 (82) FIR 627 (Supreme Court) (supra), that where the whole case of the prosecution was thrown out and the appellant was acquitted by a judicial pronouncement with the findings that the raid and recovery at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand. 16. 16. But, the present case is clearly distinguishable from the case cited above. In the cited case the charged employee was acquitted with the categorical findings that the prosecution had failed to establish its case. 17. In the case at hand the criminal Court at Barrackpore acquitted the respondents giving him the benefit of the doubt and the criminal Court at Howrah discharged the charged officer in the case against him for alleged commission of offences under Sections 153A/153B/34 I.P.C. for noncompliance of the provisions of Section 196 of the Criminal Procedure Code which bars prosecution without previous sanction of certain Authorities named in the section. 18. Be that as it may, the departmental enquiry in the present case was held after the conclusion of the criminal trial. It is found that after the conclusion of the criminal trial the respondent did not appear before the Enquiry Officer in spite of several letters written to him asking him to appear before the Enquiry Officer and as he failed to appear, the enquiry proceeded ex parte. We find no justification for the respondent to remain absent during the enquiry before the Enquiry Officer even after the conclusion of the criminal trials. 19. In such circumstances we are of the view that the facts of the present case are clearly distinguishable from those in the cited case viz. 1999 (82) FIR 627 (Supreme Court) (supra). 20. In view of the above findings the order of the Tribunal quashing the order of dismissal of the respondent as also its order for continuation of the disciplinary proceedings by issuing a notice to show-cause about the proposed punishment are set aside. 21. If any amount, such as salary and allowances during the period of suspension have not been paid the respondent should be paid the same within a period of three months from date. 22. The writ application is allowed. All interim orders' stand vacated. No order as to cost. Xerox certified copy of the order, if applied for, be supplied expeditiously. Chatterjee; J. : I agree.