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2014 DIGILAW 766 (CAL)

Nandan Kumar Barua v. State of West Bengal

2014-08-13

ISHAN CHANDRA DAS, JAYANTA KUMAR BISWAS

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JUDGMENT : Jayanta Kumar Biswas, J. The petitioner in the WPST under Article 226 of the Constitution of India dated August 11, 2014 is questioning an order of the West Bengal Administrative Tribunal dated June 18, 2014 dismissing his OA No. 1539 of 2012. 2. The petitioner filed the OA feeling aggrieved by an order of punishment dated November 5, 2012 passed in a disciplinary proceeding initiated against him. It was an order of the Governor imposing the penalty in exercise of power conferred by R. 10(11) of the West Bengal Services (Classification, Control & Appeal) Rules, 1971. 3. The penalty was as follows: "reduction to 2nd lower stage in the time scale of pay for a period of two years upon Shri Nandan Kumar Barua, the then Superintendent of the Howrah District Correctional Home at the material time with the direction that the delinquent will not earn increments of pay during the period of such reduction and on expiry of such period, the reduction will not have the effect of postponing the future increments of his pay under rule 8(iv) of WBS (CC&A) Rules 1971. The Charged officer would be debarred from promotion during the period of his undergoing the penalty and such debarment from promotion will not be treated as penalty." 4. The disciplinary proceeding was initiated by the Governor by issuing a charge-sheet dated May 5, 2009. At this date the petitioner was the Burdwan District Correctional Home Superintendent. Six charges were framed against him. He submitted his statement of defence dated June 4, 2009 dealing with all the six charges and contending that, on the facts, there was no reason to say that he had committed any misconduct. 5. An inquiry was conducted by an inquiring authority. In support of the charges three witnesses (one Biswajit Basu, an under trial prisoner, one Rupa Sankar, an under trial prisoner, and one Sunirmal Ghosh, an AIG of CS) were examined; and in his defence the petitioner examined six witnesses. In his report dated July 22, 2010 the inquiring authority recorded that only the first charge was partially substantiated. 6. In support of the charges three witnesses (one Biswajit Basu, an under trial prisoner, one Rupa Sankar, an under trial prisoner, and one Sunirmal Ghosh, an AIG of CS) were examined; and in his defence the petitioner examined six witnesses. In his report dated July 22, 2010 the inquiring authority recorded that only the first charge was partially substantiated. 6. The first charge framed against the petitioner is quoted below: "That on 18.11.08 Sri Nandan Kumar Barua, while performing his duty as the Superintendent, Howrah District Correctional Home received a letter dated 17.11.08 of the Officer-in-charge, Sankrail Police Station, Howrah wherein he was informed that veteran criminal Dilip Singh, then an under trial prisoner of Howrah District Correctional Home, might escape from custody. Despite receipt of this forewarning from police neither did he transfer the prisoner to Presidency Correctional Home nor lodged him in the cell of Howrah District Correctional Home on security grounds thus allowing the prisoner to escape on 19.12.08 from Howrah District Correctional Home by scaling the perimeter wall of vacant female enclosure, he failed to exert the utmost vigilance for the prevention of escape of the said prisoner and guarding of the Correctional Home in contravention of Rule 191(1), 192(1), 192(3) of West Bengal Jail Code Volume-I and Rule 3 and 4 of the West Bengal Government Servants' Conduct Rules, 1959." 7. The contents of the written information received by the petitioner on November 18, 2008 from the Sankrail police station officer in charge are quoted below: "I would like to inform you that a secret information received at this end that veteran criminal Dilip Singh who is now under your custody in c/w Sankrail PS case No. 173/07 dated 29.5.07 u/s 341, 186, 333, 353, 326, 307, 302, 120B IPC & 25, 27 Arms Act, some criminal elements may attempt to cause escape of U.T.P. Dilip Singh during his movement from your Correctional Home to Howrah Court. Hence you are requested to arrange adequate force to escort him by requisition to R.I. Howrah well in advance. This is most urgent." 8. Hence you are requested to arrange adequate force to escort him by requisition to R.I. Howrah well in advance. This is most urgent." 8. In his statement of defence dated June 4, 2009 the petitioner dealt with the accusations made in the first charge saying as follows:- On receipt of the written information from the Sankrail police station officer in charge on November 18, 2008 he ensured that adequate police force was requisitioned for the prisoner's production in court from the correctional home. He called the security personnel including the Chief Controller, Controller, three Senior Head Warders and Senior Warders to his office for discussion and directed all concerned to keep a special and close watch on the prisoner. He ordered that the prisoner should be kept in the top (2nd) floor ward no.6 of jail no.2 for preventing him free access to the compound below and elsewhere. The ward was more secure than any ward elsewhere inside the home. Although, in view of the Jail Code r.842, prior approval of the court concerned was necessary for the prisoner's transfer elsewhere, process maintaining procedural norms was initiated for his removal to Presidency Correctional Home. During pendency of the process the prisoner escaped on December 19, 2008. 9. As to contravention of the provisions of rr.191 and 192 of the Jail Code he pointed out that they were meant for the subordinate officers; and he contended that there was no question of his contravening any provision of the rules. 10. The inquiring authority's observation on the first charge is quoted below: "Considering all, it can be stated that the charge sheeted officer, the then Superintendent, Shri Nandan Kumar Barua had partial responsibility due to the fact that despite receiving both verbal and written communication that the under-trial inmate Dilip Singh might attempt escaping he did not take any concrete effort to segregate the inmate, either within the correctional home itself or beyond and not even cared to inform his superiors in the Inspectorate. Article of Charge-I against Shri Nandan Kumar Barua is partially substantiated on that ground." 11. Article of Charge-I against Shri Nandan Kumar Barua is partially substantiated on that ground." 11. The inquiring authority's final observation is quoted below: "8.Considering all the facts and circumstances of the case, all the papers presented as evidence, all the persons deposing before the undersigned as the Inquiring Authority, I do hereby report to the Disciplinary Authority that out of six (6) charges against Shri Nandan Kumar Barua, the then Superintendent, Howrah District Correctional Home and present Superintendent, Burdwan District Correctional Home five could not be substantiated. Article of Charge-I, however, has been partially substantiated as the officer acted half-heartedly on the specific information received from the police authority regarding alleged escape bid by the under-trial inmate, Dilip Singh which ultimately resulted in his escape from the precincts of the correctional home." 12. The disciplinary authority accepting the report and findings of the inquiring authority proposed to impose the penalty of censure subject to the approval of the West Bengal Public Service Commission. 13. By a letter dated April 28, 2011 the Commission Secretary informed the Principal Secretary concerned as follows: "After careful examination of the case records as forwarded, the Commission is of the opinion that the delinquent is partially guilty in respect of Article of charge No.I and not guilty of the remaining 5(five) charges framed against him. As regards penalty, the Commission having considered the nature seriousness and gravity of the misconduct committed by the Charged Officer and all other aspects of the case is of the view that the ends of justice will be met if the penalty of reduction to 2nd lower stage in the time scale of pay for a period of two years with the direction that the delinquent will not earn increments of pay during the period of such reduction and on expiry of such period the reduction will not have the effect of postponing the future increments of his pay under rule 8(iv) of WBS (C.C&A) rules, 1971 is imposed upon the delinquent." 14. Accepting the advice of the Commission, the Governor passed the final order dated November 5, 2012 inflicting the punishment suggested by the Commission. Feeling aggrieved, the petitioner moved the Tribunal. The respondents contested the OA by filing a Reply. They, inter alia, took the plea that the petitioner had not exhausted the statutory appellate remedy. The petitioner filed a Rejoinder. Accepting the advice of the Commission, the Governor passed the final order dated November 5, 2012 inflicting the punishment suggested by the Commission. Feeling aggrieved, the petitioner moved the Tribunal. The respondents contested the OA by filing a Reply. They, inter alia, took the plea that the petitioner had not exhausted the statutory appellate remedy. The petitioner filed a Rejoinder. The Tribunal, however, not entertaining the non-exhaustion of appellate remedy plea, examined the case extensively and dismissed the OA on merits. 15. Mr. Bandopadhyay appearing for the petitioner has argued as follows. The finding of the inquiring authority on the first charge was based on no evidence. He did not specify which part of the first charge was substantiated. The principal witness in support of the charge was examined in the petitioner's absence. The petitioner was asked only to make his comments on the recorded testimony. The procedure caused a grave breach of natural justice. The testimony of the witness, however, did not prove any part of the first charge. 16. In support of his contentions Mr. Bandopadhyay has relied on a single bench decision of this court in Shri Swapan Ray v. Indian Airlines Ltd. & Ors., 1996 (1) CHN 147 and the Supreme Court decision in Anil Kumar v. Presiding Officer & Ors., (1985) 3 SCC 378 . He has also relied on s.64 of the West Bengal Correctional Services Act, 1992 for showing how transfer of a prisoner is made. 17. Mr. Majumdar appearing for the State has submitted as follows. The petitioner's statement of defence will reveal that he did not deny the correctness of the first charge, and that he rather accepted the charge. The inquiry report based on evidence will reveal that the petitioner, though was the key person for everything concerning the correctional home, did not take necessary steps for preventing the under trial prisoner's escape, in spite of the fact that he had been given specific written information that the prisoner was likely to escape from custody. Hence it is wrong to say that the petitioner was punished, though no part of the first charge was proved. 18. Mr. Majumdar has relied on the decision of the Supreme Court in State of UP & Ors. Hence it is wrong to say that the petitioner was punished, though no part of the first charge was proved. 18. Mr. Majumdar has relied on the decision of the Supreme Court in State of UP & Ors. v. Nand Kishore Shukla & Anr., (1996) 3 SCC 750 and has submitted that since the petitioner did not question the inquiry report and the charge-sheet, there is no scope for interfering with either of them. His further submission is that, in any case, since the charge-sheet has not been questioned, if this court finds any fault with the inquiry report, the respondents are entitled to hold a de novo inquiry. He has also referred to r.69A of the West Bengal Jail Code for showing what position the petitioner, qua the Superintendent of the correctional home, was holding. 19. The question that has arisen is whether the finding of the inquiring authority that the first charge against the petitioner was partly substantiated was based on any evidence. 20. Although the question was the principal question that arose from the pleadings of the parties submitted before the Tribunal, it is evident from the order of the Tribunal that the Tribunal writing quite a long order did not closely examine the question. It is important to mention here that the question of availability of the statutory departmental appeal remedy is no longer significant, because the respondents did not raise it before the Tribunal at the very threshold and after the Tribunal has decided the OA on merits, there is now no scope for relegating the petitioner to the appellate authority. 21. The accusations in the first charge were that in spite of receipt of a letter of the Sankrail police station officer in charge on November 18, 2008 the petitioner, as the Howrah District Correctional Home Superintendent, neither transferred the prisoner to the Presidency Correctional Home nor lodged him in the cell of the Howrah District Correctional Home on security grounds and thus allowed the prisoner to escape from the correctional home by scaling the perimeter wall of vacant female enclosure on December 19, 2008; and that his failure to exert the utmost vigilance and guarding for the prevention of the prisoner's escape amounted to contravention of the rules. 22. 22. There was no provision which created a statutory or administrative obligation of the petitioner to transfer the prisoner to other correctional home the moment he received the written information. It is important to note that the written information was that the prisoner was likely to escape during his movement from the correctional home to court. Hence the prisoner's non-transfer to the Presidency Correctional home could not and did not amount to a misconduct of the petitioner. 23. No evidence was given to refute the petitioner's case that on receipt of the information he convened a meeting of all concerned, made adequate arrangements for preventing the prisoner's escape, directed that the prisoner should be lodged in a more secure cell in the correctional home; and that even before approval of the court for transferring the prisoner elsewhere, a process was initiated for transferring him to the Presidency Correctional Home. 24. The principal witness examined in support of the first charges was one Sunirmal Ghosh. The charge-sheet was issued on May 5, 2009. The inquiring authority held the initial hearing on July 29, 2009. It was known to the presenting officer that Sunirmal would retire from the service on August 31, 2009, and that he was the key prosecution witness, because as AIG of CS he had conducted the initial inquiry into the incident of the prisoner's escape. 25. The inquiring authority held the second hearing on August 20, 2009 when the prosecution examined two witnesses and one witness was examined as a defence witness. Sunirmal was not examined. 26. Sunirmal's testimony was recorded in the petitioner's absence on August 24, 2009. He was never made available to the petitioner for cross-examination, though he was available for the purpose. His retirement from the service was not a bar to make him available to the petitioner for cross-examination. The petitioner was rather asked to make his comments on Sunirmal's already recorded testimony. In our opinion, this caused a grave violation of the principle of natural justice. Sunirmal's testimony was the whole basis of the finding of guilt. 27. Even assuming that Sunirmal's testimony could be relied on, we are unable to see how his testimony proved any part of the first charge framed against the petitioner. In our opinion, this caused a grave violation of the principle of natural justice. Sunirmal's testimony was the whole basis of the finding of guilt. 27. Even assuming that Sunirmal's testimony could be relied on, we are unable to see how his testimony proved any part of the first charge framed against the petitioner. Nothing in what Sunirmal testified proved anything to hold that in spite of receipt of the written information from the Sankrail police station officer in charge on November 18, 2008 the petitioner neither transferred the prisoner to Presidency Correctional Home nor lodged him in a more secure cell of Howrah District Correctional Home, where the prisoner was lodged. 28. As to Sunirmal's testimony, in his report the inquiring authority said as follows: "Shri Ghosh pointed out certain alleged aberrations in the correctional homes, which, if rectified, could have prevented the incident of escape. The following are the alleged aberrations: 1. The responsibility of supervision over 'Jharu Chali' should not have been given to an under-trial inmate and even if given should have been done only under the direct supervision of a grading staff. 2. The keys to unused spaces within the premises should have been with the Chief Controller and not the Head Warder. 3. The key, even if kept with the Head Warder should not have been handed over to a UTP without direct supervision. 4. There was no visit by the Superintendent or the Chief Controller to the abandoned. Female Ward. 5. Tree branches etc were used to be kept in the open. 6. Despite receiving specific information on escape bid by the TTP Dilip Singh, no preventive action was taken by the administration of the correctional home. 7. No records of regular searches by either the Superintendent or the Chief Controller were available. 8. The barrier between the two parts of the CH (so called Jail-1 and Jail-2) was unprotected. 9. Minute Book of the Superintendent was perfunctorily maintained and even the information received from the Police Station on the escape bid of UTP Dilip Singh was not recorded in the said minute book. 10. Minute Book of the Chief Controller too lacked precision and there too was no mention of the alleged escape bid by Dilip Singh." 29. 9. Minute Book of the Superintendent was perfunctorily maintained and even the information received from the Police Station on the escape bid of UTP Dilip Singh was not recorded in the said minute book. 10. Minute Book of the Chief Controller too lacked precision and there too was no mention of the alleged escape bid by Dilip Singh." 29. The testimonies of the prosecution witnesses having proved nothing related to the accusations made in the first charge, we are unable to see how the inquiring authority could reach the conclusion that the evidence in the records partially substantiated the first charge against the petitioner. We are, therefore, of the view that the petitioner was and is fully justified in contending that the finding of the inquiring authority that the first charge was partially substantiated was based on no evidence. It was a perverse finding. 30. As to Sunirmal's testimony, it can at best be said that the omissions and commissions mentioned by him were his reflections on the petitioner's competence. The inquiring authority also saying that the petitioner was partly responsible for the prisoner's escape, because he had taken the precautionary steps only half-heartedly, was, in reality, reflecting on the petitioner's competence. No one gave any evidence that the petitioner prevented any one from doing anything or did anything for facilitating the escape. 31. Failure, competence and incompetence all relate to relative concepts; for the same work of one person in the competence assessment of others may produce various different remarks. Failure to do a thing or incompetence of an employee is not a misconduct unless the conduct rules say so. What according to Sunirmal was necessary, may be was not necessary according to the petitioner. What according to the inquiring authority was half-hearted step, may be the whole hearted step according to the petitioner. 32. Hence these were no consideration for deciding whether any willful omission or commission of the petitioner constituted a misconduct; for an omission or commission, not willful, could not be a misconduct; nor was relevant the moral responsibility aspect. A misconduct attracting a penalty is a thing distinctly separate from all these. 33. The disciplinary authority, it seems to us, mechanically accepted the findings of the inquiring authority. A misconduct attracting a penalty is a thing distinctly separate from all these. 33. The disciplinary authority, it seems to us, mechanically accepted the findings of the inquiring authority. It is true that since he was not disagreeing with the findings of the inquiring authority, it was not necessary for him to record independent finding on the first charge. The Commission also gave advice for a higher punishment, it is evident, mechanically accepting the finding of guilt recorded by the inquiring authority. 34. Simply because the petitioner did not question the correctness of the inquiry report, it cannot be concluded that he accepted the findings of the inquiring authority. He made representation against the findings and consistently contended that the charge against him had not been proved. 35. When it is evident that evidence taken down by the inquiring authority did not prove any part of the first charge, there is no scope for a de novo inquiry. Mere existence of the charge-sheet does not entitle the disciplinary to hold a de novo inquiry, take down evidence once again and make a second attempt to prove the first charge. The Tribunal committed an error of law by not examining the issue closely. In our opinion, the punishment order based on the findings of the inquiring authority not based on any evidence cannot be sustained. 36. For these reasons, we set aside the Tribunal order, allow the WPST and order as follows. The OA No. 1539 of 2012 is allowed. The punishment order dated November 5, 2012 is set aside. The finding of guilt of the inquiring authority on the first change is also set aside. The respondents are directed to give the petitioner all consequential benefits, according to law, within four weeks from the date this order is served on them. No costs. Certified xerox.