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2009 DIGILAW 403 (CAL)

Mrinmoy Majumder v. STATE OF WEST BENGAL

2009-05-21

P.S.Datta

body2009
JUDGMENT: 1. THE petitioner was in employment in Geological Survey of India in the post of Laboratory Assistant (Chemical Gr. III). One B.K. Thakur, Superintendent of Police, CBI lodged an FIR in the month of November, 2006 against certain persons alleging offences under sections 420, 468/120B, IPC and under section 13(2) read with section 13(l)(d) of the Prevention of Corruption Act. THE sum and substance of the allegations are that the petitioner secured employment in the post as aforesaid in GSI on the basis of a fictitious and fake certificate allegedly issued by one Paramjit Singh who is accused No. 5 in the case. On the basis of the false certificate he was called for interview and selected to the post. A detailed enquiry was made by a committee consisting of three officers of the Geological Survey of India and report was submitted by the committee on 9th July, 2003 to the effect that the certificate of the petitioner was a fake one. Now chargesheet was submitted against Kanti Prasad Goutam, Director (Personnel and Administration) GSI, Sanjiban Majumdar, Senior Private Secretary to the Deputy Director General (Operations. Coal), Coal Wing, Kolkata - 91, Gobinda Prasael Naskar, Administrative Officer Grade-II, the present petitioner Mrinmay Majumdar, Paramjit Singh, Project Manager and one Prayag Chandra Mandai who was then posted as Director General, Geological Survey of India. THEse High Officials surrendered before the learned Special Judge on 29th December, 2008 consequent upon submission of chargesheet against them, and they were granted bail by the learned Judge on 29th December, 2008. 2. THE learned Judge in his order dated 29th December, 2008 observed as follows: "THE fact before this Court is regarding the malpractice done by the accused persons regarding the appointment of accused No. 4 Mrinmoy Mazumdar. For this reason I took the pain to mention the designation of the accused persons now, the question of role of the accused persons. I have gone through the chargesheet which has depicted the detailed story as to how the accused No. 4 Mrinmoy Majumdar got the appointment as Laboratory Assistant (Chemical), Grade-II in GSI, depriving the others. THE certificate on which he banked upon given by accused No. 5 Paramjit Singh has been proved to be a fake one. THE IO during the course of investigation did not prefer to arrest any of the accused persons. THE certificate on which he banked upon given by accused No. 5 Paramjit Singh has been proved to be a fake one. THE IO during the course of investigation did not prefer to arrest any of the accused persons. THE chargesheet shows that the accused No. 4 Mrinmoy Majumdar is still working at 15, A.B. Kyde Street; Kolkata - 16 as Laboratory Assistant (Chemical), Grade-Ill, CSI even though the certificate has been proved to be prima facie fake one. I wonder why the appointing authority did not take any steps regarding the continuance of service of this accused." The learned Judge observed that a Central Government employee if he has managed to secure employment by extra legal method he should not be given any advantage so that he may continue with the job. Now on the basis of this observation of the learned Judge the Deputy Director General (Personnel), Geological Survey of India by order dated 27th January, 2009 put the petitioner under suspension but 15 days before the passing of the order of suspension a departmental proceeding had been already initiated against the petitioner by the Deputy Director General (Personnel) GSI. The departmental proceeding is in progress. 3. MR. Uttam Majumdar, learned Advocate for the petitioner submitted that if the learned Trial Court would not have made the above observation then the petitioner would have continued in service till the criminal case was disposed of or till the disciplinary proceeding was concluded and it is because of the observation of the learned Judge that the petitioner has been put under suspension which the authority concerned did not choose to do until the order was passed. Therefore, MR. Majumdar submitted that the observation of the learned Judge in the Court below as quoted above in the order dated 29th December, 2008 should be expunged so that the authority concerned could be approached to withdraw the order of suspension and that the petitioner could be in a position to continue with the job as usual. 4. MR. Majumdar submitted that the learned Judge was hearing the bail application of the six accused persons and it was not the business of the learned Judge to make such observation which was purely uncalled for and it was a matter between the petitioner and the officers of the GSI. 4. MR. Majumdar submitted that the learned Judge was hearing the bail application of the six accused persons and it was not the business of the learned Judge to make such observation which was purely uncalled for and it was a matter between the petitioner and the officers of the GSI. The officers of the GSI did not think it necessary to put the petitioner under suspension and it is because of the observation of the learned Judge that the petitioner has been put in peril. Mr. Ranjan Roy, learned Advocate for the CBI supported the order of the learned Judge submitting that the charge-sheet has established a prima facie that the petitioner secured employment in the government concern on the basis of a fake certificate and it was the duty of the appointing authority to immediately terminate the employment of the petitioner or to put the petitioner in suspension and even after submission of chargesheet the authority slept a dogmatic slumber and allowed the petitioner to continue to be in service and it struck the mind of the learned Judge as to how in the context of submission of charge-sheet prima facie establishing the certificate to be a fake one the petitioner could go on merrily with the job. 5. IT is submitted by Mr. Roy that the learned Judge did not make any observation extraneous to the fact in issue, nor the observation or remark was directed against any individual who was not a party to the proceeding. The Judge should be given liberty to express his mind and if this Court in exercise of the power under section 482, Cr. PC, expunges the relevant observation of the learned Judge then the effect would be to enable the authorities of the GSI to withdraw the order of suspension and to allow the petitioner to be in service which would be shocking, illegal and unjust. 6. MR. Majumdar refers to the decision in Dr. Raghubir Saran vs. State of Bihar and Anr. reported in AIR 1964 SC 1 , Niranjan Patnaik vs. Sashibhusan Kar and Anr., reported in $JR 1986 SC 819 ; 1986 C. Cr .LR. (SC) 88; 'K', a Judicial Officer reported in AIR 2001 SC 972 , State ofUttar Pradesh vs. Md. Nairn, AIR 1964 SC 703 and Samya Sett vs. Sambhu Sarkar and Anr., AIR 2005 SC 3309 :2006(1) C. Cr. LR. (SC) 404. (SC) 88; 'K', a Judicial Officer reported in AIR 2001 SC 972 , State ofUttar Pradesh vs. Md. Nairn, AIR 1964 SC 703 and Samya Sett vs. Sambhu Sarkar and Anr., AIR 2005 SC 3309 :2006(1) C. Cr. LR. (SC) 404. Now each of the decisions is fact-oriented but in Dr. Raghubir Saran certain principles have been laid down. In the said decision it was observed that the power to expunge extends to remarks made against a person who is neither a party nor a witness to the proceeding but such power must not be pressed in aid except for remedying a flagrant abuse by a subordinate Court of its powers such as passing comment upon a matter not relevant to the controversy before it and which is unwarranted or is likely to harm or prejudice another. In this decision one of the Hon'ble Judges observed, that every judicial officer must be free to express his mind in the matter of appreciation of the evidence before him. Sometimes he will overstep the remark. When public interests conflict, the lesser should yield to the larger one. Now the learned Judge in the instant case expresses his doubt as to how the petitioner could be in employment even after submission of chargesheet followed by a report of a committee of three officers of the Government of India to the effect that the certificate was a fake one. Definitely a public interest was very much in issue which hitherto the authorities in the GSI missed to note. The decision in Niranjan Patnaik is in the context of certain remarks made against the respondent who following such remarks submitted his resignation from the Cabinet. Their Lordships observed that the remark was unjust. As said above, each decision is based on the factualities of a case which are not identical with another. The decision in AIR 2001 SC 972 was in the context of certain adverse remarks made against a judicial officer who remained unheard of. The present order was passed in presence of the petitioner. The decision in State of Uttar Pradesh (supra) relates to certain disparaging remarks against the entire police force of a state which was held to be not justified, Similarly, in Samya Sett (supra) certain adverse remarks were passed against a judicial officer who passed a judicial order in discharge of his official duty. The decision in State of Uttar Pradesh (supra) relates to certain disparaging remarks against the entire police force of a state which was held to be not justified, Similarly, in Samya Sett (supra) certain adverse remarks were passed against a judicial officer who passed a judicial order in discharge of his official duty. In that case the appellant rejected the bail application of an accused and the Hon'ble Supreme Court observed that even if it is assumed that the appellant was not right in rejecting the application for bail of an accused it was not a case which called for strictures against the Judge. It is not a case at hand where criticism has been levelled in unrestrained language beyond the judicial decorum against a person who allegedly managed to secure employment in a government office fraudulently. It is a case where the Judge expresses his wonder how a person could be allowed to go on with the job in government office when the very basis of his employment was allegedly prima facie found to be without any foundation. In the suspension order the appointing authority referred to the pendency of the disciplinary proceeding and the observation of the Court. The authorities concerned could have in disagreement with the observation of the learned Judge declined to take any steps. It was not obligatory for the appointing authority to issue an order of suspension irrespective of what the Court might have said against the accused persons. The disciplinary proceedings were initiated by the appointing | authority before the impugned order was passed and there was only a time gap of a few days between the initiation of disciplinary proceedings and issuance of the order of suspension. Legally, it cannot be said that the suspension order was the fallout of the impugned order in as much as the authority was not bound by the order, although the learned Judge might have chosen hot to make the observation but the Judge has expressed his mind which a man of ordinary understanding and prudence would have reached in such a situation, notwithstanding the fact that the guilt was not established; but an order of suspension is a prerogative of the authority and it cannot be construed to be an order of punishment for the alleged offence. The order of suspension is an individual act which otherwise the authorities were legally entitled to do irrespective of whether any observation as to the continuance of the petitioner in employment had or had not been made. In the circumstances, I find no point in interfering with the order impugned. 7. THE application is dismissed. Appeal dismissed.