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2008 DIGILAW 740 (CAL)

Amar Kanti Barua v. STATE OF WEST BENGAL

2008-07-25

KALYAN JYOTI SENGUPTA, PRASENJIT MANDAL

body2008
Judgment :- (1.) IN spite of service of notice as well as despite appearance of the matter in the list for several times no one has appeared on behalf of the State. (2.) WE have heard Mr. Saptangshu Basu, learned counsel, appearing on behalf of the petitioner at length. (3.) CERTIFIED copy of the order as desired by us in terms of our dated 3rd June, 2008 has been produced before us, the same be kept on record. (4.) WE feel the order dated 3rd April, 1995 would be relevant for deciding this matter. (5.) IN this case the judgment and order dated 20th July, 2007 of the learned state Administrative Tribunal has been questioned. The fact in short is put hereunder: The applicant was provisionally appointed as L. D. C. by the State government and was placed at the Office of the Rent Controller at New secretariat Buildings. He completed continuous three years probationary period. In usual course he was expecting declaration of permanency and confirmation in stead of termination from services as he suppressed the material fact that he had been taken into custody of the learned S. D. J. M. by a letter dated 18th July, 2000. The order of termination is summary and without resorting to any disciplinary proceeding, however, reasons for termination have been disclosed therein. The reasons are that from Police verification Report it was found that the applicant had been involved in a criminal case even before joining the present post. Moreover, while filling up the Police Verification Roll Sri Amar Kanti Barua suppressed and denied the material fact that he had been taken into custody of the Court of learned s. D. J. M. and was thereafter released on bail. In view of the above, Sri Baruas services are to be terminated immediately. (6.) CHALLENGING the aforesaid order of termination, the said application being O. A. No. 1145 of 2000 was made. The learned Tribunal dismissed the application on two grounds, namely, (1) Sri Barua had suppressed in Police verification Form the relevant information that he was arrested in connection with a criminal case; and, (2) since he was on temporary service, his service could be terminated by serving requisite prior notice. The learned Tribunal dismissed the application on two grounds, namely, (1) Sri Barua had suppressed in Police verification Form the relevant information that he was arrested in connection with a criminal case; and, (2) since he was on temporary service, his service could be terminated by serving requisite prior notice. (7.) WE are of the view that second ground of termination, on service of notice, should not have been recorded by the learned Tribunal for dismissal of the application since it was not the question before the learned Tribunal whether the termination is lawful and justified. When the reasons for termination are given, the learned Tribunal should have looked into whether the termination based on the aforesaid reasons was justified or not. Therefore, the termination of temporary service on service of notice, in our view, was not called for. (8.) NOW the next question is whether the learned Tribunal has lawfully upheld the order of termination on the ground of suppression as alleged in the notice or not. (9.) ON the other day it was emphatically submitted that he was never arrested. It is true that he was involved in a criminal case along with other people and he was not arrested and he himself surrendered before the Court of learned S. D. J. M. on a particular date and a bail application being made, he was granted bail on the same date. As such, the story of being arrested is totally false. (10) MR. Basu has drawn our attention to the order dated 3rd April, 1995 of the learned S. D. J. M. wherefrom we find that the applicant along with other 21 persons appeared in Court. It appears from the order sheets that all those persons surrendered themselves by petition and prayed for bail and it appears that on the same date they were released on bail of Rs. 1,000/-each, in default they were remanded to be kept in jail custody. Thereafter on the same date the learned Magistrate recorded that bail bond was furnished by the applicant. (11.) MR. Basu then contends that Police Verification Roll was filled in by his client and there has been no suppression of any information or any fact relating to employment. There is no column in the said Roll for disclosure whether any criminal case is pending or not. (11.) MR. Basu then contends that Police Verification Roll was filled in by his client and there has been no suppression of any information or any fact relating to employment. There is no column in the said Roll for disclosure whether any criminal case is pending or not. Serial Number 13 of the said roll only mentions to disclose whether he was arrested, detained or convicted by a Court of any offence. Since he was not arrested, therefore, he declared in negative in the column. (12.) MR. Basu submits that when a person can be said to have been arrested, has been explained in great details by a recent judgment of the supreme Court in the case of State of Haryana and Ors. v. Dinesh Kumar, reported in (2008)3 SCC 222 . He has drawn our attention to paragraphs 31 and 32 of the said judgment. (13.) FROM the aforesaid judgment it is made clear that arrest must be to curb the liberty of movement. There may be a technical arrest or physical arrest but here the applicant was never taken into custody either technically or, physically and he could appear before the learned Magistrate and the learned Magistrate granted bail on the same date. (14.) IN view of the aforesaid factual and legal position according to him, the finding of the learned Tribunal is wholly unjustified. Therefore, the order of termination based on the aforesaid reasons is unsustainable and the same should be set aside also. (15.) WE have considered the submission of Mr. Basu and we have noted the aforesaid fact. (16.) NOW the question is as to whether the learned Tribunal has justly and correctly upheld the order of termination in this case or not. (17.) WE have already observed that learned Tribunal had no jurisdiction to uphold the order of termination on the ground which was not taken by the State at all. Whole question is, as it is recorded by the learned Tribunal, whether there has been suppression of fact in the Police Verification Roll or not. Learned Tribunal itself has recorded what is the information in Column 13 is required to supply. Whole question is, as it is recorded by the learned Tribunal, whether there has been suppression of fact in the Police Verification Roll or not. Learned Tribunal itself has recorded what is the information in Column 13 is required to supply. (18.) WE have seen the certified copy recording the order of the aforesaid date and we are of the view that the learned Tribunal without calling for the records from the relevant Court and relying on mere statement, averment and submission of the learned counsel for the State has accepted as a matter of course that he was arrested. According to us, when there is a question of fact that there has been no arrest, the best course of action should have been to call for the records from the concerned Magistrate or for certified copy which we have done here. (19.) THEREFORE, the learned Tribunal is factually wrong in concluding that the applicant was arrested so as to disentitle and disqualify him to remain as a government servant. Obviously, if a person is arrested in connection with any offence, he is tainted person and until and unless he is relieved of charges, he cannot be a civil servant for people confidence and trust cannot be reposed in a tainted person. Therefore, when on fact we find there has been no suppression of fact and he was not arrested, the finding of the learned Tribunal is, in our view, not acceptable as the same is untrue. (20.) NOW we are to examine whether order of termination on the ground of involvement in a criminal case is justified or not. (21.) WE have checked up the rules and we do not find any such provision that mere pendency of a criminal proceeding will be a ground for termination of the employment simplicitor without drawing up any proceeding. (22.) LAW is very well settled that a disciplinary proceeding may be initiated pending a criminal proceeding but the summary termination in the way it has been done here is not permissible under the law al belt pendency of the criminal proceeding. (23.) IT is an admitted position that on the date of appointment the criminal prosecution was pending. (22.) LAW is very well settled that a disciplinary proceeding may be initiated pending a criminal proceeding but the summary termination in the way it has been done here is not permissible under the law al belt pendency of the criminal proceeding. (23.) IT is an admitted position that on the date of appointment the criminal prosecution was pending. We are of the opinion that mere pendency of the criminal proceeding under the rules does not disqualify a person to be appointed as a government servant in this case for a person may be falsely implicated. (24.) WHEN the appointment was made having scrutinized everything provisionally, there was no warrant to terminate on the ground of pendency of the criminal proceeding. The other ground mentioned in the said order of termination regarding taking into custody of the learned S. D. J. M. is wholly incorrect. (25.) WE, therefore, allow this application and we set aside the judgment and order of the learned Tribunal and the order of the termination dated 18th July, 2000. (26.) WE direct the government to reinstate the applicant in services as early as possible preferably within a period of seven days from the date of communication of this order. In the event the applicant is convicted, it would be open for the respondent authority to take appropriate action in accordance with law, as may be advised. The applicant will be entitled to all benefits as if he was in service including back wages of 50% of his salary. The matter is disposed of. Application succeeds.