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2017 DIGILAW 917 (GAU)

Babulal Das v. State of Assam

2017-07-13

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. M.K. Sarma, learned counsel for the petitioner. Also heard Mr. S.K. Medhi, learned Senior Standing counsel for the Gauhati High Court. The original petitioner, Babulal Das was serving as a Bench Assistant in the Court of the learned CJM, Tinsukia at the relevant point of time, when the charges involved in this writ petition were leveled against him. 2. This writ petition is against the order dated 16.01.2006 of the learned CJM, Tinsukia in a disciplinary proceeding related to No. JDLT/1224/2005, dated 28.12.2005, whereby the original petitioner Babulal Das was dismissed from service. The said order of dismissal was assailed in WP(C) No. 1835/2006, wherein by the judgment and order dated 08.05.2015, the writ petition was allowed on the ground that in an earlier writ proceeding being Civil Rule No. 6209/1998, the respondent authorities were not given the liberty to further proceed against the charge of misappropriation of Rs. 1000/-. Against the said judgment and order of 08.05.2014, the writ appeal being WA No. 6/2015 was preferred by the respondent authorities. During the pendency of the said writ appeal, the original writ petitioner, Babulal Das had died. Consequently, the legal heirs/representatives of the original writ petitioner, Babulal Das were substituted by an order dated 11.11.2016 in IA(C) No. 736/2016. Consequent upon, the legal heirs of the original writ petitioner. Babulal Das being substituted as the writ petitioners/respondents in the said writ appeal, the writ appeal was further pursued. By the order dated 15.05.2017, in WA No. 6/2015, the Division Bench of this Court had allowed the appeal and had remanded the WP(C) No. 1835/2006 for being heard afresh on the issues which remained unanswered earlier i.e., the charge of misappropriation of Rs. 1000/- leveled against the original petitioner. 3. Mr. M.K. Sarma, learned counsel who earlier represented the original writ petitioner, Babulal Das and, thereafter continued to represent the legal heirs of Babulal Das in the writ appeal also appeared before this Court on behalf of the petitioner. 4. 1000/- leveled against the original petitioner. 3. Mr. M.K. Sarma, learned counsel who earlier represented the original writ petitioner, Babulal Das and, thereafter continued to represent the legal heirs of Babulal Das in the writ appeal also appeared before this Court on behalf of the petitioner. 4. As an intra-court appellate proceeding is a continuation of the original writ proceeding and the required substitution having been made in course of the pendency of the writ appeal and, thereafter, the matter having been remanded back for fresh adjudication on the issues raised in the writ petition, this Court deems it appropriate that no further substitution of the legal heirs is required in this writ proceeding and the earlier substitution done by the order dated 11.11.2016 in IA(C) No. 736/2016 would also hold its force in the present writ proceeding. In other words, this Court is of the view that the legal representatives of the original petitioner, Babulal Das are to be construed to be the writ petitioners before this Court. Further the learned counsel for the petitioner, Mr. M.K. Sarma, nor Mr. S.K. Medhi, learned Senior standing counsel for the respondents objects to the aforesaid proposition and from such view of the matter also, this Court deems it appropriate that the legal heirs of the original writ petitioner, Babulal Das be construed to be the appropriate writ petitioners in the present case and the writ petition be proceeded for its hearing. 5. For the sake of brevity and convenience, Babulal Das is referred to as the original writ petitioner in the order to be followed. 6. The background facts which occurred prior to the institution of this writ proceeding is that a show cause notice dated 16.11.1992 was issued to the original writ petitioner under Rule 9 of the Assam Services (Discipline and Appeal) Rules 1964 read with Article 311 of the Constitution of India, requiring him to show cause against 6 charges leveled therein. Subsequently, by another show cause dated 02.07.1993, 3(three) further charges were added and one of them was that while the original petitioner was serving as a Bench Assistant in the Court of the learned CJM, Tinsukia, during the period from 29.06.1991 to 31.08.1992, he had received in the Court a bail amount of Rs. Subsequently, by another show cause dated 02.07.1993, 3(three) further charges were added and one of them was that while the original petitioner was serving as a Bench Assistant in the Court of the learned CJM, Tinsukia, during the period from 29.06.1991 to 31.08.1992, he had received in the Court a bail amount of Rs. 1000/- from the bailer, namely, Gobinda Goraik and Sushanta Kar on 21.12.1991, but instead of depositing the said amount in the Court, the original writ petitioner misappropriated the amount thereby causing loss of Government revenue and also causing unnecessary harassment to the bailer. 7. By the order dated 26.10.1998 of the learned CJM, Tinsukia, who was the disciplinary authority, 3(three) of the charges, namely, charge Nos. 2, 3 and 6 of the first show cause notice and one of the charges of the second show cause notice being the charge No. 1 were held to have been proved and, accordingly, the original writ petitioner was dismissed from service. 8. The charge No. 1 of the subsequent show cause notice, which was also held to have been proved and relied upon for dismissing the original writ petitioner from service as per the order dated 26.10.1998 relates to the aforesaid charge of misappropriating the amount of Rs. 1000/- being the bail amount deposited by 2 (persons), namely, Gobinda Goraik and Susanta Kar. 9. Being aggrieved by the said order of dismissal of 26.10.1998, the original writ petitioner preferred a writ petition before this Court being Civil Rule No. 6209/1998. The said writ petition was disposed of by the judgment and order dated 03.03.2004, by which the order of dismissal was interfered with and one of the grounds for such interference was that the disciplinary authority being the learned CJM could not have deposed himself as a witness against the original writ petitioner. 10. Be that as it may, this Court by the said judgment and order dated 03.03.2004 had also arrived at a conclusion that 3 (three) of the charges being charge Nos. 2, 3 and 6 of the first show cause notices were un-sustainable and based on no evidence. But against the other charge, which was referred as the fourth charge, which pertains to misappropriation of the said amount of Rs. 2, 3 and 6 of the first show cause notices were un-sustainable and based on no evidence. But against the other charge, which was referred as the fourth charge, which pertains to misappropriation of the said amount of Rs. 1000/- from the concerned two bailers, this Court was of the view that the said charge was a serious charge and, accordingly, in respect of the said charge, liberty was granted to the respondent authorities to proceed against the original petitioner. 11. In the aforesaid factual background, the show cause notice dated 10.06.2005 was issued to the original writ petitioner. In the said show cause notice of 10.06.2005, the charges leveled against the original petitioner was that while he was serving as a Bench Assistant in the Court of the learned CJM, Tinsukia for the period from 29.06.2001 to 30.01.1992, he had received an illegal gratification of Rs. 1000/- from Govinda Gaik and Susanta Kar on or about 25.11.1991, ostensibly towards the forfeited bail amount of Rs. 1000/- in MC No. 60/1991, State Vs. Govinda Gaik under Section 446 Cr.P.C., arising out of Case No. 11/1985, and that when the bailer had demanded receipt thereof, the original writ petitioner had refused to give any such receipt. 12. Against the said show cause notice, the original petitioner had submitted his written statement dated 27.07.2005 by stating that the allegation made against him was false and that he had not received any bail amount from the bailer Govinda Gaik in Case No. 60 Misc/1991. 13. In course of the disciplinary proceeding, Sri Holiram Basumatary, Additional CJM, Tinsukia was appointed as an enquiry officer and Sri Jitumoni Barman, Civil Judge (Junior Division)-cum-Judicial Magistrate, 1st Class, Tinsukia was nominated as the Presenting Officer. Upon conclusion of the enquiry, the original petitioner, Babulal Das was served with a copy of the enquiry report dated 22.12.2005 vide letter dated 28.12.2005 of the learned CJM, Tinsukia. 14. On a perusal of the enquiry report, it is noticed that the enquiring authority had arrived at a conclusion that the 2 of the listed witnesses, namely, Govinda Gaik and Susanta Kar were examined as PW Nos. 1 and 2, respectively and their statements made in the earlier enquiry proceeding were exhibited as exhibit Nos. 1 and 2. The Enquiring Officer had arrived at a conclusion that the PW-2, Susanta Kar had deposed that the amount of Rs. 1 and 2, respectively and their statements made in the earlier enquiry proceeding were exhibited as exhibit Nos. 1 and 2. The Enquiring Officer had arrived at a conclusion that the PW-2, Susanta Kar had deposed that the amount of Rs. 1000/- was paid to the original writ petitioner and that the original petitioner was given the liberty to examine himself on the charges leveled against him and also on the evidence that had been recorded against him. The original petitioner was also asked to comment on the evidence that Govinda Gaik had given Rs. 1000/- to him in presence of Susanta Kar and, accordingly, Susanta Kar had given the said amount to the original petitioner. 15. In the enquiry, a conclusion was arrived that the original petitioner had denied taking any such amount from Govinda Gaik but Govinda Gaik and Susanta Kar had deposed that they had paid an amount of Rs. 1000/- and had also insisted upon a receipt from the original petitioner. In the enquiry report, it was also recorded that the PW-1 Govinda Gaik had stated that he stood as a bailer for the accused Samir Kar but he had forgotten the bail amount and that his statement in the earlier enquiry is contained in exhibit-1. Accordingly, the enquiring authority also referred to the earlier statement of Govinda Gaik which had been exhibited as exhibit-1, wherein it was deposed that he had stood as a bailer for Samir Kar in one case and had given an amount of Rs. 1000/- as the bail amount for one Susanta Kar and in turn, the said Susanta Kar had handed over the amount to the Bench Clerk, being the original petitioner. The Enquiring Officer also records that the said Susanta Kar as PW-2 had also deposed that Samir Kar was his younger brother and that Govinda Gaik had stood as a bailer in the case for his brother. It was also recorded that PW-2 had stated that he came to the Court with Govinda Gaik and that he had paid 10 numbers of Rs. 100/- note to the Bench Clerk, Babulal Das by taking the amount from Govinda Gaik. On the basis of the aforesaid enquiry report, the learned CJM being the disciplinary authority by his order dated 16.01.2006 had dismissed the original petitioner from service with immediate effect. 16. 100/- note to the Bench Clerk, Babulal Das by taking the amount from Govinda Gaik. On the basis of the aforesaid enquiry report, the learned CJM being the disciplinary authority by his order dated 16.01.2006 had dismissed the original petitioner from service with immediate effect. 16. The disciplinary authority in its order of 16.01.2006 had accepted the findings of the enquiry officer and also recorded that the enquiry report indicated that the charges of receiving Rs. 1000/- from the bailer Govinda Gaik, had been proved. 17. By the earlier judgment and order of this Court dated 8.5.2014, the order of dismissal against the petitioner dated 16.1.2006 was interfered with by concluding as follows: "9. With regard to the said observations, it is submitted that the operative portion, the reference to the fourth charge should be understood as charge No. 1 of the second show cause notice. The argument of the counsel for the respondents appears to be untenable because there are totally 9 (nine) charges levelled against the petitioner 2 (two) show cause notices. The Court for convenience, clubbed all the charges and with reference to the findings given by the inquiry authority, has made those observations. Those observations have no bearing upon the observations made in respect of discussions relating to the misappropriation as extracted (supra) and also has no relevance to the final operative direction where liberty is given to proceed only in respect of the fourth charge." 18. Against the said judgment and order of 08.05.2014, the respondent authorities had preferred a writ appeal before the Division Bench of this Court being WA No. 06/2015. The said writ appeal was disposed of by the judgment and order dated 15.05.2017, wherein the Hon'ble Division Bench had accepted the submission of the learned Senior counsel for the respondent/petitioner that the findings of the learned Single Judge with regard to the fourth charge that it did not pertain to charge No. 1 of the second show cause notice is an incorrect view. The Hon'ble Division Bench also recorded the submission of the learned Senior counsel that the allegations with regard to misappropriation of Rs. 1000/- was a matter which be left open to be proceeded by the competent authority, if so advised. 19. The Hon'ble Division Bench also recorded the submission of the learned Senior counsel that the allegations with regard to misappropriation of Rs. 1000/- was a matter which be left open to be proceeded by the competent authority, if so advised. 19. Accordingly, by its judgment and order dated 18.05.2017, the Hon'ble Division Bench while setting aside the judgment and order dated 18.05.2014 of the learned Single Judge had remanded the writ petition WP(C) No. 1836/2006 for being heard afresh. 20. Mr. M.K. Sarma, learned counsel for the legal heirs/representatives of the original writ petitioner, who are presently pursuing with the matter have raised two contentions against the order of dismissal of 16.01.2006. The first contention is that the PW-1 Govinda Gaik had not stated that he had paid an amount of Rs. 1000/- to the original writ petition Babulal Das. The second contention is that there is no allegation in the charges against the original petitioner that he had demanded any money from the bailers, and, therefore, it cannot be called to be a case of illegal gratification. 21. Mr. S.K. Medhi, learned Senior counsel appearing for the respondent authorities on the other hand contends that the deposition of PW-1, Govinda Gaik as well as that of PW-2, Susanta Kar clearly establishes that an amount of Rs. 1000/- was given by the two bailers and handed over to the original writ petitioner, Babulal Das, who was the Bench Assistant in the concerned court and that the said Babulal Das had not given any receipt against receiving the said amount and, therefore, it amounted to receiving an illegal gratification. 22. In view of the aforesaid contentions raised by the learned counsel for the parties, the issue to be decided is as to whether the deposition of PW-1, Govinda Gaik and PW-2, Susanta Kar indicates that an amount of Rs. 1000/- was paid by them to the original writ petitioner, Babulal Das, who was the Bench Assistant of the concerned court at that relevant point of time and as to whether the said Babulal Das has given any receipt upon receiving such amount, in the absence of which, it is to be construed that he had unauthorisedly benefited himself of the said amount 23. In order to arrive at an appropriate conclusion, this Court peruses the deposition of PW-1, Govinda Gaik made in the subsequent proceeding pursuant to the show cause notice dated 10.06.2005. In his deposition dated 19.09.2005, the said Govinda Gaik had stated that he stood as a bailer for Samir Kar in one of the cases related to him. He stated that he cannot remember how much amount was given by him and that he had also earlier deposed before the Court in the same manner as he was doing on that given date. It was further deposed that the exhibit-1 was his earlier deposition which is marked as exhibit-1. The earlier deposition of Govinda Gaik is dated 12.09.1994. In the said deposition, Govinda Gaik had stated that Sushanta Kar came to the Court along with him and that he had given Rs. 1000/- being the surety amount in the hand of Susanta Kar on that very day and Susanta Kar gave that sum of money to the Bench Assistant of the Court in his presence. It was also stated that on that date, the Bench Assistant did not give any receipt to Govinda Gaik for the money he had paid by saying that he would give a receipt after 2/3 days. It was stated that even after the period of 2/3 days, the original petitioner did not give the receipt to Govinda Gaik or to Susanta Kar, who had also accompanied him. 24. PW-2, Susanta Kar in his statement dated 19.09.2005, had stated that a notice had gone to the bailer as his brother had not appeared before the Court pursuant to some criminal proceeding. He stated that he knew Babulal Das, who was the Bench Assistant in the Court. It was stated that the Magistrate had stated that a fine of Rs. 1000/- had been imposed. The said Susanta Kar had given ten Rs. 100/- Rupee notes to Babulal Das, but he did not give any receipt against such payment inspite of repeated approach. 25. It is noticed that the PW-1, Govinda Gaik had in his statement dated 19.09.2005, had stated that he does not remember as to what amount he had paid, but at the same time, he exhibits his earlier deposition dated 12.09.1994 as the exhibit-1, wherein it was clearly stated that he had given an amount of Rs. 25. It is noticed that the PW-1, Govinda Gaik had in his statement dated 19.09.2005, had stated that he does not remember as to what amount he had paid, but at the same time, he exhibits his earlier deposition dated 12.09.1994 as the exhibit-1, wherein it was clearly stated that he had given an amount of Rs. 1000/- to the original writ petitioner, Babulal Das and no receipt was given to him against such payment. 26. When an earlier statement on deposition is exhibited in a subsequent deposition, it is to be construed that the contents of both the depositions are to be read as one deposition and by reading them conjointly, it is to be construed that Govinda Gaik in his deposition dated 19.09.2005 had also stated that he had given an amount of Rs. 1000/- to the original petitioner Babulal Das and Babulal Das had not given any receipt against receiving such payment of Rs. 1000/-. 27. Further the said deposition of PW-1 Govinda Gaik is corroborated by the other eye witness being PW-2, Susanta Kar, who was also present along with Govinda Gaik, when the amount of Rs. 1000/- was given to the original petitioner, Babulal Das and further that Babulal Das had not given any receipt against receiving such payment. 28. In view of the aforesaid evidence of the PW-1, Govinda Gaik and PW-2 Susanta Kar, it is clearly established that the amount of Rs. 1000/- was given to Babulal Das and he had not given any receipt against the same, and, as such, the contention of the learned counsel for the petitioner that the deposition of Govinda Gaik and Susanta Kar does not indicate that an amount of Rs. 1000/- was given to the original writ petitioner, Babulal Das is, therefore, found to be unacceptable. 29. Another contention raised is that as the original writ petitioner Babulal Das had not made any demand for the payment of Rs. 1000/-, therefore, it cannot be construed to be a case of receiving illegal gratification. 30. To examine the aforesaid contention as to whether by not demanding the aforesaid amount of Rs. 29. Another contention raised is that as the original writ petitioner Babulal Das had not made any demand for the payment of Rs. 1000/-, therefore, it cannot be construed to be a case of receiving illegal gratification. 30. To examine the aforesaid contention as to whether by not demanding the aforesaid amount of Rs. 1000/-, the act of the original writ petitioner amounts to receiving illegal gratification or not, this Court is of the view that the said contention is based on the interpretation of the expression illegal gratification as contemplated under Section 7 of the Prevention of Corruption Act, 1998, which is as under:- "Section 7 of the Prevention of Corruption Act, 1998 : Public servant taking gratification other than legal remuneration in respect of an official act.-Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or for bearing to show, in the exercise of his official functions, favour or disfavor to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine." 31. In B. Jayaraj Vs. State of Andhra Pradesh reported in (2014) 13 SCC 55 in paragraphs 5 and 6, it has been held that demand of illegal gratification is sine qua non to constitute an offence under Section 7 of the Prevention of Corruption Act, 1998 and, therefore, in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. 32. 32. But the said contention based on the aforesaid law enumerated by the Hon'ble Supreme Court would not be applicable in the facts and circumstances of the present case. As noticed, the charges against the petitioner was that he had received illegal gratification of Rs. 1000/- ostensibly towards the forfeited bail amount of Rs. 1000/- in a criminal proceeding and that the bailer demanded receipt thereof, the petitioner had refused to give any such receipt. The expression illegal gratification appearing in the said charge is not a charge of receiving illegal gratification, simpliciter. The dominant purpose of the charge is that although the petitioner had received the forfeited bail amount of Rs. 1000/- but he had used the same for his own personal gain without issuing any receipt thereof, although the bailer had so demanded. Therefore, in view of the nature of the charges leveled against the petitioner in the instant case, the concept of demand of illegal gratification to be sine qua non to constitute the offence is not applicable in the present case. In such view of the matter, the contention of the writ petitioner that he had not made any demand for payment of Rs. 1000/- and, therefore, it cannot be construed to be case of receiving illegal gratification, cannot be accepted. 33. In the aforesaid conclusion of this Court, both the contentions raised by the learned counsel for the petitioners that an amount of Rs. 1000/- was not paid to the original petitioner and that even if paid receipt of such amount did not amount to an illegal gratification is, accordingly, rejected. In view of such rejection of both the contentions, this Court is of the view that this writ petition is devoid of any merit and, accordingly, the same is dismissed.