Research › Search › Judgment

Calcutta High Court · body

2007 DIGILAW 441 (CAL)

BISWANATH HAZRA v. STATE OF WEST BENGAL

2007-06-20

KALYAN JYOTI SENGUPTA, MANIK MOHAN SARKAR

body2007
( 1 ) NONE appears for the respondents when the matter was called on for hearing. ( 2 ) IT is a matter of 2005 and it is a case of dismissal from services. On 19th september, 2004 direction for filing affidavit was given. On 16th February, 2006 department noted that no affidavit-in-opposition has been filed. The learned counsel for the petitioner submits that a copy of affidavit-in-opposition has been supplied to him and he has made affidavit-in-reply ready. ( 3 ) WHEN there is no appearance on behalf of the respondents nor they file any opposition, we can* take up the matter for hearing. In our view, at this stage no such affidavit is required as all facts have already been placed before the learned Tribunal and relevant documents have been annexed to this application. Therefore, it hardly matters whether this Court gets any opposition or not. ( 4 ) THE brief fact of the case is that the petitioner joined service as a constable in or about October, 1971. Inapril, 1987 while he was posted at Noapara Police station, a police case was started against the petitioner being Noapara PS case No. 3 dated 4. 4. 87 under section 448/354/376 of IPC. On investigation charge was framed and the petitioner was proceeded with before the regular criminal Court and the regular Criminal Court acquitted the petitioner and found him not guilty of the charge under section 376 of the IPC levelled against him and thereafter he was discharged. ( 5 ) IT appears from the judgment of the 10th Additional Sessions Judge, Alipore 24-Parganas that the trial was conducted under section 376 of IPC and not any other counts. It further appears from the judgment that there were 12 witnesses including police officers. The PW. l, de facto complainant was declared hostile and she denied in her evidence that she was raped by the accused. The learned judge recorded that there was no eye-witness apart from the de facto complainant. After acquittal from the aforesaid charges, the petitioner was proceeded with departmentally with the following charges: " (1) While, attached to Noapara Police Station, District (North) 24-Parganas, on 1. 4. 87, 2. 4. 87, 3. 4. 87 around midnight, you surreptitiously visited the residential quarter of SI S. S. Chairit, 0/c Noapara PS without his permission and any authority. After acquittal from the aforesaid charges, the petitioner was proceeded with departmentally with the following charges: " (1) While, attached to Noapara Police Station, District (North) 24-Parganas, on 1. 4. 87, 2. 4. 87, 3. 4. 87 around midnight, you surreptitiously visited the residential quarter of SI S. S. Chairit, 0/c Noapara PS without his permission and any authority. You called Kumari Asha Baidya (aged 14 years) d/o Bhirendra Nath Baidya, village Malangapara, PS Swarupnagar, district (North) 24-Parganas the maid servant of the said 0/c and compelled her under threat to open the main entrance of the quarter. Then you entered into her bed room and outraged her female modesty under threat and allurement. (2) You, again, on the midnight of 4. 4. 87 entered into the quarter of SI S. S. Chairit, 0/c Noapara PS without her permission and lay on the bed of kumari Asha Baidya, the maid servant of SI S. S. Chairit along with her. Thereby, you developed an illicit relationship with her. Specific case vide noapara PS case No. 3 dated 4. 4. 87 under section 448/354/376 IPC was started against you on the complaint of Kumari Asha Baidya. As a result, you were arrested and forwarded to Court on 4. 4. 87. " ( 6 ) THE petitioner replied to the said charges denying all allegations. An enquiry offcer was appointed to enquire into the charges. ( 7 ) THE said victim girl was also cited as one of the witnesses, and that apart, other police officials and constables were cited as witnesses in the departmental proceedings along with G. D. entey, FIR report of Sri S. R. Paul dated 3. 1. 91 and the petition dated 17th November, 1987 of Asha Baidya. ( 8 ) AFTER taking evidence and analysis thereof, the enquiry officer came to the following findings: "a. Regarding Charge No. l. The only witness of this charge is PW. 1 who too turned hostile and because of the compelling social condition she submitted a prayer to the D. M. North 24-Parganas for withdrawal of the case. Hence, this charge of trespass and outraging of female modesty could not be proved beyond doubt for the period of 1. 4. 87 to 3. 4. 87. B. Regarding Charge No. 2. The trespass of the house of OC Noapara PS on the night of 4. 4. 87 is proved beyond doubt. Hence, this charge of trespass and outraging of female modesty could not be proved beyond doubt for the period of 1. 4. 87 to 3. 4. 87. B. Regarding Charge No. 2. The trespass of the house of OC Noapara PS on the night of 4. 4. 87 is proved beyond doubt. The chargesheet submitted against the delinquent constable vide chargesheet No. 56 dated 17. 6. 88 under section 448/354/376 IPC based on all the evidence like the seizure list, the FSL report. Thus charge of outraging of the female modesty and committing rape upon Kumari Asha baidya who was 14 years old at that time and hence as per record and as per law incapable of giving consent to voluntary sexual intercourse is also proved beyond doubt. C. The charge of moral turpitude is also proved beyond doubt. " ( 9 ) THE aforesaid report of the Enquiry Officer has been accepted and the petitioner was dismissed from services challenging the order of dismissal, the petitioner preferred an appeal before the appellate authority against the dismissal order. The said appeal was disposed of by the respondent No. 4 on 30. 3. 04 by rejecting the said appeal of the petitioner. Thereafter, the petitioner approached the learned Tribunal whose judgment is impugned in this application. The learned Tribunal found that the charges have been proved with the standard of preponderance of probabilities and it was held by the learned Tribunal that the acquittal from the criminal charges does not disentitle the employer to proceed departmentally even after acquittal. ( 10 ) THE learned Counsel for the appellant contends that the charges in the departmental proceedings are almost same with those charges levelled in the criminal proceeding. Therefore, the respondents ought not to have been proceeded with departmentally. He further contends that the key witness, namely, the victim girl came before the Enquiry Officer, she disproved the charges levelled against the employee. In fact, there has been no evidence to record any findings of misconduct as has been done by the Enquiry Officer. It is found by the Enquiry Officer as far as charge No. l is concerned, that it has not been proved. Whereas the charge No. 2 is said to have been proved and such charge also covers the charge No. l substantially. It is found by the Enquiry Officer as far as charge No. l is concerned, that it has not been proved. Whereas the charge No. 2 is said to have been proved and such charge also covers the charge No. l substantially. He further contends that while recording "guilty of charges", the Enquiry Officer had relied on two important documents which were never supplied nor any opportunity was given to the petitioner to have or deal with those documents. As such, the said findings are vitiated with illegality, as it violates the principle of natural justice. According to him, no reasonable prudent man would come to such a findings. He further contends that the learned Tribunal ignored the aforesaid circumstances and, in fact, has mechanically accepted whatever has been recorded by the enquiry officer as well as the disciplinary authority. The learned tribunal has not also considered the question of proportion of punishment inflicted upon him. It was not open to initiate a disciplinary proceeding in relation to an incident which took place in the year 1987. Therefore, the impugned order of the learned Tribunal affirming the dismissal order of the respondents must be set aside. ( 11 ) THE contention of the learned Counsel that on the self-same charges the departmental proceedings ought not have been initiated, is not acceptable to us, as it is settled position of law that even after acquittal in criminal proceedings, the departmental proceedings can be proceeded with as the standard of proof in the criminal trial is beyond reasonable doubt, whereas in case of departmental proceeding the standard of proof is preponderance of probability. In that view of the matter, any accusation or any involvement of criminal action may not be accepted or entertained by the employer. The master and servant relationship stands naturally on the question of trust, confidence and integrity of the employee. Any act or omission of employee in any manner whatsoever eroding confidence of employer in the honesty, integrity, sobriety of the employee, may call for disciplinary action. Therefore, in the instant case the above proposition of law cited above cannot be accepted. In this case factually the trial was proceeded under section 376 of IPC, whereas, the domestic proceedings was initiated on the charges amongst other of outraging of the woman modesty, trespass and also lack of integrity. Therefore, in the instant case the above proposition of law cited above cannot be accepted. In this case factually the trial was proceeded under section 376 of IPC, whereas, the domestic proceedings was initiated on the charges amongst other of outraging of the woman modesty, trespass and also lack of integrity. It cannot be said that the criminal trial and the domestic charges stand on the same footing though the sources of two proceedings emanates from the same incident. Accordingly, we hold that initiation of domestic proceedings was justified even after acquittal of the trial. ( 12 ) BUT, then question crops up as to whether the recording of guilt of the appellant by the Enquiry Officer has been rendered in accordance with the established principle of law or not. It is true that the standard of proof would be that of the preponderance of probability. Preponderance of probability does not mean that without any acceptable evidence the assessment would be made by the Enquiry Officer. We have noted the findings of the Enquiry Officer. We have also considered the submissions of the learned Counsel for the appellant. We find that the findings of the enquiry is inconsistent. In first paragraph the enquiry Officer has recorded. "hence this charge of trespass and outraging of female modesty could not be proved beyond doubt for the period of 1. 4. 87 to 3. 4. 87. " But trespassing on 4th April, 1987 is proved beyond doubt. The Enquiry officer, as rightly pointed out, has relied on the chargesheet dated 17th June, 1988 under section 448/354/376 IPC, seizure list and also FSL report which were not supplied to the petitioner. Such factum of non-supply of documents is also admitted in the rejoinder of the respondent. So, while recording guilt of the aforesaid charges, the Enquiry Officer has relied on some extraneous materials without affording any chance to the applicant to contest the same. The Enquiry Officer found that charge of outraging of female modesty and committing rape to Kumari Asha Baidya at that time was proved. ( 13 ) WE are of the view that evidence on records relied before the learned sessions Judge cannot be relied on in this proceedings, as the same were not mentioned in the chargesheet. The learned Trial Court has found that there has been no rape. ( 13 ) WE are of the view that evidence on records relied before the learned sessions Judge cannot be relied on in this proceedings, as the same were not mentioned in the chargesheet. The learned Trial Court has found that there has been no rape. Moreover, in the departmental proceedings charges of rape was not levelled, and the charge of female modesty was the only grave charge. ( 14 ) NOW, the question is who can prove all these facts. According to us, it is the victim girl to prove. The alleged victim girl recorded her testimony before the Enquiry Officer. Her entire statement recorded therein is as follows: "i Smt. Asha Mondal formerly Asha Baidya was working in the house of officer-in-Charge of Noapara Police Station. I worked there for about two years. I do not know reading or writing. One day the Officer-in-Charge told rne to sign a piece of paper on which something was written. He also told me how to sign my name. I was not told what was written on the paper. I had seen the charged constable when he was posted at Noapara P. S. I have no allegation to make against him and he has not misbehaved with me. The charged constable declined to cross-examination. " ( 15 ) IT is thus clear that the said girl in no uncertain terms has made clear that she had no allegation against him and the charged constable has not misbehaved with her. She further stated that she signed a piece of paper on which something was written at the request of the then master/officer-in-Charge. She did not and could not read or write anything else. ( 16 ) THE next question comes regarding the statement of Inspector, S. S. Chairit who was the then OC. In his evidence, he has found that on that day the charged constable was sitting on the cot in the room of the victim girl and he was wearing only his underwear and his other apparel was lying in the room. Therefore, his evidence, if it is accepted, is to the extent that the charged constable was found inside the room of the said victim girl. He said that this charged official had entered into the room without permission of anyone else. Therefore, his evidence, if it is accepted, is to the extent that the charged constable was found inside the room of the said victim girl. He said that this charged official had entered into the room without permission of anyone else. This testimony is simply unacceptable for the reason unless the girl allowed the entry of the man, he could not remain sitting there. ( 17 ) THEREFORE, we conclude that the Enquiry Officer's findings of guilt of the delinquent constable is perverse. ( 18 ) THE learned Tribunal unfortunately did not examine in detail as to whether there has been any proof or not. Sufficiency or insufficiency of the evidence in the disciplinary proceeding is not the criteria. But, no doubt a reasonable degree of quality of evidence, namely, whether statement taking its face value can probably prove misconduct or not is the only germane in the disciplinary proceedings, and it is the standard one has to follow. Both the enquiry Officer and the disciplinary authority have to follow this minimum standard and no doubt in our mind everyone at every stage has proceeded blindly and without any application of mind and that resulted in unlawful victimization of the applicant. It is not the case of any one nor it is suggested that the victim girl was influenced by the charged official and on the matter she remained in custody or under care or employment of the OC concerned. Therefore, there was no question of influencing her by charged constable. Even when she could not prove anything else, no attempt was made to suggest by the side of the administration to sustain her evidence. In order to find out the sustainability of her evidence, we have considered evidence given before the regular Court and we found that there was no proof and no attempt was made to cross-examine her by the prosecution or anyone else. ( 19 ) TAKING totality of the case we feel that the learned Tribunal has not done justice to the appellant, hence the impugned order of the learned Tribunal is liable to be set aside and the same is set aside. Order of punishment passed by the disciplinary authority and affirmed by the appellate authority is hereby set aside. ( 20 ) PETITIONER shall be reinstated in the services. Order of punishment passed by the disciplinary authority and affirmed by the appellate authority is hereby set aside. ( 20 ) PETITIONER shall be reinstated in the services. Soon thereafter he shall be paid 50 per cent of the back wages and all consequential benefits has to be given as if he were in service. ( 21 ) WE have no doubt in our mind that the police constable was proceeded vindictively and without any evidence whatsoever. ( 22 ) PETITIONER is entitled to receive costs assessed at Rs. 6,000/- and that cost should be paid by the respondent authority. Petitioner shall be reinstated in the service within seven days from the date of communication of this order. ( 23 ) URGENT xerox certified copy of this order be given to the parties, if applied for. Appeal allowed.