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2007 DIGILAW 523 (CAL)

Safiqul Islam v. STATE OF WEST BENGAL

2007-07-16

KALYAN JYOTI SENGUPTA, MANIK MOHAN SARKAR

body2007
Judgment :- (1.) IT is recorded that despite direction and service of this application and recording appearance on behalf of the State at earlier point of time and despite further direction being given neither affidavit-in-opposition has been filed nor any one comes to oppose this application on behalf of the State. (2.) THIS application has impugned the order of the learned Tribunal which has upheld the order of dismissal of the applicant from service short fact, leading to filing of this case, is stated hereunder:-The applicant, at the relevant point of time, was a Sub-Inspector of Police and acting as Officer-in-Charge at Alipurduar, Government railway Police Station. In course of his duty, on or about 24th of January, 2003, he was charge-sheeted with the following charges: " (i) "while the applicant was attached to Alipurduar in GRPS as O.C. of Alipurduar GRPS on 20.12.02 at 20.00 hrs. one Head Constable atul Chandra Barman informed S.I. Monojit Sarkar at the said GRPS regarding arrest and custody of one person caught with ganja and four other persons for ticketless travel in the Railway compartment and as those five persons were arrested but the applicant released three persons from the GRPS including person charged carrying with ganja and remaining two persons namely -(1) Monindra Nath Debnath and (2) Kalapahar Debnath of Assam-were taken into custody and started grps Case No. 16/02 dated 2p. 12. 02 under Section 20 (b) NDPS Act read with Section 137 of the Indian Railways Act against them on the basis of complaint of the said HC/atui Chandra Barman showing seizure of the ganja from their possession; (ii) The applicant let off three other accused persons without observing any formality, as required by law which indicate mala fide action of the applicant; and (iii) The applicant briefed the said H/c Atul Chandra Barman and constable-Bhabesh Roy to make false statements to the superiors regarding the number of persons arrested from Dn. B.P. Mail on the charge of carrying ganja to match concoction made in the FIR". " (3.) THE applicant duly replied to the said Memorandum of Charges denying all the allegations. So enquiry followed by appointment of an Enquiry officer. It is an admitted position that the applicant participated in the proceedings, held by the Enquiry Officer, and adduced evidence. Similarly, evidence, both oral and documentary, was adduced on behalf of the department concerned also. " (3.) THE applicant duly replied to the said Memorandum of Charges denying all the allegations. So enquiry followed by appointment of an Enquiry officer. It is an admitted position that the applicant participated in the proceedings, held by the Enquiry Officer, and adduced evidence. Similarly, evidence, both oral and documentary, was adduced on behalf of the department concerned also. Enquiry Officer, after analyzing the evidence adduced before him, has found him guilty of all the charges. The disciplinary authority, namely, superintendent of Police, Government Railway Police, Siliguri accepted the report of the Enquiry Officer and having concurred with the findings, issued show-cause notice to the applicant asking as to why he should not be dismissed from service. At this stage the applicant approached the learned tribunal with the relief for quashing the first charge-sheet, enquiry report as well as the second show-cause notice. (4.) THE learned Tribunal entertained the application on 27th of June, 2003 and on that date passed an order of status quo and fixed the next date of hearing for admission and interim relief on 23rd July, 2003. This order of status quo was communicated by a letter dated 27th June, 2003 to the superintendent of Railway Police, Government Railway Police, Siliguri (hereinafter referred to as the Disciplinary Authority) on whose behalf the said letter was received on 28th of June, 2003. (5.) THE applicant also, on receipt of the second show-cause notice, reminded by a letter dated 29th June, 2003 that order of status quo, was passed, and the same was to remain effective till 23rd July, 2003. By his letter the applicant also asked for giving him a chance so that he could give a suitable reply. The Superintendent of Police, despite receipt of the said letter, issued the impugned order of dismissal. The aforesaid fact of breach of status quo order was drawn to the attention of the learned Tribunal initiating contempt application, however, learned Tribunal held there is no contempt as the order of status quo was not drawn to the attention of the Disciplinary authority. The aforesaid fact of breach of status quo order was drawn to the attention of the learned Tribunal initiating contempt application, however, learned Tribunal held there is no contempt as the order of status quo was not drawn to the attention of the Disciplinary authority. Although the order refusing to draw up contempt proceeding is not challenged before us but we are constrained to observe, while examining the legality and validity of the final order of punishment, that the aforesaid order of punishment is null and void and non est as the order was passed in complete breach of order of status quo. In order to initiate contempt proceedings. Tribunal or the Court has to conclude that there has been knowledge of passing an order of status quo and in order to inflict punishment, there must be findings that there has been deliberate and willful violation thereof. Unless there is a deliberate and willful violation of the order, contempt proceedings cannot be maintained. Just because there is no punishment nor finding of contempt, order passed, in breach of the order of status quo, cannot be said to be valid one. (6.) IT is a settled position of law, any action taken in complete disregard to a valid order of the competent Court of law or Tribunal, such action or order is always null and void. On this ground alone the order of punishment is liable to be set aside and doing so we could have remanded the matter before the Disciplinary Authority to proceed afresh giving the petitioner a chance of being heard by making suitable representation as against two show-cause notices, but it cannot be done because of the fact the learned tribunal has already examined the legality and validity of the fact finding of the Enquiry Officer and basing on that finding and also on the report of the enquiry Officer, the learned Tribunal has upheld the order of punishment imposed and the learned Tribunal while doing so, as it appears to us, has made on its own finding based on evidence, which in our view, the learned tribunal should not have done as it was not called for at all. Scope of the enquiry in the public law field, while exercising power of judicial review is ssvery clear and that has been kept in mind by the learned Tribunal while passing the impugned order. Scope of the enquiry in the public law field, while exercising power of judicial review is ssvery clear and that has been kept in mind by the learned Tribunal while passing the impugned order. The learned Tribunal rightly observed the parameter of the extent the Tribunal can go. The principle recorded in the impugned order is correct but unfortunately the learned Tribunal, in spite of recording such established law, did not follow the same in this case. Basically, there were two fold charges against the applicant; firstly letting off two persons who were real offenders in connection with the Narcotic Substance case without observing the formalities and secondly detaining two innocent persons as offenders in connection with the Narcotic Substance cases. (7.) NORMALLY this Court should not interfere with the findings of the enquiry Officer and for that matter the learned Tribunal. But when we find the proceedings is conducted throughout on the basis of vague charges and further no evidence is adduced naturally the recordings and conclusion arrived at by all the authorities are perverse. (8.) TO support our aforesaid observation, we should record our own conclusion as follows:-We have noticed that the charges are substantially vague as it is not mentioned what are the formalities and/or precaution are to be observed when a person is arrested (for arguments sake it is accepted.)The Enquiry Officer also has not stated in his report, in details, what are the formalities an officer has to observe before releasing a person who has been arrested. It is difficult to, answer unless these particulars are given. (9.) NOW, coming to the question of detaining an innocent person in the custody in place of the real offender in a Narcotic Substance case, we find the findings of the learned Tribunal and the Enquiry Officer are totally contrary to the unimpeachable records as it will be appearing from the following fact. (10.) ONE of the witnesses, Atul Chandra Barman, Head Constable, had himself in his own handwriting had drawn the FIR mentioning two names, namely, Mahindra Debnath, aged about 28 years, son of Late Khagendra debnath and Kalapahar Debnath, aged 19 years, son of Sainam Debnath. Sections 20b of N.D.P.S. Act read with 137 of the Indian Railway Act, 1989 have been mentioned in the FIR No. 16 dated 20th December, 2002. Sections 20b of N.D.P.S. Act read with 137 of the Indian Railway Act, 1989 have been mentioned in the FIR No. 16 dated 20th December, 2002. In spite of recording the aforesaid FIR, Atul Chandra Barman deposed before the enquiry Officer that those persons were not the real offenders and that they were innocent. It is an admitted position, immediately after the arrest of the two persons the Deputy Collector and the Magistrate were invited for conducting search and possessions of the persons of the aforesaid two persons and while doing so seizure list was prepared in the hand of the said magistrate and in the seizure list we find the name of the aforesaid two persons. This seizure list was produced before the Enquiry Officer. Not only that, this case was registered before the appropriate Court and till then they remained in custody and after submission of final report, they were discharged. Therefore, it is difficult to believe the story of premature letting off the real offenders in the aforesaid Narcotic case. Moreover, the Enquiry Officer has very unkindly disbelieved the seizure exercise by the Collector and disbelieved his recording also without summoning him as a witness. Before him another person also deposed in support of the aforesaid records but he was disbelieved whereas Atul Chandra Barman was believed though he was a delinquent in another disciplinary proceedings in connection with the same incident. Therefore, according to us, charges of letting off the real offenders and detaining the innocent persons have not at all been established by any evidence whatsoever and in view of the aforesaid unimpeachable documents and records, it is difficult to believe that such charge-sheet can be accepted under the aforesaid circumstances. The Court, after receipt of final report, has discharged the arrested persons. There is no finding that these two persons were found innocent by the Court. It may also happen that the investigation was not carried out properly for various reasons but we should go by the records only which are unimpeachable in character and unchallenged. The Court has not observed that the aforesaid two persons were detained without any basis whatsoever and that they were innocent and they were not connected with the incident. It may also happen that the investigation was not carried out properly for various reasons but we should go by the records only which are unimpeachable in character and unchallenged. The Court has not observed that the aforesaid two persons were detained without any basis whatsoever and that they were innocent and they were not connected with the incident. A police officer has every authority to arrest a person on the basis of reasonable apprehension and suspicion and can detain a particular person and after interrogating him he has every right to let him off. The procedures that are to be observed have not been mentioned in the charge-sheet. (11.) IN the circumstances, we are unable to uphold the judgment and order of the learned Tribunal so also the order of punishment. We cannot accept the report of the Enquiry Officer which is perverse on the face of it. We, therefore, set aside the order of punishment, report of the Enquiry Officer and lastly the order of the learned Tribunal. (12.) THIS application is allowed with costs assessed at 300 GMs to be paid by the State Government to the applicant as we are of the view there is no basis to proceed with the disciplinary proceedings against the applicant. The applicant shall be reinstated forthwith. However, so far as payment of back-wages is concerned, 50% of back wages shall be paid. Urgent xerox certified copy, if applied for, be paid to the parties on priority basis.