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2003 DIGILAW 256 (CAL)

Sk. Mentu v. State of West Bengal

2003-05-19

Bhaskar Bhattacharya

body2003
JUDGMENT Bhaskar Bhattacharya, J. By this writ application, the writ petitioner, a peon of the Judges Court at Midnapore, has challenged the order dated February 12, 1992 passed by the disciplinary authority, the learned District Judge, Midnapore in departmental proceeding Case No. 1/April, 1991 passing an order of compulsory retirement under Clause VI of Rule 8 of West Bengal Services (Classification, Control and Appeal) Rules, 1971. 2. On the basis of complaint made by local residents of Colonelgola against the petitioner who was then attached to the 3rd Court of Assistant District Judge, Midnapore an enquiry was initiated by the order of the District Judge, Midnapore in obedience to this Court's direction (vide No. 10739 IJO dated 26/10/90). Accordingly, Additional District Judge, 1st Court, Midnapore held an enquiry to the allegations and submitted a report which was sent to this Court by the District Judge. Under the direction of Inspecting Judicial Officer, High Court, contained in letter dated December 19, 1990, a departmental proceeding was initiated against the petitioner and the Additional District Judge, 4th Court, Midnapore was appointed as Enquiring Authority. The article of charge framed against the petitioner is quoted hereunder : ''You, Sri Sk. Mentoo, Peon attached to the Court and office of the Assistant District Judge, 3rd Court, Midnapore, during June, 1990, during a considerable period prior to June, 1990 and till towards the end of the year 1990, at your residence at Colonelgola of Midnapore town, personally and/or through your sons displayed blue films through Video Shows to outsiders and during the same period and at the same place you consorted illicitly with women and engaged women to treat outsiders and thus behaved in a manner which is improper and unbecoming of a public servant and derogatory to the prestige of the Government. And you have thereby violated Rule 4 of the West Bengal Govt. Servants' Conduct Rules, 1959, which is punishable in terms of Rule 8 of the West Bengal Services (Classification, Control and Appeal) Rules, 1971, and I hereby charge you accordingly. District Judge, Midnapore. (Disciplinary Authority) 24-04-91” 3. And you have thereby violated Rule 4 of the West Bengal Govt. Servants' Conduct Rules, 1959, which is punishable in terms of Rule 8 of the West Bengal Services (Classification, Control and Appeal) Rules, 1971, and I hereby charge you accordingly. District Judge, Midnapore. (Disciplinary Authority) 24-04-91” 3. The petitioner filed written statement of defence thereby denying the said charge and his defence may be summarized thus:- a) The charge stated in Article of the charge was out and out false, imaginary, fabricated and motivated one only with a view to grab the job of the employee and to put his family in starvation which will fulfill the grudge of local antisocial people. b) The petitioner had never any Video set including VCR, V.CP or any kind of video cassettes and as such, the question of exhibition of blue films to the outsiders in his house was false and concocted story or collection of women and any illicit deal with them was another fabricated story. c) Although, "show cause" was answered by the petitioner at the time of preliminary enquiry and the learned Additional District Judge, 1st Court, Midnapore was pleased to examine witnesses in the absence of delinquent, as those were not supplied to the petitioner, he did not get any chance for adducing any evidence of rebuttal. d) The petitioner's house is situated in a thickly populated area and the same is within ¼km. from the Sadar Police Station but no one ever lodged any complaint before the local police station alleging exhibition of blue film or violation of Cinema Autography Act. The absence of any prosecution by police authority proved that such allegation was a motivated one. e) The petitioner was never detained in police custody for giving marriage of an woman with an old person or any allegation to that effect was a false, frivolous and imaginary one. The absence of any prosecution by police authority proved that such allegation was a motivated one. e) The petitioner was never detained in police custody for giving marriage of an woman with an old person or any allegation to that effect was a false, frivolous and imaginary one. f) All the persons who made allegations against the petitioner and his sons are addicted to alcohol and in the day time some of them used to pull rikshaws and in the night used to carryon a business of illicit liquor and such activity was opposed by the petitioner and his sons on several occasions, as a result, one day they formed an unlawful assembly and gheroad the petitioner and his sons and collected his signature on a blank paper and threatened him that he and his sons would be required to leave the locality to facilitate their business of illicit liquor in the long run. They had also threatened that if the petitioner informed any local authority he and his sons would be murdered. 4. At the time of disciplinary proceeding before the Additional District Judge, 4th Court, Midnapore, almost all the 55 witnesses examined by prosecution have repeated the same version that although the petitioner was previously a bad man, subsequently he had mended himself and had been leading a normal life and the witnesses had no grievance whatsoever against him at that moment. Some of the witnesses had said that although previously the petitioner was not in the right track but he had since changed himself and had been leading a normal life and the witnesses had no grievance. 5. Witness No. 53 has stated that he had nothing to say against the petitioner at that moment since he had mended himself. In cross-examination he had stated that he knew that Sajahan was not a good type of person. He came to learn that the younger brother of Sajahan entered into the house of one Sk. Sekendar Khan at 2 a.m. on the pretext to teach the children of that house and the petitioner raised alarm. On the said grudge, Sajahan informed the people of Municipality who cut down three coconut trees and one champak tree of the petitioner. He had further admitted that he never saw the petitioner to exhibit video show within his house at night. He has further stated that Sajahan and Mr. Fadmo Sk. On the said grudge, Sajahan informed the people of Municipality who cut down three coconut trees and one champak tree of the petitioner. He had further admitted that he never saw the petitioner to exhibit video show within his house at night. He has further stated that Sajahan and Mr. Fadmo Sk. deposed falsely out of grudge. 6. Witness No. 49, viz Karim Khan has however, stated that the petitioner was a rowdy in the locality and used to indulge in quarrel with others. He has further asserted that even then the petitioner maintained his earlier attitude and showed his anger to many persons of the locality. In his cross-examination he has admitted that his name is Bura and he is the younger brother of Sajahan Khan. He has denied that he went to room of wife of Sekendar Khan at 2 a.m. by scaling the wall or that he was found in naked position with the wife of Sekendar's brother or that he was apprehended by the petitioner or he had got enmity with the petitioner on that issue. 7. The witness No. 33, Md. Reja Murshad has stated that he had nothing to say against the petitioner at the time of deposition since he had not been indulging in previous affairs like exhibition of blue films and involvement in the matter of women. In cross-examination, however, he had admitted that there was an incident of involvement of Bura Khan with the wife of Sekendar Khan in the locality. He has further admitted that house of the petitioner is within a distance from the three feet from the house of Sekendar and he did not know if the petitioner and his wife raised alarm and thereafter the people of the locality assembled. 8. The Enquiring Officer ultimately came to the conclusion that the evidence of the witnesses had established the charge against the delinquent that he indulged in exhibiting blue films and involved in the affairs with women at the material time. According to the Enquiring Officer it was not a matter of consideration as to whether the delinquent had for the time being leading a normal life after the commission of the offence. According to the Enquiring Officer it was not a matter of consideration as to whether the delinquent had for the time being leading a normal life after the commission of the offence. According to such authority, the allegations of exhibiting of blue films in the residence of the delinquent and his being involved in the affairs of women were really unbecoming of a Government servant and, as such, the petitioner had violated the provision of Rule 4 of the West Bengal Government servant's Conduct Rules, 1959 for which he is punishable in terms of Rule 8 of the West Bengal Services (Classification, Control and Appeal) Rules, 1971. 9. On the basis of such report of the Enquiring Authority, the learned District Judge found him guilty and passed an order of compulsory retirement. 10. There is no dispute in this case that on the basis of the aforesaid allegations by the people of the locality, no police case had been initiated against the petitioner although the alleged act on the part of the petitioner and his sons was offence within the meaning of section 292 of the Indian Penal Code and section 3 of the Immoral Traffic (Prevention) Act, 1956. There is also no dispute that the alleged charge is in no way connected with the duty of the petitioner as a Government Servant and such act was not done in course of his duty as Government Servant. 11. From the above fact, a pure question of law arises for determination in this writ application as to whether on the basis of the charge which is otherwise a criminal offence within the meaning of Indian Penal Code or any other statute, the employer was justified in enquiring into the allegation and found him guilty before trial of the petitioner in accordance with the provision contained in the Code of Criminal Procedure. It is apparent that the petitioner has been punished for violation of Rule 4 of West Bengal Government Servants' Conduct Rules, 1959. The aforesaid rule is quoted hereunder : "Rule 4. Improper and unbecoming conduct.-No Government servant shall behave in a manner which is improper and unbecoming of a public servant and derogatory to the prestige of the Government. It is apparent that the petitioner has been punished for violation of Rule 4 of West Bengal Government Servants' Conduct Rules, 1959. The aforesaid rule is quoted hereunder : "Rule 4. Improper and unbecoming conduct.-No Government servant shall behave in a manner which is improper and unbecoming of a public servant and derogatory to the prestige of the Government. Explanation.-Any Government servant who takes part in a demonstration of any kind in a public street which interferes with the movement of people or traffic or involves any other offence, shall be deemed to be behaving in a manner which is improper and unbecoming of a public servant and derogatory to the prestige of the Government." 12. There is no dispute that if the charges alleged against the petitioner are proved then such misconduct comes within Rule 4 of West Bengal Government Servants' Conduct Rules, 1959. But the question is once such charges amount to an offence punishable under Indian Penal Code and the Immoral Traffic (Prevention) Act, whether the employer is entitled to adjudicate such charges and find the petitioner guilty in the absence of any criminal proceeding initiated in accordance with the provisions contained in the Code of Criminal Procedure. 13. Mr. Molla, the learned counsel appearing on behalf of the State by relying upon the decision of the Supreme Court in the case of Nelson Motis vs. Union of India & Anr., reported in AIR 1992 SC 1981 , vehemently contended that an employer is not bound by the decision of a Criminal Court and notwithstanding pendency of a criminal case, an employer is free to proceed with the departmental proceeding on the selfsame allegation. Mr. Molla further contends that even if an employee is acquitted in a criminal case, such verdict is not binding upon the employer and notwithstanding such acquittal, the employer can take appropriate action against an employee. Therefore, absence of any criminal prosecution, Mr. Molla continues, cannot stand in the way of the employer in proceeding with the departmental proceeding; 14. After hearing the learned counsel for the parties and after going through the aforesaid decision, I am of the view that the principles laid down in the said decision cannot have any application to a case where the alleged misconduct is in no way connected with an employee's duty in course of employment. After hearing the learned counsel for the parties and after going through the aforesaid decision, I am of the view that the principles laid down in the said decision cannot have any application to a case where the alleged misconduct is in no way connected with an employee's duty in course of employment. It is true that if in course of employment or otherwise an employee commits any act which is an offence against property or person of the employer or any of his co-employees, the employer is entitled to make separate investigation in addition to the regular criminal proceeding initiated by State. For instance, if allegation of misappropriation of employer's money is alleged or allegation of assault on any other co-employee in course of official duty is alleged, in such a case, the employer is free to initiate departmental proceeding notwithstanding the fact that conduct is also an offence within the definition of Indian Penal Code; but in a case, where the alleged misconduct, although an offence under Indian Penal Code, has nothing to do with the employment of the employee and not done in course of employment and at the same time, such offence is not committed either against the property or person of the employer or any co-employee, such an allegation must be proved in accordance with the provisions contained in the Code of Criminal Procedure. Ultimately, if the competent Court finds the employee guilty of such offence and the employee is convicted, such finding of guilt and imposition of punishment is a ground for taking disciplinary proceeding against the petitioner and consequently, the employee may be proceeded against departmentally. But in such a case, an employer has no authority to investigate the alleged crime which is within the sole jurisdiction of the competent Criminal Court within the meaning of Code of Criminal Procedure. In this connection reference was may be to the provisions contained in section 4 of the Code of Criminal Procedure which are quoted below :- "Section 4. Trial of offences under the Indian Penal Code and other laws.-(1) All offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. Trial of offences under the Indian Penal Code and other laws.-(1) All offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." 15. Thus, in this case, it was the duty of the inhabitants of the locality to lodge appropriate complaint before the authority mentioned in the Code of Criminal Procedure and such allegation was required to be proved before an appropriate criminal court. If the petitioner was ultimately found guilty, in such a case, the employer was free to dismiss him even without initiating any departmental proceeding simply on the basis of conviction by a competent Court [See Rule 11(1)(i) of West Bengal Services (Classification, Control and Appeal) Rules, 1971] but in the absence of any such finding by a competent Court, the employer cannot usurp the responsibility of adjudicating such offence. If I accept the contention of Mr. Molla, then I am also to hold that an employer is free to adjudicate even the allegation of murder and rape and can take disciplinary action against an employee after finding him guilty of those offences although, no proceeding has at all been initiated in the competent Criminal Court on those allegations. 16. I, thus, hold that in this case, the High Court Administration had no business to direct the District Judge to initiate disciplinary proceeding against the petitioner on the allegation of the outsiders which had no connection with his official duty. The High Court Administration at the most could advise those persons to lodge criminal case against the petitioner in accordance with the Code of Criminal Procedure. Similarly, the learned District Judge as disciplinary authority acted without jurisdiction in accepting the report of the Enquiring Authority who held that the petitioner was guilty of the offence alleged. 17. Even on the basis of evidence adduced before the Enquiring Authority, in my view, it was impossible to arrive at a finding that the allegation against the petitioner of exhibition of blue film and indulging in immoral activity with the women had been proved. 17. Even on the basis of evidence adduced before the Enquiring Authority, in my view, it was impossible to arrive at a finding that the allegation against the petitioner of exhibition of blue film and indulging in immoral activity with the women had been proved. None of the witnesses could disclose the date of the exhibition of the blue film; neither could anybody disclose even the name of any such woman involved nor was any video appliance or woman recovered from the custody of the petitioner. At the same time, none of the witnesses dared to assert that he was present in the house of the petitioner when those alleged illegal activities were carried on. On the basis of vague allegation that previously the petitioner indulged in those activities but now he has come to normal life, the alleged misconduct cannot be proved. 18. I, thus, find that the learned District Judge acted without jurisdiction in passing the order of compulsory retirement on the basis of the enquiry which was not in conformity with law. The punishment of compulsory retirement is thus set aside. The petitioner should be held to be all along in service with full pay. Although Mr. Maity, the learned Advocate appearing on behalf of the petitioner, tried to point out various other irregularities even in course of disciplinary proceedings such as non-submission of copy of the report, evidence etc., in view of my finding that the initiation of disciplinary proceeding was itself without jurisdiction, I have not entered into those questions. 19. In the facts and circumstances, there will be, however no order as to costs. Appeal allowed.