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2007 DIGILAW 896 (CAL)

Md. Imran Ali v. STATE OF WEST BENGAL

2007-12-20

KALYAN JYOTI SENGUPTA, RUDRENDRA NATH BANERJEE

body2007
JUDGMENT:- (1). THIS application is directed against a judgment and order of the learned state Administrative Tribunal, passed in O. A. No. 1033 of 2001, whereby and whereuncler the petitioners application against order of punishment of dismissal was dismissed. The fact leading to filing of this application before the learned Tribunal was as follows. (2). THE petitioner was charge-sheeted on or about 10th November, 1997 for drawing up a disciplinary proceedings against him on the imputation of charges that on 14th/15h November, 1996 at night the applicant left police camp for night petrol duty with another NVF namely Haradhan Mondal with arms and ammunition at about 00. 01 hours. While the applicant was on the said duty on pucca road near Jalangi Bazar he met a smuggler, moyej Mondal, and on his request the applicant compelled Haradhan Mondal to accompany the said smuggler to Biswaspara to call some labourers to lift 30 bags of sugar from the godown of Netai Mondal and others for smuggling to Bangladesh, while the said NVF had been to Biswaspara with the smuggler he met four unknown dacoits in the house of one Kaimuddin Mondal and they caught hold of Haradhan, and snatched his Government rifle and ammunitions from his possession. (3). FURTHER imputation of charges against the applicant is that he allowed two home-guards Ratan Mondal and Prasanla Chatterjee while both of them were in the same camp, to go home before two and three days before incident, although the applicant had no power to spare them. Untimely the applicant recorded both the home-guards as being absent from the camp on 14th november, 1996 to save themselves from such illegal acts. On receipt of the charge-sheet the applicant briefly denied the allegations. Therefore, the enquiry proceedings was drawn up by appointing Enquiry Officer who after having examined a number of witnesses and on analysis of evidence found the applicant guilty of both the charges. The conclusion arrived at by the enquiry Officer quoting his own language is as follows: "from the evidence adduced it was evident the Charge No. I against the charged C/189 Md. Imran Ali was proved that while he along with NVF haradhan Mondal were performing night patrol duty on 14.15.11. 1996 at Jalangi Bazar did some acts (emphasis supplied) which is violative of discipline norms of police force. Had the C/189 Md. Imran Ali was proved that while he along with NVF haradhan Mondal were performing night patrol duty on 14.15.11. 1996 at Jalangi Bazar did some acts (emphasis supplied) which is violative of discipline norms of police force. Had the C/189 Md. Imran Ali not sent the NVF in dereliction of his bona fide duty, the incident of rifle snatching could be averted and/or had he actually performed night patrol at biswaspara avoiding the allurement of smugglers, the dacoity in the house of Kaimuddin Mondal of Biswaspara (Jalangi P. S. Case No. 104/96 dt. 15.11.1996 under section 395 1pc) could be prevented. The misconduct and the dereliction of duty of C/189 Md. Imran Ali tarnished the image of police, Charge No. II against the charged constable also proved that he allowed two home-guards to go to their houses from the camp on 14. 11.1996 although he had no power to spare them." (4). THE disciplinary authority namely the Superintendent of Police of the district concerned had not only accepted the report of the Enquiry Officer he also came, to his own finding and then issued second show-cause notice proposing order of punishment of dismissal from services. The applicant replied to the said second show cause notice. The disciplinary authority, SP concerned, was not convinced with the explanation given in the reply to the second show-cause notice and imposed punishment of dismissal. Later he preferred appeal to the appellate authority namely Deputy Inspector General of Police. The appellate authority accepted the report of the Enquiry Officer and independent finding of the disciplinary authority and affirmed order of dismissal and rejected the appeal. (5). THE learned Tribunal found that there was no illegality and infirmity in the procedure adopted in holding disciplinary proceedings, and the applicant was given complete opportunity in the disciplinary proceedings and as such no interference in the said two orders of punishment was called for. (6). MR. Sadananda Ganguli, learned Advocate appearing for the petitioner submits that the learned Tribunal has not considered real contention of the petitioner that the findings of the Enquiry Officer is perverse as neither of the charges has been proved by the witness nor by the document. None of the witnesses has said that any smuggler was helped at the eventful night. The incident of snatching of, rifles and ammunitions carrying in course of duty by the NVF, by miscreants could not be anticipated. None of the witnesses has said that any smuggler was helped at the eventful night. The incident of snatching of, rifles and ammunitions carrying in course of duty by the NVF, by miscreants could not be anticipated. As such the same could not be prevented. Naturally it was beyond control of any one. As far as charges of allowing two home-guards to go home is concerned, the same prima facie do not constitute mis-conduct as they were not under control of the petitioner and they went home of their own as such they were recorded absent. Moreover even assuming the charges are proved the punishment is disproportionate to the alleged misconduct as the same are not involved with moral turpitude nor gross indiscipline. He further submits that the petitioner was not given opportunity on receipt of the report of the Enquiry officer, no hearing was given. Lastly he submits that the Enquiry Officer is biased as there was no presiding officer and he acted as presenting officer meaning thereby he himself became the prosecutor and the Judge at the same time and his biasness is evident from the fact that he called a person as a witness who was never cited as a witness. Therefore, this conduct on his part obviously tantamount to biasness In support of his submission he has relied on two decisions of the learned Single Judge of this Court reported in 2004 (2) CHN 92 and 2001 (1) CHN 424 . (7). MR. Subrata Mukhapadyay the learned Advocate appearing for the State contends that the delinquent constable did not file any objection to the alleged charges and he by necessary implication has admitted everything and begged for mercy. The Enquiry Officer was appointed and witnesses have proved by oral evidence the charges and they were tendered for being cross-examined. Documentary evidence was adduced for proving the charges. Thus, there has been complete compliance of natural justice. Hence, no illegality nor infirmity is committed. The learned Tribunal has found it that the enquiry proceedings has been initiated and concluded following the relevant rule. As far as quantum of punishment is concerned the same is absolutely within the domain of the disciplinary authority. The petitioner being a member of the disciplined armed forces has acted in such a manner that the morale of the entire battalion has brought to jeopardy. As far as quantum of punishment is concerned the same is absolutely within the domain of the disciplinary authority. The petitioner being a member of the disciplined armed forces has acted in such a manner that the morale of the entire battalion has brought to jeopardy. As such the punishment inflicted upon him is lawful and proper. Hence the judgment and order of the learned Tribunal does not call for interference and the application should be dismissed. (8). WE have gone through the pleadings in this matter and also the annexurcs annexed therewith and the original records of the disciplinary proceedings produced before us. It appears to us that the following are the admitted positions: (i) The applicant was charge-sheeted with two sets of charges; (ii) He denied all the charges and pleaded not guilty; (iii) Enquiry into the alleged charges were held by appointing an Enquiry officer; (iv) The applicant was given opportunity of being heard as per procedure; (v) He did not cross-examine any of the witnesses nor he produced any witness to rebut the charges; (vi) There has been no presenting officer appointed in this matter. (9). WE, therefore, hold that the applicant was given opportunity of being heard in order to answer the questions raised while assailing the impugned orders of punishment and the judgment and order of the learned Tribunal. We see findings of the Enquiry Officer to hold the applicant guilty of committing misconduct without any evidence. In our opinion, without any evidence does not mean absence of any iota of evidence. Rather if upon assessment of evidence which include documentary and oral testimony recorded, it is found that the alleged misconduct is not proved then it can be termed to be no evidence. It is true that in a domestic proceedings standard of proof is not equal to that of criminal proceedings, rather pre-ponderance of probability. With this standard we have to look into the findings of the Enquiry Officer. Upon reading of the analysis of evidence recorded by the Enquiry Officer it does not appear by any stretch of imagination that the appellant delinquent constable helped Moyej mondal, a smuggler, for lifting 30 bags of sugar from the godown for smuggling to Bangladesh. No one has come forward as per record or analysis of the evidence to say that Moyej Mondal is a smuggler. No one has come forward as per record or analysis of the evidence to say that Moyej Mondal is a smuggler. Incidentally, Moyej Mondal was cited as a witness who did not or is expected hardly to tell that he smuggles. Therefore, how Enquiry Officer can conclude without any evidence that the charges of helping the smuggler is proved is difficult to comprehend. It is further charge against the applicant Imran Ali that he asked Haradhan Mondal (NVF) to help him calling some labourers in spite of his objection. Moyej mondal had deposed and the Enquiry Officer analysed his evidence recorded that at that time he met applicant Imran Ali and another police personnel while they were performing night patrolling near SBI, office, Jalangi Bazar. He requested both of them to accompany him for finding labours. Imran Ali did not go with him but another police personnel followed him. He has not said that Imran Ali asked him to go with Haradhan Mondal. However. Haradhan Mondal, though not cited as a witness in the disciplinary proceeding, came to depose allegedly at the instance of the Enquiry Officer. He told that imran Ali ordered him to go with that person along with arms and ammunitions. The Enquiry Officer, however, did not discuss despite aforesaid contradiction why the version of Moyej Mondal was not accepted. Even it has not been discussed by the Enquiry Officer on what basis he remarked that he was allured by those smugglers. (10). FROM his conclusion it will appear that he did not record any positive findings that he was guilty of helping smugglers or he ordered Haradhan Mondal to accompany a smuggler. We find some force in the submission of Mr. Sadananda Ganguli, learned Advocate for the applicant that conclusion and/or findings of the Enquiry Officer, was not based on any evidence as far as the charge is concerned. In the deposition of one Kamal Krishna Ray, the then C.I., Domkol, who was cited as one of the witnesses made a remark while conducting enquiry that the police lifted 30 bags of sugar from the godown of netai Mondal for smuggling from India to Bangladesh. Nowhere it has been said that Moyej Mondal was a smuggler. Therefore, charges of helping smuggler by ordering Haradhan to go with Moyej Mondal which are serious in nature have not been proved at all. Nowhere it has been said that Moyej Mondal was a smuggler. Therefore, charges of helping smuggler by ordering Haradhan to go with Moyej Mondal which are serious in nature have not been proved at all. From the analysis of evidence of the Enquiry officer it transpires that Haradhan, while performing duty, went with Moyej mondal parting company with Imran Ali on the date of incident and after proceeding few yards he was overpowered by some miscreants and/or dacoits and the rifle and 30 rounds of bullets he was carrying were snatched away but later on the same was recovered. Therefore, it is not clear whether he went of his own accord or as per the order of Imran. Moyej Mondal who was an independent person has said nothing about request or order of Imran whereas haradhan Mondal not being cited came at the instance of Enquiry Officer as a witness said that he was asked by Imran. In view of this situation it would be impossible to hold by any man of ordinary prudence that Imran ordered him to go despite his objection, but the Enquiry Officer has found that he ordered. (11). IT appears that the disciplinary/punishing authority, while imposing punishment, came to his own findings. Apart from agreeing with the Enquiry officer he found that he allowed NVF personnel under his command to escort the smugglers for their safety and security keeping the question of safety and security of the general public at hay which resulted in decoity on his beat and subsequently snatching of rifle of NVF. His retention in service is detrimental to the interest of public service and would set an unholy example for the other members. Therefore, mind of the disciplinary authority was influenced not only by report of the Enquiry Officer but also by his own findings. It is surprising what was not found by Enquiry Officer was found by the disciplinary authority that alleged charges of helping smugglers at the cost of public security and safety while discharging his duty has been proved. Such findings, in our view, as has been rightly contended by Mr. Ganguli are without any evidence. The charge of helping the smugglers at the cost of public security and safety and at the cost of public exchequer is certainly serious one and would have called for stern action against the delinquent. (12). Such findings, in our view, as has been rightly contended by Mr. Ganguli are without any evidence. The charge of helping the smugglers at the cost of public security and safety and at the cost of public exchequer is certainly serious one and would have called for stern action against the delinquent. (12). AS far as sparing of two home-guards from the police camp for one day is concerned it is found that two home-guards left the camp with knowledge and permission of Imran. Imran firstly said that the two home-guards were not supposed to leave the camp with permission from him as he was not authorised to grant permission to leave the camp. But it did not appear from the evidence or from the statement of Imran that he forbade these persons from leaving the camp. He should have intimated their unauthorised leaving of camp to the higher officials. He did not do so. Therefore, as an in-charge of that camp he had certain responsibility which he did not discharge. (13). IT also appears from the records that it has been commented that imran ought not to have allowed Haradhan to escort Moyej Mondal alone and he should have accompanied him. We think that this is error of judgment and whether in a particular situation patrol party should move together or separately cannot be anticipated and judged by any person other than ones who were placed for discharging this duty at the spot or area. We think that for this reason no disciplinary action was called for. As far as prevention of committing of decoity is concerned we think that no one can foresee any commission of criminal act. Had there been any prior information of possibility of decoity being committed and the patrol party did not reach the spot notwithstanding information then dereliction in discharge of duty would have been charged. (14). MR. Ganguly says that entire proceedings has been vitiated with biasness as there has been no presenting officer and the Enquiry Officer had acted as a presenting officer. He contends further because of non-engagement of presenting officer enquiry proceedings is to be held to be invalid and illegal. The domestic enquiry is not like a criminal prosecution or civil prosecution. Enquiry officer has been entrusted to discharge his duty to find out the truth of allegations made against the delinquent. He contends further because of non-engagement of presenting officer enquiry proceedings is to be held to be invalid and illegal. The domestic enquiry is not like a criminal prosecution or civil prosecution. Enquiry officer has been entrusted to discharge his duty to find out the truth of allegations made against the delinquent. In this process, he may take help of the Presenting Officer as well as defence helper. If it is found that the Enquiry Officer proceed impartially and independently even without help as above domestic proceedings can be accepted as to be a valid one. In this case, we find that Haradhan Mondal, though not cited as a witness, was accepted as a witness later on. We think that because of his calling as a witness not being cited does not vitiate entire proceedings, because he was a relevant person to say his own version. (15). THE decision of the learned Single Judge of this Court rendered in case of Rama Kanta Dubey vs. Union of India and Ors. , reported in 2004 (2) CHN 462 , in this context is not helpful in this case. In this case there was no presenting officer nor any defence. The delinquent could have objected to calling a witness not cited in the chargesheet. What matters, is whether the delinquent has been affected in any manner for not appointing any presenting officer or not. Enquiry Officer had asked the delinquent to cross-examine. But he did not do so. The learned Single Judge, in that case, has found factually that Enquiry Officer did not act fairly. In the appeal preferred by the delinquent or in reply to the second show-cause notice the applicant nowhere charged the Enquiry Officer with any biasness or partiality. Court cannot presume what the litigant had not done. The Court should not supply its comprehension based on legal principle for the aid of the litigant who has not come forward to seek help alleging against a particular officer. Hence, the judgment cited by Mr. Ganguli is of no help. Another judgment of the learned Single Judge reported in 2001 (1) CHN 424 is totally misplaced here as in that case it was found that before final order of punishment was passed copy of the findings of the Enquiry Officer or tentative decision on punishment were not communicated in order to give opportunity of hearing. Ganguli is of no help. Another judgment of the learned Single Judge reported in 2001 (1) CHN 424 is totally misplaced here as in that case it was found that before final order of punishment was passed copy of the findings of the Enquiry Officer or tentative decision on punishment were not communicated in order to give opportunity of hearing. In this case, factually we found that tentative findings proposing punishment was communicated. Eeport of the Enquiry Officer was also communicated. The applicant made representation against the proposed punishment. Thereafter punishment was inflicted. (16). ON the discussion above, the learned Tribunal, in our view, however, proceeded in a very casual manner. The learned Tribunal has merely looked at from the apparent perusal of the records but has not delved into the decision making process carefully. It has not examined the report of the enquiry Officer or his analysis as it is reflected in the report itself. The learned Tribunal did not read the findings in reference to the report of the enquiry Officer of the disciplinary/punishing authority. Mere observance of procedural formalities or giving opportunity of hearing in a disciplinary proceeding is not sufficient compliance for lawful and proper completion of departmental proceedings. The Tribunal should have examined as to whether the decision making process is based on established principle of law viz. whether the findings are reached by the Enquiry Officer with the acceptable evidence or not. Learned Tribunal, of course, noted the basic tenets and/or norms to be followed in a case of departmental proceedings, unfortunately however it failed to apply those principles and this has happened because of not reading the records carefully. (17). WE, therefore, hold that the order of dismissal of the applicant is wholly unjustified though the second charge appears to have been proved but for this reason he should not be dismissed from service. Therefore, the order of dismissal is sot aside, judgment and order of the learned Tribunal is also set aside. The applicant shall be reinstated in service with 50% backwages. However, we give liberty to the disciplinary authority to consider any punishment short of removal or dismissal from service as he should have discharged his duty properly as an in-charge of the camp when he found that the two home-guards have left without permission from the competent authority. The applicant shall be reinstated in service with 50% backwages. However, we give liberty to the disciplinary authority to consider any punishment short of removal or dismissal from service as he should have discharged his duty properly as an in-charge of the camp when he found that the two home-guards have left without permission from the competent authority. This shall be completed within three months from the date of communication of this order in accordance with law. (18). THUS, the application is allowed to the extent as above. (19). THERE will be no order as to costs. Application allowed.