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2016 DIGILAW 956 (CAL)

Ashoke Kumar Sarkar v. W. B. S. E. D. C. L

2016-12-02

DEBI PROSAD DEY

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JUDGMENT : Debi Prosad Dey, J. The petitioner used to work as Senior Lines Man in the office of the Chapadanga Group Electric Supply, Hooghly. The allegations against the petitioner along with one Ashoke Kumar Dey are that they harassed one Ananta Maity having service connection no. 4094/Domestic/Consumer No. A35126 under Chapadanga Group Electric Supply and demanded bribe for re-connection. The present petitioner was caught red handed by police at the time of accepting bribe of Rs.5,000/-. A departmental proceeding was also initiated against the petitioner and ultimately the petitioner was found guilty in such departmental inquiry. 2. Both the appeals being first appeal and second appeal preferred by the petitioner were rejected and ultimately an order of dismissal was passed against the present petitioner confirming the period of suspension. 3. The petitioner has thus filed this writ application raising very many points against such departmental proceeding and the manner of disposal of his first and second appeal by the competent authority. The answering respondents have denied all the allegations contained in the writ application and have specifically stated that there was absolutely no illegality in the departmental proceeding and sufficient opportunity of hearing was given to the petitioner. Moreover, there was no violation of the Principles of Natural Justice so as to give any scope to this Court to interfere with the result of such departmental proceeding. At the time of argument learned Advocate for the petitioner wanted to get the writ petition disposed of in terms of the directions given by the Division Bench of this Hon’ble Court in FMA No. 72 of 2015 in respect of the appeal preferred by the answering respondents against Ashoke Kumar Dey. 4. Mr. Mitra learned Advocate appearing on behalf of the WBSEDCL however on instruction submitted that the WBSEDCL is unable to accept such proposal of learned Advocate for the petitioner and wanted to proceed with the case on merit. 5. Learned Advocate for the petitioner submitted that Ashok Kumar Dey and the present petitioner were charged for harassing a bonafide consumer and in connivance with each other, the bribe was demanded by the present petitioner. 5. Learned Advocate for the petitioner submitted that Ashok Kumar Dey and the present petitioner were charged for harassing a bonafide consumer and in connivance with each other, the bribe was demanded by the present petitioner. Ashoke Kumar Dey was also served with an order of dismissal and ultimately before the appellate Court the WBSEDCL authority accepted the judgment of the Division Bench and gave lesser punishment to the extent that Ashoke Kumar Dey would be compulsorily retired from service with the confirmation of the period of suspension and Ashok Kumar Dey would not get anything beyond subsistence allowance already paid to him. However, the appellate Court refused to accept the proposal of WBSEDCL to the effect that fifty percent of pension and fifty percent of gratuity would be forfeited. On the contrary the appellate Court directed to release the pension as well as the gratuity to Ashok Kumar Dey. WBSEDCL company has accepted the said judgment of the Division Bench and did not prefer any special leave application before the Hon’ble Supreme Court. 6. Learned Advocate appearing on behalf of the WBSEDCL tried to distinguish the case of the present petitioner on the ground that learned trial Judge while disposing the writ application no. 15125(W) of 2012 has specifically observed that the present petitioner actually demanded bribe and Ashok Kumar Dey was not present. Secondly, Ashok Kumar Dey was on leave at the relevant point of time and that is why, the case of Ashok Kumar Dey may be differentiated from the case of the present petitioner. The said order of learned trial Judge was passed in absence of the present petitioner and accordingly the observation made by learned trial Judge in the afore mentioned writ application will not be binding upon the present petitioner. Moreover, the Division Bench while considering the case of Ashok Kumar Dey had only considered the quantum of punishment and accordingly the said observation of learned trial Judge cannot be agitated in order to differentiate the case of the present petitioner. 7. It would be appropriate to reproduce the relevant portion of the charge framed against the present petitioner in order to come to a definite finding as to if the case of the present petitioner can be separated from the case of Ashoke Kumar Dey. The portion of the charge is reproduced below: “Thus, it appears that Sri Ashok Kr. Sarkar, Sr. The portion of the charge is reproduced below: “Thus, it appears that Sri Ashok Kr. Sarkar, Sr. L.N.(u/s) in connivance it’s Sri Ashoke Kr. Dey, Station Superintendent (u/s), unauthorized harassed Sri Prasanta Maity, s/o Sri Ananta Kr. Maity by disconnection of the service connection of Sri Ananta Kr. Maity for extracting bribe money from him and unauthorizedly demanded Rs. 40,000/- initially as bribe from Sri Prasanta Maity, and on negotiations the bribe amount was settled at Rs. 15,000/- and Sri Sarkar, Sr. L.M. accepted Rs.5,000/- as part of the bribe money from Sri Prasanta Maity on 30.08.2000 at his (Sri Maity, residence for his personal gain, violating the norms of the Board are also tarnished the image of the Board in the eyes of the members of the public. It further appears that Sri A. K. Dey, S.S.(u/s) also tried to regularize the aforesaid irregular matter by preparing a loss bill after Sri Ashok Kr. Sarkar, Sr. L.K.(u/s) was caught red-handed on 30.08.2000 for his personal gain.” 8. It is therefore apparent that the mischief was committed by the present petitioner in collusion with Ashok Kumar Dey and in fact such conspiracy was executed by the present petitioner by demanding bribe from the aggrieved party. It further appears that when the petitioner was caught red handed at the time of accepting such bribe, Ashok Kumar Dey, though on leave illegally came back to his office and tried to regularize the aforesaid irregular matter by preparing a loss bill. Had there been no collusion in between the present petitioner and Ashoke Kumar Dey, Sri Dey ought not to have returned to his office and ought not to have prepared a loss bill in order to regularize the irregular matter. That clearly goes to show that there was active connivance between the petitioner and Ashoke Kumar Dey in doing such mischief and both the persons are equally liable for committing such offence. Fortunately, Ashoke Kumar Dey was holding a respectable post at the time of such occurrence and that is why the WBSEDCL Company had accepted the judgment of the Division Bench without preferring any appeal against such order. Learned trial Judge in writ petition no. 15125(W) of 2012 set aside the punishment of Ashoke Kumar Dey on the ground that such punishment was shockingly disproportionate relying on AIR 1983 SC 454 ( Bhagat Ram Vs. Union of India). Learned trial Judge in writ petition no. 15125(W) of 2012 set aside the punishment of Ashoke Kumar Dey on the ground that such punishment was shockingly disproportionate relying on AIR 1983 SC 454 ( Bhagat Ram Vs. Union of India). The Division Bench of this Hon’ble High Court thereafter directed the answering respondents to provide pension and gratuity to Ashoke Kumar Dey by confirming the period of suspension and by ordering for compulsory retirement of such Ashoke Kumar Dey. 9. Admittedly the present petitioner has been acquitted from the criminal case on the ground of lack of sanction and as such the criminal case is not staring on the face of the petitioner at all. The state being prosecuting agency did not prefer any appeal/revision against such order passed by learned Special Judge, at Hooghly. 10. I fail to understand the logic of answering respondents to differentiate the case of the present petitioner with the case of Ashok Kumar Dey. Undoubtedly Ashoke Kumar Dey in collusion with the present petitioner did such mischief and he tried to regularize the matter even when he was on leave. Such action of Ashoke Kumar Dey clearly reveals the participation of Ashoke Kumar Dey in doing such mis-chief in collusion with the present petitioner. Therefore, the present petitioner on the same footing also should get the self-same benefit as has been extended to Ashoke Kumar Dey. On that score I do find sufficient reasons to direct the answering respondents to impose punishment upon the present petitioner in terms of the directions given by the Division Bench of Hon’ble High Court at Calcutta in FMA No. 72 of 2015. 11. It is needless to say that the Division Bench has clearly expressed in such judgment that the lesser punishment viz. compulsory retirement from service with effect from date of final order and confirmation of suspension with observation that the respondent will not get anything beyond the subsistence allowance already paid to him be extended to Ashoke Kumar Dey. In my considered view, I find the same punishment should be meted out to the present petitioner. The Division Bench has further been pleased to hold that gratuity being a statutory right, cannot be taken away and pension is not only the pension to the concerned employee but it also includes pension for the whole family. In my considered view, I find the same punishment should be meted out to the present petitioner. The Division Bench has further been pleased to hold that gratuity being a statutory right, cannot be taken away and pension is not only the pension to the concerned employee but it also includes pension for the whole family. It may safely be stated that the conviction of the petitioner in respect of the charges levelled against him cannot be disturbed. Simultaneously it may also be stated that the punishment inflicted upon the present petitioner does not match with the punishment given to another co-accused of the self-same offence. The petitioner has been subjected to discrimination at least in matters of getting punishment and the petitioner has not been equally treated with co-accused by the respondents. 12. I, therefore, set aside the punishment inflicted upon the petitioner and send the matter back to appropriate appellate authority of the respondents company for considering a punishment upon him in terms of the decision given by the Division Bench of this Hon’ble High Court in FMA No. 72 of 2015. 13. The alleged incident took place in the year 2006 and in the meantime 10 years have been lapsed. 14. I, therefore, direct the answering respondent/competent appellate authority to dispose of the matter within six weeks from the date of receipt of the certified copy of this order. 15. The writ application is thus disposed of in terms of the aforesaid order. No order as to costs.