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2009 DIGILAW 451 (CAL)

Subrata Gangopadhyay v. UNION OF INDIA

2009-06-26

KISHORE KUMAR PRASAD, PRANAB KUMAR CHATTOPADHYAY

body2009
JUDGMENT Pranab Kumar Chattopadhyay, J. 1. This appeal is directed against the judgment and order dated 27th June, 2008 passed by a learned Single Judge of this Court whereby and whereunder the said learned Judge dismissed the writ petition on merits. 2. A writ petition was filed by the appellant herein claiming withdrawal and/or cancellation of the suspension order dated 23rd April, 2005 issued by the respondent General Manager (Finance), Bharat Sanchar Nigam Limited, Calcutta Telephones specially in view of the fact that the CBI authority after completion of the investigation in respect of a criminal offence submitted chargesheet against some persons but not against the appellant herein. 3. It has been urged on behalf of the appellant that since CBI authority did not implicate the petitioner in the pending case after completion of the investigation, the order of suspension issued earlier by the concerned authority on 23rd April, 2005 cannot continue and same should be withdrawn immediately. 4. Mr. Bandyopadhyay referred to the order of suspension dated 23rd April, 2005 and submitted that 'a case' mentioned in the said order of suspension relates to investigation in connection with case No. RCC AA 2005A 0001. 5. It is not in dispute that Special Case No.6 of 2007 was started before the learned 1st Special Court, Alipore on the basis of First Information Report lodged by the CBI in relation to case No. RCC AA 2005A 0001. 6. The learned Counsel of the appellant invited our attention to the order No. 18 dated 30th April, 2007 passed by the learned Judge, 1st Special Court, Alipore, wherein it has specifically been recorded that chargesheet has been submitted against the seven accused persons excluding the appellant herein. In the aforesaid circumstances, it has been submitted on behalf of the appellant that the impugned order of suspension issued to the appellant herein cannot continue any longer. 7. Now, we are to consider .whether the petitioner was placed under suspension for his alleged involvement in the aforesaid case arising out of the First Information Report relating to RCC AA 2005A 2001. 8. 7. Now, we are to consider .whether the petitioner was placed under suspension for his alleged involvement in the aforesaid case arising out of the First Information Report relating to RCC AA 2005A 2001. 8. The learned Advocate of the respondents invited our attention to the written communication of the D.E. (Vigilance), Calcutta Telephones dated 1st April, 2005 wherein it has been specifically mentioned that the CBI had registered a case bearing No. RCC AA 2005A 0006 against the appellant under section 13(1)(e) read with section 13(2) of Prevention of Corruption Act, 1988 along with another case bearing No. RCC AA 2005A 0001. By the aforesaid written communication dated 1st April, 2005, the said D.E. (Vigilance) requested the Deputy General Manager, Calcutta Telephones to take necessary steps in order to place the appellant herein under suspension. 9. The said letter of D.E. (Vigilance) is reproduced hereinbelow : "Bharat Sanchar Nigam Limited Office of The Chief General Manager, Calcutta Telephones Telephone Bhawan, 34, B.B.D. BAG (South), Kolkata-1. To Shri V. Srinivasulu, D.G.M. (SEA), Calcutta Telephones, 3, Hare Street, Kolkata-700001. No. VIG/RC-6/2005 Dated at Kolkata 1, the 01.04.2005. Sub : Report regarding CBI investigation against an Assistant Accounts Officer in C.T.D. I am directed to refer to your letter No. ABB-3016/FA/SG/CON dated 18th March, 2005, on the subject mentioned above. In this connection it is informed that based on a source information, CBI, raided the house of Sri Subrata Gangopadhyay at Nona Chandanpukur, Barrackpore, 24-Parganas (North) Sri Gangopadhyay was working as officiating AOTR/CC/North at that time. As per reports received from CBI, Sri Gangopadhyay possessed total movable and immovable assets to the tune of Rs. 1,60,06,412.43/-. This huge amount of assets is disproportionate with his known source of income. Hence, CBI, registered a case No. RCC AA 2005A 0006 against Sri Gangopadhyay under section 13(1)(e) read with section 13(2) of PC Act, 1988. CBI registered another case No. RCC AA 2005A 0001 against Sri Gangopadhyay. The direction of CVC and instruction contained in DoP&T O.M. No. 142/5/84-AVD.I dated 20.06.86 received from CBI are enclosed. In pursuance of the directive of CVC and the above mentioned O.M. of DoP&T. The officer should be placed under suspension with immediate effect. The officer has been absorbed in BSNL. His appointing authority is Director (Fin.) of BSNL, Board. Hence, necessary steps may be taken to place him under suspension. In pursuance of the directive of CVC and the above mentioned O.M. of DoP&T. The officer should be placed under suspension with immediate effect. The officer has been absorbed in BSNL. His appointing authority is Director (Fin.) of BSNL, Board. Hence, necessary steps may be taken to place him under suspension. The order should be issued by his appointing authority. A draft order is enclosed. As investigation is still on progress, it also recommended to transfer him immediately to an area not in vicinity where he is posted at present and in a non-sensitive post. (P. C. Swarnakar) Enclo. As stated. D.E. (Vigilance) Calcutta Telephones." 10. Pursuant to the aforesaid recommendation of the D.E. (Vigilance), suspension order in question was issued against the appellant on 23rd April, 2005 by the General Manager (Finance), BSNL, Calcutta Telephones wherein it has been specifically mentioned that 'a case' against the appellant in respect of a criminal offence was under investigation. 11. Mr. Bandyopadhyay, learned Counsel representing the appellant submitted that the appellant was not aware in respect of any other case excepting the case arising out of First Information Report which relates to RCC AA 2005A 0001 wherein chargesheet was submitted after investigation against some persons but not against the appellant herein. 12. The respondent authorities, however, submitted that the order of suspension was issued against the appellant since 'a case' in respect of a criminal offence was under investigation and the said case was registered by the CBI being RCC AA 2005A 0006 and not RCC AA 2005A 0001 as claimed by the appellant herein. 13. The respondent authorities specifically disclosed the aforesaid fact in the affidavit-in-opposition filed before this Court in answer to the supplementary affidavit affirmed by the appellant in connection with the writ petition. 14. The relevant paragraph from the said affidavit-in-opposition tiled in connection with the supplementary affidavit by the respondent Nos. 13. The respondent authorities specifically disclosed the aforesaid fact in the affidavit-in-opposition filed before this Court in answer to the supplementary affidavit affirmed by the appellant in connection with the writ petition. 14. The relevant paragraph from the said affidavit-in-opposition tiled in connection with the supplementary affidavit by the respondent Nos. 2 to 8 is set out hereunder : ''C. But the order of suspension of the writ petitioner was made by the said order dated 23.4.2005 (Annexure P-5) was not for the said case as has been described in the writ petition or in the said supplementary affidavit, being the said special case No.6 of 2007, but for another CBI case being No. RCC AA 2005A 0006 under section 13(1)(e) read with section 13(2) of Prevention of Corruption Act, on seizing properties worth Rs.1,160,06.412.43 (Rupees one Crore Sixty Lakhs Six Thousand Four Hundred Twelve and paise forty-three) only from his custody which is disproportionate with his known source of income". 15. However, it has been submitted by Mr. Bandyopadhyay that no new case can be made out in the supplementary affidavit. It is true that a new case cannot be made out in the supplementary affidavit but in the present case the respondent authorities only clarified its stand by disclosing the actual fact while dealing with the specific contentions of the appellant/writ petitioner made in the writ petition and also in the subsequent supplementary affidavit tiled in connection with the said writ petition. 16. We do not find any document wherefrom it would appear that the impugned order of suspension dated 23rd April, 2005 was issued due to pendency of the investigation m relation to the case registered by the CBI being RCC AA 2005A 0001. 17. On the other hand the respondent authorities in their affidavit-in-opposition filed in connection with the supplementary affidavit of the appellant/writ petitioner specifically clarified that the order of suspension dated 23rd April, 2005 was issued not for the case being No. RCC AA 2005A 0001 but for another CBI case being No. RCC AA 2005A 0006 under section 13(1)(e) read with section 13(2) of Prevention of Corruption Act. 18. There is no dispute that the aforesaid case registered by CBI, being RCC AA 2005A 0006 is still pending for investigation and the appellant herein has not yet been exonerated. 19. 18. There is no dispute that the aforesaid case registered by CBI, being RCC AA 2005A 0006 is still pending for investigation and the appellant herein has not yet been exonerated. 19. For the aforementioned reasons, we are unable to hold that the appellant/writ petitioner is entitled to demand withdrawal of the impugned order of suspension dated 23rd April, 2005 on the ground that after completion of investigation no chargesheet was submitted against the appellant in relation to the case arising out of RCC AA 2005A 0001 specially when the respondent authorities specifically disclosed that the order of suspension was issued to the appellant/writ petitioner in relation to CBI case, being No. RCC AA 2005A 0006. 20. Upon considering the available materials on record learned Single Judge, in our opinion, has rightly observed: "Mere fact that the writ petitioner had not been chargesheeted in connection with a particular case, does not mean that his alleged involvement in another case cannot be the foundation for his order of suspension." 21. Going through the impugned judgment and order under appeal. We find that the learned Single Judge discussed the issues raised on behalf of the parties in details while deciding the writ petition finally and we do not find any error and/or illegality and/or irregularity in the decisions of the learned Single Judge as mentioned in the judgment and order under appeal. 22. Therefore, we are not inclined to interfere with the said judgment and order under appeal passed by the learned Single Judge and dismiss the present appeal as we do not find any merit in the same. 23. In the facts of the present case, there will be, however, no order as to costs. 24. Let urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible. I agree. Appeal dismissed.