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2011 DIGILAW 567 (CAL)

Ananda Kumar Ghosh v. STATE OF WEST BENGAL

2011-04-20

ASHIM KUMAR BANERJEE, MRINAL KANTI CHAUDHURI

body2011
Judgment Banerjee, J. 1. THE petitioner was a constable under the State Police Service. In 1988 petitioner was implicated in a criminal case initiated under Section 302 of the Indian Penal Code. THE Police arrested him. THE authority placed him under suspension vide order dated December 30, 1988 and was granted subsistence allowance @ rupee one. Pertinent to note, that time he was in custody. THE petitioner was released subsequently on bail on April 1, 1989 however, the authority did not increase his subsistence allowance. 2. ON March 20, 1996 the authority issued charge-sheet on the ground that he was involved in a murder which defaced the image of the Police department. The petitioner made representations for enhancement of his subsistence allowance. The authority did not consider the same. He was proceeded in an enquiry where he was found guilty of the offence. He made representation before the Enquiry Officer for supply of G.D. Entry. He was not given. Subsequently, additional charge-sheet was given as he failed to appear at the roll call on more than one occasion. Vide judgment and order dated August 23, 2001 the Additional Session Judge, Darjeeling acquitted him of the charges on the plea that the authority could not assist the prosecution to have a conviction. According to the learned Judge, the extra judicial confession so relied by the prosecution was conspicuously absent in the written complaint. There was no attempt to get any such confession recorded under Section 164 of the Criminal Procedure Code. The learned Judge acquitted him by giving benefit of doubt as according to him it would be unsafe to come to a conclusion that the accused had committed the alleged offence. The petitioner gave reply to the show cause notice on October 3, 2002 where he relied upon the decision of the criminal Court. The authority gave him a second show cause notice why he would not be dismissed from service. He prayed for sometime to give reply. The authority did not adhere to such request and pass a final order of dismissal vide order dated October 29, 2002. Being aggrieved, he preferred an appeal. The appellate authority confirmed the order of dismissal vide order dated December 5,2002. He filed an application before the Tribunal challenging the order of dismissal. The Tribunal dismissed his application vide judgment and order dated June 15, 2009 impugned in his writ petition. 3. MR. Being aggrieved, he preferred an appeal. The appellate authority confirmed the order of dismissal vide order dated December 5,2002. He filed an application before the Tribunal challenging the order of dismissal. The Tribunal dismissed his application vide judgment and order dated June 15, 2009 impugned in his writ petition. 3. MR. Pinaki Dhole, learned Counsel appearing for the petitioner in support of the application contended before us that the charge-sheet was grossly delayed. The authority initially proceeded on the basis of April 4 incident for his involvement in a criminal case and issued a charge-sheet on the same. Subsequently, they submitted additional charge-sheet for subsequent events giving rise to fresh cause of action. Such attempt was not permissible in law. MR. Dhole further contended that the authority was so biased that they did not extend proper subsistence allowance even after the petitioner was released on bail with effect from April 1,1989. 4. MR. Dhole relied on the following decisions :- i) Unreported decision in W.P. No. 8134 (W) of 1998 in the case of Shyamapada Mondal v. State of West Bengal and Others. ii) Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Another reported in All India Reporter 1999 Supreme Court Page-1416 Hi) G.M. Tank v. State of Gujarat and Another reported in All India Reporter 2006 Supreme Court Page-2129 : (2006)2 WBLR (SC) 388. iv) State of West Bengal and Others v. Vidyasagar Panday and Another reported in 2011 Volume-I Calcutta Law Journal (Calcutta) Page- 57 : (2011)1 WBLR (Cal) 337. Mr. Sujit Kumar Mitra, learned Counsel appearing for the State while opposing the application contended that the authority gave him adequate opportunity to defend himself in the said proceeding. He declined to adduce any evidence in support of his defence. He did not take any other plea in the disciplinary proceeding save and except relying on the decision of the criminal Court. Hence, the authority was right in dismissing him from service. Such decision was affirmed by the Tribunal and this Court could not interfere with the same. 5. MR. Mitra relied on the following decisions :- i) Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh and Another reported in 2004 Volume-VIII Supreme Court Cases Page-200. ii) Ajit Kumar Nag v. General Manager, Indian Oil Corporation Ltd. and Others reported in All India Reporter 2005 Supreme Court Page-4217. 6. IN the case of Capt. 5. MR. Mitra relied on the following decisions :- i) Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh and Another reported in 2004 Volume-VIII Supreme Court Cases Page-200. ii) Ajit Kumar Nag v. General Manager, Indian Oil Corporation Ltd. and Others reported in All India Reporter 2005 Supreme Court Page-4217. 6. IN the case of Capt. M. Paul Anthony (supra), the Apex Court considered the factual matrix and found that the authority was biased. The Apex Court observed that the judgment of the criminal Court must have a bearing. The Apex Court observed, "the whole case of the prosecution was thrown out and the applicant was acquitted. IN this situation, therefore, where the appellant was acquitted by the judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings, to stand." In the case of G. M. Tank (supra), the Apex Court considered its decision in the case of Capt. M. Paul Anthony (supra) and once again observed, "in our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in the Paul Anthony's case will apply. "The Division Bench of this Court in the case of State of West Bengal v. Vidyasagar Pandey (supra) followed the decision of G.M. Tank (supra) and affirmed the decision of the Tribunal directing reinstatement on the basis of the decision of the criminal Court. 7. IN the case of Shyamapada Mondal (supra) one of us (Ashim Kumar Banerjee, J.) sitting singly considered an identical situation and applied the ratio as decided in the case of Paul Anthony (supra) and directed reinstatement. 8. 7. IN the case of Shyamapada Mondal (supra) one of us (Ashim Kumar Banerjee, J.) sitting singly considered an identical situation and applied the ratio as decided in the case of Paul Anthony (supra) and directed reinstatement. 8. IN the case of Krishnakali Tea Estate (supra), the Apex Court observed that order of the Criminal Court had no bearing on the proceeding before the labour Court. This observation was made in the context that the acquittal by the criminal Court was based on the fact that the prosecution did not produce sufficient material to establish its charge. The Criminal Court observed that the prosecution totally failed to prove the charges. The Apex Court observed that the decision in the case of Paul Anthony (supra) was based upon an ex parte departmental proceeding whereas before the labour Court his management laid evidence which was different from the evidence laid by the prosecution in the criminal case. In the case of Ajit Kumar Nag (supra), the Apex Court observed that acquittal by the criminal Court would not preclude the employer from holding the departmental proceeding. Such issue was not raised by anyone before us. Hence, this decision would have no relevance. 9. WE have considered the rival contentions. WE have perused the judgment and order of the Tribunal. The Tribunal examined the findings of the enquiry officer as well as the decision of the criminal Court. WE are of the view that the Tribunal's observation that it is acquittal on technical ground, was perhaps not correct. The criminal Court in its reasoned decision ultimately gave an honourable acquittal to the accused as we find from the said decision. WE do not know whether State filed any appeal or not as against the said decision. Hence, the said decision is binding upon all concerned. The charge brought against the petitioner in the departmental proceeding is identical. The materials to support such charge would obviously be same. Hence, there could not be a different decision on the same issue and the decision of the criminal Court should have been taken into consideration by the authority before passing an order of dismissal. 10. THE enquiry officer in his report recorded that the delinquent had not stated anything in the enquiry save and except praying for murcy. Hence, there could not be a different decision on the same issue and the decision of the criminal Court should have been taken into consideration by the authority before passing an order of dismissal. 10. THE enquiry officer in his report recorded that the delinquent had not stated anything in the enquiry save and except praying for murcy. THE disciplinary authority also observed that the acquittal in the criminal case was on "technical grounds due to lapses of representation/citation of the evidence by the prosecution side/Investigating Officer before the Hon'ble Court of law after killing the specified period allotted for completion of investigation." The reviewing authority echoed the disciplinary authority by observing that acquittal in criminal case was "only on technical grounds". The Tribunal accepted the views of the disciplinary authority as well as the reviewing authority. 11. IF we consider the evidence so discussed by the criminal Court in the criminal trial and the evidence as surfaced in the domestic enquiry it would be difficult to come to a definite conclusion whether or not the petitioner could be held to be guilty of the offence. IF we strictly follow Paul Anthony (supra) we would have to give him reinstatement as the charges were identical and based upon a singular fact. At the same time, we find that the judgment of the criminal Court did record deficiency on the part of the prosecution evidence. It could not be per se be termed as technical ground. At the same time it could not be said "honorable acquittal". It was a border line case. 12. IN this backdrop, we feel, interest of justice would sub-serve if we modify the punishment by directing the authority to impose the punishment of compulsory retirement to be recorded as on the date of passing of the order of dismissal by the disciplinary authority. It is most unfortunate that the authority did not pay him subsistence allowance even after he had been released on bail. Subsistence allowance at the rate of one rupee was apt when he was in custody enjoying State hospitality. Once he was released on bail and was continued to be under suspension the authority must give him adequate subsistence allowance in terms of the service rules. 13. Subsistence allowance at the rate of one rupee was apt when he was in custody enjoying State hospitality. Once he was released on bail and was continued to be under suspension the authority must give him adequate subsistence allowance in terms of the service rules. 13. WE direct the authority to give him subsistence allowance at the appropriate rate to be calculated on and from April 1,1989 till October 27, 2002 when he was dismissed from service. 14. THE entire subsistence allowance must be paid with a period of two weeks from the date of communication of this order. The authority would also calculate his retrial benefit and extend the same within two months thereafter.