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2009 DIGILAW 78 (CAL)

Subrata Samanta v. STATE OF WEST BENGAL

2009-02-06

AMIT TALUKDAR, SADHAN KUMAR GUPTA

body2009
Judgment :- (1) The Judgment of the Court was as follows : Folly, at the inception - before the Enquiry Officer (Respondent No. 5); in the midway -before the Disciplinary Authority (Respondent No. 4); on the summit stage -before the Appellate Authority (Respondent No. 3) and at the end of the day -before the Tribunal, backed up by one another has catapulated the petitioner before this Court seeking to retrieve his lost fortune. (2) While we will be required to address ourselves with regard to the malady that has permeated the whole hog of the issue which erupted in the impugned Order passed by the learned Tribunal in OA No. 88 of 2006 on 24.9.08. it would be appropriate that the factual matrix of the case is briefly adumbrated. (3) The petitioner was working as a constable of the West Bengal Police, Stationed at Bishnupur under respondent No. 4. The wife of the petitioner Smt. Sulekha Samanata approached the respondent No. 4 for including her name in the Service Book as Nominee of the petitioner (Page -62). In course of consideration of such prayer it came to light that the petitioner was allegedly married to one Sikta Ghosh for the last nine years and out of the said relationship a son has been born. It was also established that the petitioner was not staying in his Official Quarters in the Police Housing and was residing with the said lady. (4) This resulted in initiation of the Proceeding No. 25 since the conduct of the petitioner drew the wrath of Section 30 of the West Bengal Servants Conduct Rules, 1959. (5) The petitioner was directed to answer two heads of charge as framed by the respondent No. 4 - Firstly, "You are married with a woman Smt. Sikta Ghosh for last 9 (Nine) years and live as husband and wife and also have a son aged 8 (Eight) years, though your first wife is alive which is contravention of rule 30 of West Bengal Government Servant Conduct Rules, 1939. Secondly, "You are staying in the house of Smt. Sikta Ghosh at Bankura without any permission since Vast 09 (Nine) years though you have been allotted Govt. Quarter No. A/4 under Police Housing near B TOP Btshnupur where your first wife is living alone." (6) Pursuant thereof the respondent No. 5, being the Enquiry Officer, gave his finding (Annex. Secondly, "You are staying in the house of Smt. Sikta Ghosh at Bankura without any permission since Vast 09 (Nine) years though you have been allotted Govt. Quarter No. A/4 under Police Housing near B TOP Btshnupur where your first wife is living alone." (6) Pursuant thereof the respondent No. 5, being the Enquiry Officer, gave his finding (Annex. - D) that the charge against the present petitioner was established on the basis of the evidence and the documents placed before it. (7) The respondent No. 3, the Disciplinary Authority accepted the said charge. (8) The finding of the Enquiry Officer (Respondent No. 5) by its Memo No. 4685/RO dated 18/7/05 (page 90) directed the petitioner to show cause as to why he would not be removed from the service within seven day. (9) After having given a hearing and considering, the findings of the Enquiry Officer (Respondent No. 5) the respondent No. 4, being the Disciplinary Authority came to the finding that the petitioner should be removed from service with effect from 20.8.05 by his Order of even date (Annex. - F). (10) The petitioner thereafter moved the respondent No. 3, who was the Appellate Authority against the finding of the Disciplinary Authority. The Appellate Authority (Respondent No. 3) by the Range Order No. I 17/MR dated 17.10.05 affirmed.the Order of the respondent No. 4. (11) Consequently, the petitioner made an upward journey before the Tribunal. (12) The West Bengal Administrative Tribunal in O.A No. 88 of 06 by its impugned Order No. 13 dated 24.9.08 disposed of the Application with the direction that the Administrative Authority would proceed with the Departmental Proceeding from the date of the receipt of the Report of the enquiry. (13) This Order has paved the way for the petitioner to approach this Court. (14) At the Bar we were addressed at length on behalf of both the petitioner and the State in great details and several decisions were relied on behalf of the State in support of its contention. (15) Learned Counsel for the petitioner submitted that the learned Tribunal has committed a grave error in directing the Departmental Proceeding to recommence from the stage of the receipt of the Enquiry Report, as according to him, the very Enquiry Report itself supers from apparent infirmities and is not sustainable in the eye of law. (15) Learned Counsel for the petitioner submitted that the learned Tribunal has committed a grave error in directing the Departmental Proceeding to recommence from the stage of the receipt of the Enquiry Report, as according to him, the very Enquiry Report itself supers from apparent infirmities and is not sustainable in the eye of law. He was of the view that if the Departmental Proceeding is undergone afresh on the basis of the said Enquiry Report then it would result in the same error which has cropped up in the entire proceeding, which resulted in filing of this application. (16) Learned Counsel further submitted that when the learned Tribunal itself came to the finding - that the finding of the Disciplinary Authority suffers from inherent lacunae which cannot be approved in accordance with law, it was necessary that the Enquiry Report also should have been scrapped since the Disciplinary Proceeding emanated therefrom. (17) He has submitted that no purpose would be served by virtue of the Order of the learned Tribunal wherein it has set aside the Order of the Disciplinary Authority but, retained the finding of the Enquiry Officer. (18) Lastly, he has submitted that he will have to face the same Forum i.e, the Enquiry Officer, who has come to the conclusion simply on the question of presumption. (19) Learned Counsel for the petitioner has placed before us the entire materials in support of this contention. He has accordingly prayed for setting aside the entire Order of the learned Tribunal. Per contra : (20) Learned Advocate for the State/Respondents has argued this Court cannot enter into the factual aspect of the case i.e., the finding of the Enquiry Report. To buttress his submission he has referred to the decisions of the Supreme Court Divisional Forest Officer and Others v. M. Ramalinga Reddy, (2007)9 SCC 286 . (21) Learned Advocate for the State further submitted that this Court in exercise of its power of Judicial Review cannot enter into the factual aspect and upset the order of the Enquiry Report in the absence of any perversity on the face of it. To substantiate his point he relied on the decision of Deputy Inspector General of Police and Another v. K. Ravinder Rao, (2008)2 SCC 590 and Shamshad Ahmad v. Tilak Raj Bajaj, (2008)9 SCC 1 . To substantiate his point he relied on the decision of Deputy Inspector General of Police and Another v. K. Ravinder Rao, (2008)2 SCC 590 and Shamshad Ahmad v. Tilak Raj Bajaj, (2008)9 SCC 1 . (22) He also submitted that the Order passed by the learned Tribunal required no interference and the application filed by the petitioner ought to be dismissed. (23) We have very carefully heard the submission made at the Bar and have considered all the decisions relied upon. In the light of the same we would now proceed to disposed of this application. (24) At the out set, we have found that there is no formal complaint against the petitioner by his wife - Smt. Sulekha Samanta. It all arose out of a petition (page -62) made before the respondent No.4 by her over the issue of induction of her name as a NOMINEE to the petitioner. (25) The focal point in the entire issue related to his subsequent marriage with Smt. Sikta Ghosh during the life time of his wife Smt. Sulekha Samanta and the ancillary charge with regard to abandoning his Quarters No. A/4 at the Police Housing, Bishnupur. (26) It would be of some interest to note the finding of the Enquiry Officer (Respondent No. 5) - Annexure-D". It was the stand taken by the petitioner that he was the Vikka Baba (godfather) of the child named Subhadeep Samanta. The Enquiry Officer (Respondent No. 5) held : "But Smt. Sikta Ghosh could not produce any document in support of her statement that Subrata Samanta (the petitioner) is "VIKKA BABA" of Subhadeep Samanta (the said child). That Subrata Samanta (the petitioner) is "VIKKA BABA" of Subhadeep Samanta (the said child) thus stands beyond reasonable belief. The Enquiry Officer (Respondent No. 5) held : "But Smt. Sikta Ghosh could not produce any document in support of her statement that Subrata Samanta (the petitioner) is "VIKKA BABA" of Subhadeep Samanta (the said child). That Subrata Samanta (the petitioner) is "VIKKA BABA" of Subhadeep Samanta (the said child) thus stands beyond reasonable belief. Thus the statement made by PW-2 Smt. Sikta Ghosh leads to the conclusion that the charged constable 913 Subrata Samanta (the petitioner) is the father of Subhadeep Samanta (the said child)" (27) Now, if we come to the finding of the Disciplinary Authority (Respondent No. 4) -Annexure-F it reveals that he was "of the opinion that It can be presumed that he has married Smt. Sikta Ghosh and living with her during the life time of Smt. Sulekha Samanta." (28) While affirming the Order of the Disciplinary Authority (Respondent No. 4) the Appellate Authority (Respondent No. 3) in Annexure- H, we find, held- "Moreover, in his appeal petition the petitioner never advocated his innocence rather he only pointed out irregularities and anomalies in the prosecution which on scrutinising the records, documents and procedure maintained by the disciplinary authority is seen that the points raised are not tenable. On the basis of findings of the E.G. the disciplinary authority here SP Bankura made the correct assessment in passing final order." The Tribunal in Page 147 has come to the conclusion -"We are to conclude that the conclusion reached by the Disciplinary Authority in the concerned matter in punishing the charged constable, suffers from inherent lacunae, and as such, it is not sustainable in law." (29) In the, contextual background of the aforesaid situation which we have extracted from the various stages of the proceeding, faced by the petitioner, we would now refer to the citations, relied upon by the learned Counsel for the State. (30) The decision of Divisional Forest Officer and others v. M. Ramalinga Reddy (supra), in our humble view, would not be of any rescue for the respondents as the fact situation of the present case is quite dissimilar. (30) The decision of Divisional Forest Officer and others v. M. Ramalinga Reddy (supra), in our humble view, would not be of any rescue for the respondents as the fact situation of the present case is quite dissimilar. As we have found that the fjnding with regard to the marriage of the petitioner with Smt. Sikta Samanta (Ghosh) is based on presumption and has not been substantially proved, the conclusion of the Appellate Authority that - the Petitioner never advocated his innocence but pointed out irregularities and anomalies in the prosecution, was a very peculiar finding which cannot be supported under the Law. We have formed a prima facie opinion that the same was perverse. (31) We find that the Enquiry Officer (Respondent No. 5) in Annexure- D came to a very anomalous conclusion, which we cannot reconcile with. He held : "The charged constable, in his written explanation requested the Enquiry Officer to allow him to engage a lawyer to defend his case. The matter was considered. As the Charges were simple and there was no need of explanation of any law, the charged constable was not allowed to engage a lawyer." (32) We are quite conscious of Rule 10 of the West Bengal Services (Classification, Control and Appeal) Rules, 1971. It is quite clear the provision of Rule 10 does not make it mandatory to allow the delinquent to engage a lawyer. Simply due to non-appointment of a lawyer it cannot be said that the Disciplinary Proceeding has been vitiated. But, in the instant case, we find the petitioner was a constable and the complexities of the case was not kept in mind by the Enquiry Officer (Respondent No. 5) while turning down his prayer. In our opinion, the denial of the respondent No. 5 the Enquiry Officer to afford the opportunity of legal assistance to the petitioner has amounted to denial of reasonable opportunity. (33) The petitioner, who happens to be a constable under the West Bengal Police, does not have any legal claim and there is a scope of loss of his livelihood where he has been visited with a major penalty -by way of removal from service. This was such an appropriate case where he should have been permitted the assistance of a lawyer. (34) In this particular case this has definitely caused prejudice whereby the proceeding can be said to be vitiated. This was such an appropriate case where he should have been permitted the assistance of a lawyer. (34) In this particular case this has definitely caused prejudice whereby the proceeding can be said to be vitiated. In Annexure-B (page 65 of the Application) the petitioner approached the respondent No. 4 for allowing him to engage a lawyer on the ground "..............that the subjectmatter conning within the legal ambit, at which I am quite in the dark, nor do I have any such quality that might make me competent to examine witnesses during the course of enquiry, I implore upon your kindself to allow me to engage a Lawyer for defending my case in a befitting manner." (35) This representation made by the petitioner was not at all considered and the finding arrived at by the Enquiry Officer (Respondent No. 5) which we have quoted hereinabove cannot be said to be a correct approach. On the contrary, we find that the Enquiry Officer (Respondent No. 5) by way of brushing aside the prayer of the petitioner simply rushed through the entire process thereby causing patent illegality. (36) Then the formal enquiry started. (37) In our opinion, the Enquiry Officer (Respondent No. 5) had tried to oversimplify the matter ; on the contrary, it was not so. The issue with regard to second marriage by the petitioner requires proof. Onus lay on the prosecution to have proven its case. It is not simply proving its case beyond a preponderance of probability but substantial evidence was required which was not established. (38) As we are of the view that the finding of the Enquiry Officer (Respondent No. 5) was perverse it has become necessary to interfere. The decision of Divisional Forest Officer and others v. M.Ramalinga Reddy (supra) would not be applicable in the facts of the present case. (39) The Tribunal, by way of remanding the matter by retaining the finding of the Enquiry Officer has also resulted in a miscarriage of justice. It found that the finding of the Disciplinary Authority suffered from inherent lacunae as several documents were not proved before the Disciplinary Proceeding in accordance with law and there was violation of principles of fair play without giving an opportunity to the petitioner to have his say on the said issue. It found that the finding of the Disciplinary Authority suffered from inherent lacunae as several documents were not proved before the Disciplinary Proceeding in accordance with law and there was violation of principles of fair play without giving an opportunity to the petitioner to have his say on the said issue. (40) Now, the Tribunal by way of directing the matter to begin from the stage where the Enquiry Officer has reached its finding on the basis of presumption without any sustainable evidence would obviously make a mockery of the entire issue at hand. (41) The next decision relied on behalf of the respondents/State Deputy Inspector General of Police and another v. K. Ravinder Rao (supra) on the scope of Judicial Review, also in our view, would have no manner of application in the contextual background of the present case. The entire proceeding bristles with perversity and the Tribunal did not address itself to the aforesaid issue, on the contrary, notwithstanding the fact it came to a finding that there were several lacunae, directed an Order of remand from the stage of the finding of the Enquiry Officer which itself was defective, as pointed out in the foregoing paragraphs. (42) Lastly, the reference made on behalf of the respondents in Shamshad Ahmad and otherv. Tilak Raj Bajaj (supra) also would not be of any assistance for the respondents due to the simple reasons as we have found that there have been patent illegality which has occurred in the entire disciplinary proceeding which was passively dealt with by the learned Tribunal, in the event in exercise of our powers of Judicial Review we do not interfere it will not be Just Justice. (43) Keeping in mind the series of lapses and bundle of irregularities that have surfaced right from the initiation to the ultimate stage i.e., the decision of the Tribunal we feel that this is an appropriate case for exercise of our Judicial Review over the entire Order, passed by the Tribunal. While arriving at our conclusion we are conscious of the fact by way of sitting as an Appellate Court we cannot reassess the Order but in the event if we shy away from interfering in the instant matter it would result in failure of justice. While arriving at our conclusion we are conscious of the fact by way of sitting as an Appellate Court we cannot reassess the Order but in the event if we shy away from interfering in the instant matter it would result in failure of justice. (44) In this context, we may well refer to the 3-Judge Bench decision of the Supreme Court in State of U.P. and another v. Johri Mal, AIR 2004 SC 3800 . The Supreme Court in paragraph 30 of the said decision held "that while exercising power of judicial review the Court is more concerned with the decision making process than the merit of the decision itself." It was further held in the said paragraph "But while exercising and scrutinizing the decision making process it becomes inevitable to also appreciate the facts of a given case as otherwise the decision cannot be tested under the grounds of illegality, irrationality or procedural impropriety. How far the Court of judicial review can reappriciate the findings of facts depends on the ground of judicial review."The said paragraph concluded by holding : "Therefore, to a limited extent of scrutinizing the decision making process, it is always open to the Court to review the evaluation of facts by the decision maker." (45) The learned Tribunal quoted the Supreme Court decision of Ministry of Finance and another v. S. B. Ramesh (1998)3 SCC 227 . In our view, the ratio of the decision in Ministry of Finance and another v. S. B. Ramesh (supra) was not correctly applied by the learned Tribunal and its finding to the effect that -"............the degree of proof required in such a departmental proceeding need not be of the same standard as the degree of proof required for establishing the guilt of an accused in a criminal case or in connection with parallel matrimonial proceeding, and for the aforesaid reasons, we are not persuaded to accept that for establishing the charges, as has been framed against the charged officer in this departmental proceeding, proof of solemnization of the second marriage, as required in a criminal trial for the offence under Section 494 of I.P.C. or in a parallel matrimonial proceeding, was also necessary." (46) The learned Tribunal clearly erred in coming to its conclusion. Moreover, we cannot lose sight of the fact that the entire issue which erupted on the basis of the petition made by Smt. Sulekha Samanta (at page 62) for induction of her name as the nominee of the petitioner did not make any formal complaint with regard to bigamy ; nor she took out a case against the petitioner in respect of Section 494 of the Indian Penal Code. (47) The finding of the Tribunal, as extracted hereinabove before us, is not appropriate in the fact situation of the present case. The test with regard to the degree of proof sought to have been applied by the Tribunal on the issue in question relating to the purported marriage by the petitioner was not in accordance with law. In fact, simply on the basis of conjectures and presumptions the whole decision making process was based. (48) All the Forums hitherto lost sight of the fact that the petitioner was visited with a major penalty and as it was a serious charge the same should have been proved not only beyond a preponderance of probability but by some tangible evidence This aspect of the matter has unfortunately been left out from consideration in course of the entire proceeding. In fact, the purported second marriage was not at all proved in the manner as known to law. (49) Accordingly, we set aside the Order passed by the learned Tribunal and direct that the proceeding would start afresh from the stage when the charge was framed and the fresh enquiry would be conducted by any other Enquiry Officer other than the respondent No. 5, the erstwhile Enquiry Officer and the entire Disciplinary Proceeding would be conducted in accordance with law after giving adequate opportunity of hearing to the petitioner as also to the Presenting Officer allowing both sides to adduce such evidence as desired. (50) While disposing of this application certain observations have been made by us which should be clearly understood to have been made for the purpose of proper disposal of this case and would have no bearing or shall not be treated to have any binding effect on the merit of the case either before the Enquiry Officer or before the Disciplinary Authority or in any consequent stage as known to law to which the petitioner would be entitled to canvass his grievance. (51) Since the respondent No. 4 has already directed the petitioner to join his post immediately, in terms of the Order of the Tribunal, we would direct that the petitioner would forthwith join his duty and he will be entitled to his current wages from the date of his joining and the question of his back wages will be subject to the decision arrived at in the Disciplinary Proceeding. There will be no order as to costs. (52) Application disposed of.