Calcutta High Court (Appellete Side)
Sn Raham Ali Khan vs The State Of West on 27 November, 2017
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1
4 27.11.17 W.P.S.T. 57 of 2017
sn RAHAM ALI KHAN VS. THE STATE OF WEST
BENGAL & ORS.
Mr. D.N. Roy
Mr. M.N. Roy
Mr. Biswarup Nandy
Mr. Rajesh Kr. Shaw
..for the petitioner
Mr. Joytosh Mazumder..ld.G.P.
Mr. Pinaki Dhole
Mr. Debasish Sarkar
..for the State
Since none appears on behalf of the
State respondents in spite of service of
copies of the writ applications upon them Mr. Joytosh Mazumder, learned Government Pleader, High Court, Calcutta is engaged in this matter to appear on behalf of the State respondents with a junior of his choice.
This writ application is directed against a final order dated February 16, 2017 passed by the West Bengal Administrative Tribunal in O.A. 146 of 2014. By virtue of the impugned order, the original application of the petitioner was rejected.
Having heard the learned Counsel appearing for the respective parties as also after considering the fact and circumstances 2 of this case, we find that the petitioner was placed under suspension in connection with his services as "Warder" of Dumdum Central Correctional Home, with effect from November 7, 2008 on the ground of pendency of a criminal proceeding bearing no. T.R.1/09 (In re: State of West Bengal Vs. Reham Ali Khan ) before the learned Judge, Special Court,at Purba Medinipore, Tamluk under Section 8/9 of the Prevention of Corruption Act, 1988. The above criminal proceeding came to an end by virtue of a judgement dated April 26, 2013 and the ordering portion of the above trial is quoted below :-
Ordered "that the accused Rehem Ali Khan is found not guilty to the charge under Section 8/9 of the Prevention of Corruption Act, 1988 and he is acquitted U/s.248(1) of the Cr.P.C.
the accused be discharged from his bail bond, if any, and set at liberty forthwith.
The seized currency notes be confiscated to the State after expiry of the period of appeal.
The Registers produced by the Jail Authority be returned after expiry of the period of appeal."
Thereafter, the petitioner submitted 3 a representation before his disciplinary authority for withdrawal of the order of suspension.
Considering the above representation the disciplinary authority passed an order dated January 16, 2014 confirming the order of suspension for the period from November 7, 2008 to February 13, 2012 and treating the withdrawal of such suspension with effect from February 24, 2012 considering his hardship.
The petitioner filed the original application challenging the aforesaid order on the ground that though he was not found guilty of the charges framed against the petitioner in connection with the criminal trial under reference, he had to suffer order of suspension pendente lite from the period November 7, 2008 to February 23, 2012. The learned Tribunal dismissed the above original application of the petitioner with the observation that in absence of any representation before the respondent 4 authority against the above order, the original application was not maintainable.
The order impugned before the learned Tribunal was an order of confirming of the period of suspension of the petitioner for more than three years. The ground for passing such order of suspension was pendency of a criminal proceeding against him.
At the cost of repetition, let it be observed that the petitioner was found not guilty of the charge framed against him in connection with the above criminal trial. Therefore, we do not find substance on the submissions made by Mr. Joytosh Mazumder before us that the provisions under Section 21 of the Administrative Tribunal Act, 1985, to submit a representation was a condition precedent to challenge the order impugned before it. The above provisions relates to availing of an opportunity to prefer an appeal against the above order in connection with the service rules concerned.
Section 20 of the Administrative 5 Tribunal Act, 1985 cannot create a complete bar for the delinquent employee to avail of the opportunity of judicial review before a Tribunal created under Article 323A or 323B of the Constitution of India, in a case where violation of any fundamental right or any legal right is under challenge. Needless to point out, the above application was filed before the learned Tribunal claming violation of settled principles of law as discussed hereinabove. Therefore, the impugned order is liable to be set aside.
At this juncture, it will not be out of context to observe that according to the petitioner, L. Chandrakumar Vs. Union of India & Ors. reported in (1997)3 SCC 261, the learned Tribunal should act as a Court of first instance. Since the above matter has not been adjudicated by the learned Tribunal on its merit we cannot take up this issue on its merit at this stage.
In view of the above observations and discussions, the impugned order stands 6 quashed and set aside.
The matter is remanded back to the learned Tribunal for adjudication of the original application on its merit expeditiously and preferably within four months from the date of communication of this order.
This writ application is thus disposed of.
There will be, however, no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Debasish Kar Gupta, J.) (Shekhar B. Saraf, J.) 7 8