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2002 DIGILAW 509 (CAL)

Nilanjana Ghosh v. State of West Bengal

2002-07-31

Bhaskar Bhattacharya

body2002
JUDGMENT Bhaskar Bhattacharya, J. By this writ application, the writ petitioner, the heir of an Assistant Public Prosecutor who died-in-harness, has prayed for direction upon the respondents to release pensionary benefit and other entitlements available to the deceased employee. 2. Mr. Dutta, the learned counsel appearing on behalf of the respondent has taken a preliminary objection as regards maintainability of the writ application by pointing out that appropriate remedy of the petitioner lies by filing proceedings before State Administrative Tribunal constituted under Administrative Tribunal Act, 1985 ("Act"). 3. Mr. Dutta submits that an Assistant Public Prosecutor cannot be said to be an officer or servant of Supreme Court or High Court or Court subordinate thereto within the meaning of section 2(c) of the Act and as such the petitioner cannot claim exemption from the operation of the Act. 4. Mrs. Maity, the learned counsel appearing on behalf of the petitioner has however submitted that an Assistant Public Prosecutor is really an officer of the Chief Judicial Magistrate for the purpose of assisting the court in dispensing with justice and as such should be treated to be an officer of such court. Mrs. Maity thus submits that this case comes within section 2(c) of the Act. 5. Therefore, the preliminary question that arises for determination in this application is whether an Assistant Public Prosecutor appointed under section 25 of the Code of Criminal Procedure is an officer or servant of the Courts subordinate to High Court. 6. It is pointed out by Mr. Dutta that the deceased was appointed by the State Government and the Chief Judicial Magistrate or the District Judge was not the appointing authority. Mr. Dutta further submits that the District Judge or the Chief Judicial Magistrate has no power to initiate disciplinary proceedings against an Assistant Public Prosecutor, if occasion so demands. In such a situation, Mr. Dutta continues, the Legal Remembrancer will initiate such proceeding and the Assistant Public Prosecutor will be answerable to the Legal Remembrancer. 7. After hearing the learned counsel for the parties and after going through the materials on record, I am of the opinion that an Assistant Public Prosecutor appointed under section 25 of the Code of Criminal Procedure is a Government employee and as such this writ application for realisation of dues of such employee should be moved before the State Administrative Tribunal created under the Administrative Tribunal Act, 1985. A person can be said to be an officer or servant of the courts subordinate to High Court only if it is established that the learned District Judge is under obligation to supervise his activities and that such person works under the control of the learned District Judge. The District Judge must have power of superintendence over such officer or servant in course of his employment including power to take disciplinary actions. An Assistant Public Prosecutor appointed under section 25 of the Code of Criminal Procedure is not such a person. 8. I thus find substance in the preliminary objection raised by Mr. Dutta. 9. The writ application is thus dismissed on that ground alone. I make it clear that I have not gone into the merit of this case. 10. No order as to costs. Writ application dismissed.