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2018 DIGILAW 188 (CAL)

State of West Bengal v. Manoj Kumar Mondal

2018-01-29

DEBASISH KAR GUPTA, SHEKHAR B.SARAF

body2018
JUDGMENT : 1. This writ petition is directed against a final order dated November 28, 2016 directing the Appellate Authority, namely, Commandant, State Armed Police, 8th Battalion of Barrackpore to reinstate the respondent with a further direction that he would not be entitled for the back wages for the period he had not worked in the police service. 2. The order impugned before the learned Tribunal was an order passed by the appellant No. 4 rejecting the representation of the respondent for his reinstatement in police force after his acquittal from two criminal cases. 3. It is necessary to point out that in the above order, the ground for rejection of the representation was suppression of fact of his involvement in a criminal case while filling up the application form for consideration of his candidature. 4. This matter has a chequered history, which is as follows: (a) The respondent/applicant submitted his application dated December 26, 2006 before the respondent authority for consideration of his candidature for appointment in the post of Constable under the State Armed Police. In column No. 13 of the above application form relating to the disclosure of the fact of arrest/detention/conviction was mentioned as "Nil". (b) The respondent/applicant was selected in the above selection process and he was allowed to participate in the basic training with effect from January 22, 2007. Subsequently, by an order dated April 18, 2007 passed by the petitioner No. 3, he was discharged from the service. The operative part of the above order is set out below: "Since RC/937 Manoj Kumar Mondal was involved in criminal cases he stands unsuitable for the post of Constable under training and is discharged from WB Police Service as per Govt. of WB (Home Department) Police Notification No. 225-PL/P1/8C-11/87-Pt-IV dt. 07.01.1992 subject to approval of the Addl. Director General of Police (Trg) WB sought for under this office memo No. 824/RO dt. 13.04.07. As approved by the Addl. Director General of Police (Trg), WB under his Memo No. TRG/01/07-145 dt. 16.4.07 RC/937 Manoj Kumar Mondal of SAP 8th BN of batch No. 186/07 is hereby discharged from police service w.e.f. 16/4/2007." 5. Subsequently, the respondent/applicant was honourably acquitted from G.R. Case No. 355 of 2007 (T.R. No. 182 of 2009) by an order dated December 6, 2012 passed by the Court of the learned Additional Chief Judicial Magistrate, Lalbagh, Murshidabad. 16.4.07 RC/937 Manoj Kumar Mondal of SAP 8th BN of batch No. 186/07 is hereby discharged from police service w.e.f. 16/4/2007." 5. Subsequently, the respondent/applicant was honourably acquitted from G.R. Case No. 355 of 2007 (T.R. No. 182 of 2009) by an order dated December 6, 2012 passed by the Court of the learned Additional Chief Judicial Magistrate, Lalbagh, Murshidabad. He was also honourably acquitted from another criminal case bearing G.R. Case No. 511 of 2006 (T.R. Case No. 32 of 2007) by an order dated October 6, 2007 passed by the Court of the learned Judicial Magistrate, 1st Class, Lalbagh, Murshidabad. Thereafter, the respondent/applicant filed an application before the West Bengal Administrative Tribunal challenging the aforesaid order of his discharge dated April 18, 2007. 6. The above original application was disposed of by an order dated January 17, 2014 and the operative portion of the above order is set out below: "We have ascertained from Mr. Samanta that his client didn't make any formal petition before the appointing authority for reconsideration of his case after judgment of criminal court and in such a situation, we like to dispose of this application by granting liberty to the petitioner to make a formal application for reinstatement along with copy of judgment of both the criminal cases within four weeks from communication of this order and if such application is filed, the appointing authority shall consider the same after giving personal hearing to the petitioner and having regard to the position of existing law within a period of 8 weeks without fail with intimation to the petitioner. The application is, accordingly, disposed of." 7. In compliance of the above order, the respondent/applicant submitted a representation before the Authority and by an order dated April 2, 2014 passed by the respondent No. 4, the above representation was rejected. 8. The respondent/applicant filed an original application before the learned West Bengal Administrative Tribunal, which was disposed of by a final order dated November 28, 2016 and the operative portion of the above order is set out below: "The question may arise that discharge of a training constable was a different circumstances and reinstatement of a discharge constable is another aspect. We, obviously, have taken that point although not raised by any of the parties, for our consideration. We, obviously, have taken that point although not raised by any of the parties, for our consideration. It is true that a discharge order can be issued against a training constable if he is found unsuitable in the police service. We accept this position. But, we do not understand why the prayer of such a constable for reinstatement in his service is refused on another ground after his honourable acquittal from the criminal case for which he was discharged. When such a training constable is acquitted from the criminal cases wherein he was involved and for which he was discharged from service, all the charges against him vanishes automatically after his acquittal. The government order dated 7.1.92 does not give the authority concerned an unfettered power not to reinstate the police constable when the allegations against him found not proved at all by Competent Court of Law. He might have been found unsuitable at the time on the date he was discharged from service, but, there is no unsuitability on his part to remain in the police service after his acquittal from the charges. In view of the discussion above, we are of the opinion that the reasoned orders dated 2.4.14 which have been challenged by the applicants in this applications are not at all tenable. Accordingly, both the reasoned orders dated 2.4.14 under challenge are set aside. We direct the Commandant, SAP, 8th Battalion of Barrackpore to reinstate the applicants in their services. However, the applicants are not entitled to back wages for the period they have not worked in the police service. Accordingly, the applications succeed. They are disposed of finally without cost." 9. The subject matter of challenge in this writ petition is the aforesaid order passed by the learned Tribunal. 10. It is submitted by Mr. Tulshidas Roy, learned Advocate appearing for the writ petitioners that the order impugned to this writ petition cannot be sustained in law in view of admitted fact of erroneous finding of the learned Tribunal. According to him, the respondent suppressed in his application the fact of his arrest and pendency of a criminal case at the time of submitting his application. It is also submitted by Mr. Roy that while disposing of the representation of the respondent, the learned Tribunal directed the Authority to consider his prayer afresh. According to him, the respondent suppressed in his application the fact of his arrest and pendency of a criminal case at the time of submitting his application. It is also submitted by Mr. Roy that while disposing of the representation of the respondent, the learned Tribunal directed the Authority to consider his prayer afresh. In such circumstances, it was open for the Authority to take a new ground for rejecting the representation of the respondent. According to Mr. Roy suppression of fact in his application which has a bearing in the service of the respondent in a disciplinary force was good enough for his discharge in accordance with paragraph 10 of the Notification dated January 7, 1992. It is finally submitted by Mr. Roy that suppression of such fact in an application for participating in selection process for selection as a member of a disciplinary force is adequate ground for discharging him. 11. Reliance is placed by Mr. Roy in the decisions of Kendriya Vidyalaya Sangathan and others - v. - Ram Ratan Yadav reported in (2003) 3 SCC 437 and R. Radhakrishnan Versus Director General of Police and others reported in (2008) 1 SCC 660 in support of his above submissions. 12. In reply, it is submitted by Mr. Surajit Samanta that the respondent was released on bail on the date of his arrest i.e. on May 24, 2006 in connection with G.R. Case No. 511 of 2006. Therefore, non-disclosure of such a fact does not amount to suppression of the relevant fact. It is further submitted by him that the ground for discharging the respondent was his involvement in two criminal cases and not the suppression of the fact in the application. According to him, after his acquittal from the aforesaid two cases, the learned Tribunal directed the Authority to consider his prayer for reinstatement taking into consideration the results of these criminal proceedings. Therefore, it was no longer open for the Authority to take a new ground for rejecting his representation. 13. We have heard the learned Advocate appearing for the respective parties and we have considered the facts and circumstances of this case carefully. 14. Therefore, it was no longer open for the Authority to take a new ground for rejecting his representation. 13. We have heard the learned Advocate appearing for the respective parties and we have considered the facts and circumstances of this case carefully. 14. It is not in dispute that in the order dated April 4, 2007 the ground for discharging the respondent/applicant was his involvement in two criminal cases and not the suppression of any fact in column No. 13 of his application relating to his involvement in criminal cases and his arrest in connection with one out of the aforesaid cases. It is also not in dispute that the respondent/applicant was not found guilty in respect of any of the aforesaid criminal cases. Admittedly, the order dated January 17, 2014 passed by the learned Tribunal in the original application bearing O.A. No. 861 of 2013 gave a direction upon the Authority to revisit the situation after acquittal of the respondent/applicant from both the criminal cases. It is also not in dispute that the ground was taken by the respondent authority while considering the representation of the respondent/applicant in compliance of the above order for rejecting his representation. 15. On perusal of the order impugned to this writ petition, we find that one of the findings of the learned Tribunal was erroneous. On the date of submission of the application, a criminal case was pending before the respondent/applicant. But taking into consideration the admitted fact that the representation was submitted after his acquittal from the aforesaid cases, we find that the Authority was directed to revisit the situation after such acquittal of the respondent/applicant and not to reopen that closed chapter of suppression of the above fact which was not even the ground for discharging the respondent/applicant. 16. The above discussion leads us to the next finding of the learned Tribunal that there was a sharp difference between the reasons stated in the discharge letter and the reasons stated in the subsequent reasoned order. It is true that once the respondent/applicant was discharged on one ground and the representation was submitted after evaporation of that ground, it was not open for the Authority to take another ground afresh desperately reopening a closed chapter for sustaining its earlier order. Therefore, we do not find any error in the findings of the learned Tribunal in this regard. 17. Therefore, we do not find any error in the findings of the learned Tribunal in this regard. 17. It will not be out of context to observe that assuming that the respondent did not disclose the fact of his arrest and pendency of a criminal case at the time of submitting his application but in the peculiar facts and circumstances, when he has been acquitted from both the cases and the learned Tribunal directed the Authority to consider his representation for reinstatement giving a fresh look to the changed scenario, consequent upon his acquittal, rejection of his representation shocks our conscience in view of the settled principles of law after examining the conduct of the Authority from the stand point of Wednesbury principles and doctrine of proportionality. 18. The above principle has been discussed by us in details in a judgment dated December 19, 2017 passed in the matter of The State of West Bengal & Ors. v. Siddhartha Sankar Mukhopadhyay (In re: W.P.S.T. No. 114 of 2017) and Siddhartha Sankar Mukhopadhyay - v. - The State of West Bengal & Ors. (In re: W.P.S.T. No. 123 of 2017) and the relevant portion of the above decision is set out below: "With regard to issue of the scope of interference of the Court/Tribunal with the quantum of punishment which is decided by the Disciplinary Authority in connection with a proceeding, the basic principle applicable under the administrative law in this regard is required to be examined from the stand point of Wednesbury principles and doctrine of proportionality. Lord Greene in this celebrated judgment of Associated Provincial Picture Houses, Ltd. - v. - Wednesbury Corporation, reported in (1947) 2 ALL ER 680 laid down the principles and the relevant portion of the above decision is quoted below: "........ I do not wish to repeat what I have said, but it might be useful to summarise once again the principle, which seems to me to be that the court is entitled to investigate the action of the local authority with a view to seeing whether it has taken into account matters which it ought not to take into account, or, conversely, has refused to take into account or neglected to take into account matters which it ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that the local authority, nevertheless, have come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not that of an appellate authority to override a decision of the local authority, but is that of a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in it....." (Emphasis supplied) According to the above principles, when answer to a question whether the local authority took into account the matters which ought not to take into account, or, conversely, has refused to take into account or neglected to take into account matters which it ought to take into account the answer is in favour of the authority, it might still be possible to say that local authority came to a conclusion so unreasonable that no reasonable authority could ever come to it. This is recognized as the "Wednesbury principles". 19. Necessary to point out that though in the aforesaid cases, the applicability of the doctrine of proportionality from the stand point of Wednesbury principle was discussed in connection with a disciplinary proceeding, the same principle is applicable in view of the facts and circumstances of this case with all its rigours. 20. The decisions of Kendriya Vidyalaya Sangathan and others (supra) and R. Radhakrishnan (supra) have no manner of application in this case in view of the distinguishable facts and circumstances of this case. 21. The peculiar facts and circumstances of this case is discharging of the respondent on one ground and supporting the same decision by a subsequent order taking a completely different ground. 22. In view of the discussions and observations made hereinabove, this writ petition fails and the same stands dismissed. 23. There will be, however, no order as to costs. 24. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible on compliance of all necessary formalities.