Calcutta High Court
State Of West Bengal & Ors. vs Tapan Kumar Saha on 30 July, 1999
Equivalent citations: (2000)1CALLT34(HC)
Author: Ruma Pal
Bench: Ruma Pal
JUDGMENT
1. The Court : This application under Article 227 has been filed by the State Authorities against an order passed by the State Administrative Tribunal on 5th January 1998 setting aside the order of dismissal against the respondent.
2. The respondent Joined the Calcutta Police as Sergeant on 1st April of 1975. It is on record that the respondent has been awarded about 64 awards for meritorious service. The otherwise unblemished record of service of the respondent suffered a set back after the respondent Joined as Sergeant in the Police Station in Bellaghata on 22nd April 1993.
3. The first contretemps was faced by the respondent when he sought to execute an order passed by the High Court on 31st March 1994 relating to the construction of a wall of one Dr. Chowdhury. The respondent was strongly resisted by some local people. The resistance was overcome and the order of the court was carried out. The local people however complained to the Minister-in-Charge, Government of West Bengal, who referred the matter to the Commissioner of Police. Consequent to this the petitioner was sought to be transferred to the Reserve Force from Bellaghata P.S. with Immediate effect. The transfer order was challenged by the Respondent under Article 226. The writ application (referred to as the first writ petition) was disposed of on 16th June 1994 by Altamas Kablr-J who set aside the order of transfer holding that the respondent was being penalised for doing his duty conscientiously and that the transfer of the respondent had "politically overtones'.
4. The second incident started within a few weeks of the first writ petition being disposed of. This time one Mrltyunjoy Das and S.N. Mallick received two notice under section 401 of the Calcutta Municipal Corporation Act, 1980 requiring them to stop the construction work which they were carrying on at Premises No. 166-P, Bellaghata Main Road. A copy of the notice was endorsed in the respondent by the Officer-in-Charge, Beliaghata Police Station. Under section 401 of the 1980 Act, if an order is made by the Municipal Commissioner to stop construction work and if such an order is not compiled with, the Municipal Commissioner may require any police officer to remove such person, his assistants and workmen from the premises and the police Officer then is bound to comply with such requirement.
5. The next day the respondent had visited the premises where the two constructions were being carried on. He did not find either Mrityunjoy Das or S.N. Mallick. He returned back to the Police Station and made a General Diary Entry No. 2601 and 2602 on 30th July 1994 recording that. The respondent did not attend the office next day. This, according to the respondent, would also be reflected from the General Diary Book for 31st July 1994.
6. On 1st August 1994, Mrityunjoy Das and Babun Mallick. the nephew of S.N. Mallick along with a political leader of the locality came to the police station and wanted to know why the respondent had visited the premises. 166-P Beliaghata Main Road. The respondent states that he was threatened both by Mrityunjoy Das, Baban Mallick as well as the political leader with dire consequence. This was recorded by the respondent in GDE No. 43 and in GDE No. 45 and 49 all dated 1st August 1994.
7. According to the evidence of Mrityunjoy Das on 31.7.94 a Habildar came to him and Baban asking them to see the respondent. Consequently on 1.8.94 they went to see the Respondent but he refused to accede to their request not to demolish the constructions. When they come out:
"The Havildar" enquired of us as to why we were leaving. We told the "Havlldar" that Sgt. Saha did not pay mind to our request and we have to depend on our fate. The "Havlldar" then suggested that if we could spend some money ..... I enquired about the required amount.
The "Havildar" then told us to wait so that he could discuss the matter with sgt. T.K. Saha. After some time the "Havildar" returned to us though the amount could have been much more but Sgt. T.K. Saha said that if we could pay Rs. 5000 each then our houses will be saved from demolition. I requested the "Havlldar" that we wanted to see Sgt. T.K. Saha again and the "Havlldar" that we wanted to see Sgt. ... enquired of Sgt. T.K. Saha that if we paid the money whether our house will be save or not and Sgt. T.K- Saha assured me that if we pay the money then we could continue the construction in the manner suggested by Sgt. T.K. Saha. Getting the assurance we requested Sgt. T.K. Saha that we were not in a position to pay Rs. 5000/- each and the demand should be brought down. At last Sgt. T.K. Saha told us to pay Rs. 6000/- --Rs. 3000/- each the next day i.e. on 2.8.94 by 2 p.m. He also totd us that if he was not available we should pay the money to the "Havlldar".
8. On 2nd August 1994 a complaint in writing was lodged by Mrityunjoy Das and Baban Mullick with the DC(EB) that the respondent had asked for a bribe not to present them from completing the constructions at premises 166 P Beliaghata Main Road. The letter contained details of the notes in which the bribe was being paid. Immediately the DCEB directed the A.C.(EB) to enquire and report. There officers of the EB accompanied Baban Mallick and Mrityunjoy Das to the Beliaghata P.S. According to Mrityunjoy Das:
"As we reached the gate of the Police Station found the "Havlldar" and he eagerly said that he and sgt. Saha were anxiously waiting for us."
9. The respondent says that when he was in his office at about three in the afternoon, he went out of his room to attend a telephone call in the room of O.C. Bellaghata P.S. When he returned he found both Mrityunjoy Das and Babun Mallick in his office sitting opposite the respondent's chair. They requested the respondent to allow them to complete the construction. This was refused by the respondent and both Mrityunjoy and Baban Mallfck left. The respondent stated that he also left the room. When he returned he found Mrityunjoy and Babun along with some officers from the Enforcement Branch (EB). They asked the respondent to return two envelopes containing money which Mrityunjoy and Baban claimed to have given to the respondent. According to the respondent a search was made but nothing was found and that subsequently Mrityunjoy Das kept an envelop in the open space between the table top and the drawers of the respondent table. The envelope was seized by the E.B. Officers. No seizure list was prepared nor was the respondent asked to sign on the envelope. The respondent was immediately removed from the Bellaghata P.S. and taken to the office of the Deputy Commissioner of Police (Eastern Suburban Division) and an order of suspension was passed on 2nd August 1994 was handed over to him. It was stated in the order of suspension the respondent was being suspended because of "gross misconduct, unbecoming a member of police force". The nature of the conduct was however not specified.
10. The next day several local newspapers contained accounts of how the respondent was allegedly caught taking a bribe and had been suspended. The respondent moved a second writ petition challenging the validity of the order of suspension. The second writ petition was disposed of on 22nd August 1994 when the Advocate appearing on behalf of the Slate respondents stated that they wanted to withdraw the order of suspension. Such liberty was granted by the court and the writ application was disposed of accordingly. The order of suspension was then withdrawn.
11. On 1st September 1994 the respondent was served with the copy of a charge-sheet and a statement of allegations. The Assistant Commissioner of Police (I) (Eastern Suburban Division) was appointed as Enquiry Officer. The charge-sheet reads as follows :
"On 2.8.94 at any time between 15.00 hrs. and 15.15 hrs. It is alleged, you had accepted two packets containing Rs. 2000 (rupees two thousand) in each packet from Shri Mrityunjoy Das and Shri Babun Malllck both of 166. Bellaghata Main Road, Calcutta 700 085. for not demolishing the house of the persons mentioned above, which have been constructed In violation of the Calcutta Municipal Corporation Rules. Your alleged acceptance of the bribe in the form of financial gratification has established prima facie that you have demanded money from the above mentioned persons for showing aforesaid favour to them."
12. The statement of allegation contained details of the charge. It was said that the two packets containing Rs. 2000 each had been recovered from the top of the right side drawers beneath the top of the table of Sergeant Saha. It was further alleged that the G.C. Notes recovered tallied with the numbers shown in the letter of complaint singed by Mrityunjoy and Babun addressed to the Deputy Commissioner, Enforcement Branch. Five witnesses were mentioned on behalf of the prosecution namely. M.B., S.I; N.B. Panda; Subhas Das, A.C; N.C. Bhattacharya. O.C., all of the Enforcement Branch. The list documents on which reliance would be placed included the two packets Including the rupee notes (the number and denominations of which had been given). G.D. entry No. 145 dated 2.8.94; the letter of complaint dated 2.8.94 of Mrityunjoy Das and Baban Mallick and the report of Shri S. Das, A.C. EB to D.C. EB.
13. The respondent pleaded not guilty and requested for an open enquiry. He also requested for copies of all statements of the witnesses proposed to be examined as well as copies of documents exhibited by the prosecution, the letters dated 6th September 1994. On 10th September 1994 the respondent was again placed under suspension on the ground that the departmental proceedings were pending against him. The respondent filed a third writ application. No order was however passed In his favour but by an order dated 14.9.94 the authorities were directed to conclude the departmental proceedings as expeditlously as possible in accordance with the rules.
14. On 15.10.94 the personal of the enquiry officer was changed and one A.K. Dey was appointed. The respondent wrote several letters on 28th October 1994 and 4th November 1994 repeating his request for copies of the witnesses and documents proposed to be exhibited. He also prayed that he should be permitted to be allowed to defend himself by a lawyer. It was recorded In the letters that no documents had been given to him till the date of the letters.
15. The respondent was thereafter given only three documents namely. GDE 143 dated 2.8.94 In which the complaint against him was lodged in the Bellaghata Police Station by the Enforcement Officers, a copy of the letter of complaint of Mrltyunjoy an Baban dated 2nd August 1994 and the copy of the report of S. Das also dated 2.8.94. The prayer of the respondent for statements of the prosecution witnesses recorded during the preliminary enquiry as well as the prayer for engaging a lawyer was rejected by letter dated 8th November, 1994 by the Enquiry Officer. The respondent again made representations In writing on 9.11.94 and 21.11.94 for copies of the depositions of the prosecution of witnesses. The letters were not replied to nor were the documents supplied.
16. Shri A.K. Dey retired on 31.12.94. On 7th March 1995 Arun Bagchl A.C. was appointed as Enquiry Officer. On 15th March 1995 the respondent moved a fourth writ application which was disposed of by directing the respondents to complete the proceedings and pass a final order within one month failing which the order of suspension would be treated as withdrawn.
17. Hearing was held on 4th April 1995 by the Enquiry Officer. According to the respondent the examination of the prosecution witnesses being over without affording any opportunity to the respondent to examine any witnesses or prove any document, the Enquiry Officer directed the respondent to submit his written statement of defence within three days i.e. by 7th April 1995. On the same date I.e. 4th April 1995 the respondent submitted a formal application praying for an opportunity to examine the Officer-in-Charge of Bellaghata P.S. and for production of G.D. Entries 2601 and 2602 dated 30.7.94 G.D. Entry No. 43, 45 and 49 dated 1.8.94. G.D.E. No. 137, 153, 143 dated 2.8.94 and G.D.R. dated 31.7.94 on the ground that these were required for the respondent's defence. There was no response to this letter. As the time fixed to the the written statement of defence would have expired, the respondent submitted his written statement of defence under protest on 7th April 1995. The disciplinary proceeding was not concluded by 15th April 1995 In terms of the order dated 15th March 1995 of the High Court Consequently the suspension order stood cancelled and the respondent joined the service on 15th April 1995, On 17th April 1995 a copy of the findings of the Enquiry Officer were given to the respondent. On 25th April 1995 a provisional final order was served on the respondent to show cause why the respondent should not be dismissed from service. The respondent submitted a detailed reply pointing out the fact that he had been denying a proper opportunity of defending his case because (I) he had not been given the copies of the statement of the witnesses; (II) he was not allowed to take a defence helper: (Hi) he was not given copies of all the documents relied upon by the authorities: (iv) the defence witnesses were not allowed to be examined: and (v) the documents which were under the custody of the authorities the various G.D. Entries were not produced. It was stated that the oral evidence was contradictory and that the proceedings were Initiated because of political Influence. Particulars of the contradictions were given. It was also stated that the Enquiry Officer had not given any finding nor discussed the points raised in the written statement of defence. It was further stated by the respondent that the provisional order was In violation of the statutory provisions of Chapter 19 Regulation 9(5) Clauses (a); (b) of the Police Regulations, Calcutta (PRC).
18. The Deputy Commissioner of Police (Eastern Suburban Division) J.C. Chattopadhyay, however by an order dated 16th June 1995 rejected the submissions of the respondent and passed a final order and confirmed the provisional final order and dismissed the respondent from service with effect from the date of the order. The respondent then requested for the certified copies or true copies of the records of the proceedings for the purpose of enabling him to prefer an appeal in accordance with Chapter 19 regulations 10 and 11 of the P.R.C. They were not made available to the respondent. On 27th June 1995 the appeal was preferred without the benefit of the records. The respondent kept asking the appellants for copies of the records by letters dated 6th July 1995, 17th July 1995, 24th July, 1995 and 2nd August 1995 but no reply was given by the appellants.
19. A fifth writ application (which has ultimately given rise to this appeal) was filed by the respondent on 24th August 1995 challenging the order dated 16th June 1995. An Interim order was passed directing the appellate authority to dispose of the respondent's appeal within one month and to communicate the decision to the respondent within a week thereafter. It was also made clear that If the appellate authorities decided against the respondent, the respondent could challenge the decision In the same writ application.
20. Hearing was held by Additional Commissioner of Police the. Appellate Authority on 19th September 1995. On that day the order sheet and copies of some exhibits were given to the respondent. On 25th September 1995 the respondent was served with the copy of the Appellate Authority's decision taken on 22nd September 1995 upholding the order of dismissal. The only reason given by the Appellate Authority was :
"After careful consideration of the facts, circumstances and merit of the case and also after due application of mind as well as taking all the aspects of natural Justice in view of the Hon'bte High Court's order in the Instant matter I find no scope at all to differ from the final order passed by D.C., E.S.D. I, therefore, dismiss the appeal petition of the Sergeant Tapan Kr. Sana of E.S.D."
21. The respondent challenged the decision of the Appellate Authority in the pending writ application by filing a supplementary affidavit. Because of the Administrative Tribunals Act, 1985 the respondents writ application was transferred to the State Administrative Tribunal. Affidavits were filed. On 5lh January 1998. Bench of the Tribunal set aside the order of dismissal as well as the order of the Appellate Authority on the grounds (1) that the respondent had not been given a reasonable opportunity of defending his case: (ii) that the evidence did not support the findings of the enquiry officer and (iii) that the punishment of dismissal could not be sustained on the facts. The Tribunal accordingly directed that the respondent should be allowed to join his duties/posts immediately and be given all service benefits after resumption of duties.
22. The present appellants did not carry out the order of the Tribunal, Contempt proceedings were initiated by the respondent before the Tribunal. The State respondent then filed this appeal on 11th March 1998 and prayed for stay of the order of the Tribunal. No Interim order of stay was granted by this court but directions were given for filing paper books.
23. In the meanwhile the Tribunal found that the appellants were prima facie guilty of contempt. The appellants persisted in describing the respondent as a dismissed employee despite the order of the Tribunal setting aside the order of dismissal. The matter was taken up by the Division Bench of this court with a view to issuing a rule in contempt against the appellants but no steps were taken because an unconditional and unqualified apology was tendered by the appellant's counsel. The respondent was thereafter allowed to Join his services but was transferred again to the Reserve Force.
24. The respondent has joined his duties but has not been paid any arrear salary nor any service benefits nor other outstanding emoluments. He submitted a representation to the Commissioner of Police and the Deputy Commissioner of Police without any effect. It may be mentioned at this stage that during the pendency of the departmental proceedings, on 13th February 1995 that selections had been held for promotion of Sergeants to the rank of Inspector of Police. Although the respondent's name was on the list the respondent was not initially called. Subsequently, he was called but promotion was not given. Ultimately, after several representations, the Additional Commissioner of Police stated that the respondent could not be granted anything since "Appellate Court" had directed the appellants only to allow the respondent to join his duties but no service benefits were directed to be given.
25. Under Article 226 power has been given to this court to protect the public from abuse of power by those In authority. Very often, those In authority require protection themselves from those who may yield greater power.
26. This case is an Instance of such abuse. From the outset the procedure followed against the respondent evidences mala fides. The procedure normally followed and prescribed for searches under section 100 of the Criminal Procedure Code requires was not followed at all though the offence which the respondent was alleged to have committed Is punishable under section 161 of the Indian Penal Code. The protective measures laid down fn section 100 of the Criminal Procedure Code Include :
"(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more Independent and respectable Inhabitants of the locality in which the place to be searched is situated or of any other locality if no such Inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order In writing to them or any of them to do so.
(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall of be prepared by such officer or other person and signed by such witnesses: but no person witnessing a search under this section shall be required to attend the court as a witness of the search unless specially summoned by It.
(6) The occupant of the place searched, or some person In this behalf, shall. In every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witness, shall be delivered to such occupant or person.
(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, where called upon to do so by an order In writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code."
27. Not one of these protective measures were followed either in form or In substance. Significantly, the police officers of the Enforcement Branch did not follow what for them at least was familiar procedure at a stage when the decision not to prosecute the delinquent officer In a criminal proceeding could not be taken.
28. The haste In which the first suspension order was Issued viz. and the subsequent withdrawal supports the submission of the respondent that the action was preplanned. The same promptitude with which the suspension order was issued was not displayed in the disposal of the departmental proceeding. The "note" to sub-rule 17 of Rule 9 of Chapter XIX of the PRC requires day to day enquiry and completion of the enquiry wllbln a reasonable period. When an officer is under suspension, as the respondent No. 4 was in this case "special effort shall be made to expedite the completion of enquiry" and completed within a month and a half. Guidelines have been issued in Memo No. 3772(200)-F/F IA-8(88)/67 dated 4th November, 1967 which provide :
"The following time-schedule should be observed as closely as possible in dealing with disciplinary cases-
(a) The charge or charges should be handed over to the charged officer within seven days from the date of taking the decision to start formal proceedings. A decision should also be taken within that period whether the officer should be placed under suspension pending enquiry.
(b) The delinquent's written statement of defence shall ordinarily be required to be submitted within a fortnight and In no case should the period of more than one month be allowed.
(c) The enquiry including the oral examination of the witness should be completed wilhln a month of the submission of the written statement. In case of outstatlon witness the time may be extended to three months.
(d) The report of the Inquiring officer where he is not himself the punishing authority should be submitted within seven days of the closing of the enquiry to the punishing authority or to the Vigilance Commission, if It has so advised.
(e) The punishing authority should make his provisional decision within a fortnight of the date of receipt of the report of enquiry or receipt of the advise of the Vigilance Commission on the report.
(f) The delinquent should be asked to show cause against the proposed punishment of dismissal, removal or reduction In rank, within ten days of the provisional decision.
(g) Where a reference to Public Service Commission Is necessary a report should be obtained within six weeks from the date of receipt of the final explanation of the delinquent.
(h) Final orders should be passed within a fortnight from the date of receipt of the final explanation of the Government servant or the advice of the Commission as the case may be."
29. In other words the entire process from the issuance of the Charge-sheet to passing of the final order was to be completed wilhln a period of five months.
30. The need was reiterated by Memo No. 115/1(16)-ADM(D)/ADM(F) 272-88 which reads :
"The Director-General and Inspector-General of Police, West Bengal, therefore, desires that the disciplinary authority and the enquiring officers should be more alert in quick disposal of the departmental proceedings against police personnel. The time schedule laid down In G.O. No. 3772(200)-FF/FIA-3(28) dated 4.11.67 (copy enclosed for ready reference) should be strictly followed in disposal of such proceedings. The G.O. was also published at para 213 of West Bengal Police Gazette dated 7.11.1986."
31. Despite the guidelines and despite orders of court, the proceedings which were initiated in September 1994 were concluded by the Final Order two and a half years later on 16th June 1995. This lackadaisical attitude is also indicative of malafldes.
32. Sub-rule (4) of Chapter 9 of the PRC expressly requires that the person charged shall be entitled to have such witnesses called as he may require. If the Enquiry Officer refuses to call any witness cited by the person charged, he must have special and sufficient reasons to be recorded in writing. No such reasoning was given by the Enquiry Officer. If the reason, was as suggested by counsel for the petitioner that the High Court had directed the enquiry to be concluded within a particular time, the petitioners could have prayed for time before the court The time fixed by court did not excuse the Enquiry Officer not to held a fair enquiry In accordance with the PRC and the norms of justice. In fact the Enquiry Officers Report only recorded the evidence of the prosecution witnesses. There was no discussion at all of the defence of the respondent and why it was not acceptable. Such an Enquiry Report could not have formed the basis of an order of termination at all.
33. The failure to give the respondent an opportunity of examining any witness in his defence and the non supply of documents is amply borne out from the records the substance of which has been narrated earlier. No reason was also given for refusing the respondent the assistance of a lawyer. The repeated demands for documents were met with silence. No reason has been stated even before us for withholding the documents. Yet In the final order the plea of the respondent that natural Justice had been violated was rejected in the following rather Incomprehensible and contradictory language :
"After perusing the note sheet and finding of the Enquiring Officer 1 find that there was no request from the Charged Officer to examine any defence witness vide note sheet para 2 page X. So his contention is not based on facts. Regarding the production of General Diary of Bellaghata P.S. the Enquiring Officer sent a letter to O.C. Bellaghata P.S. on 4.4.95 to produce extract of G.D. of the date when he was trapped. So It Is not true that he was not given any opportunity to produce the documents. The Charged Officer during submission of his defence argument has not mentioned this fact of non-receipt of documents to the Enquiring Officer. From the enclosures submitted by the Charged Officer during Personal hearing on 23.5.95 I find that he had made a hand written request to the Enquiry Officer and the said request was conveyed to O.C. Bellaghata P.S. So the argument that non-exam I nation of defence witness (which he had never prayed for and non-production of exhibit) has prejudiced the enquiry does not stand. The Charged Officer has alleged violation of principle of Natural Justice mainly on these two counts. So the contention that during the proceeding enquiry, the principle of natural justice was violated does not hold good." (Underlining mine)
34. The finding is that no request for documents was made Is contradicted not only by the records, but also by the underlined portion in the order. Having found that the documents and witness as asked for by the respondent had not been produced, the disciplinary authority could not have found that the principles of natural Justice were not violated. (See : Chittaranjan Choudhury v. State of Bihar : ; Kashinath Dikshita v. Union of India : ; Anandram Jiandral Vaswant v. Union of India : (1983) 1 CLJ 8 (DB).
35. The Disciplinary Authority also misdirected himself as to the law. He noted that the respondent had pointed out several contradictory statements in the evidence or the prosecutlpn witnesses. But he went on to say :
"While even accepting this contention to be true. It may be mentioned here that the test of veracity of statement of witnesses etc. In a disciplinary proceeding is different from that of court proceeding and preponderance of probability is sufficient to substantiate the charges. In this case, recovery of Rs, 4,000/- from underneath the table of the C.O., very much proves his acceptance of bribe."
36. The Disciplinary Authority lost sight of the law that the presumption of Innocence exists not only in criminal but also in departmental proceedings, the only difference being in the standard of proof required for rebutting the presumption. The matter should have been approached keeping in mind this principle. It was not. In the absence of the seizure list, the oral evidence could not have been relied on if it were not cogent Contradictory oral evidence in such a situation on points of substance is insufficient to dislodge the presumption of Innocence. This is all the more true when the delinquent is denied all opportunities of either examining himself or any other witness in his defence. A vital witness, namely Havlldar, named both by Mrityunjoy Das and Baban Mallick was not called at all. Besides the finding was that the money was found 'under the table'. This, apart from not being the charge, was consistent with the defence that the packet was planted there by Mrityunjoy Das and Baban Mallick. The finding of guilt was therefore perverse. The Appellate Authority did nothing more than uphold the finding of the Disciplinary Authority without any discussion at all of the evidence.
37. The conclusion of the Tribunal that the respondent was not given a reasonable opportunity to defend himself and that the finding of guilt was unsupported by evidence is, in the circumstances, unimpeachable. Having reached this conclusion it is not necessary for us to go into the other contentions raised by the respondent assailing the Disciplinary Proceedings.
The order of termination cannot be sustained and the Tribunal rightly quashed It. The appellants are directed to make payment to the respondent of all arrears of salary, and grant promotion, outstanding emoluments and other service benefits. The writ application is also dismissed with costs.
August 4, 1999 The order dated 30th July 1999 be amended by including a direction on ultimate paragraph of the judgment as follows :
"The appelants" must carry out aforesaid direction within 8 (eight) weeks from date.
38. Application dismissed