Calcutta High Court (Appellete Side)
Abdus Salam vs State Of West Bengal & Ors on 20 August, 2009
Author: Indira Banerjee
Bench: Indira Banerjee
1
Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(APPELLATE SIDE)
Present:
The Hon'ble Justice
Indira Banerjee.
W.P. No.14692 (W) of 1998
Abdus Salam
Vs.
State of West Bengal & Ors.
WITH
W.P. No.14691 (W) of 1998
Md. Ali
Vs.
State of West Bengal & Ors.
For the Petitioner: Mr. Pinaki Dhole
For the respondent No.4: Mr. Anjan Chakraborty
Heard on: 16.07.2009 & 17.08.2009 Judgment on: 20.08.2009 INDIRA BANERJEE, J.: The issues in the two writ applications being similar, the same are being disposed of by this common judgment and order.
In challenge in the writ petitions are orders of discharge issued way back in the year 1978 whereby the respective writ petitioners were discharged from service as Assistant Primary School Teachers on the alleged ground of having submitted fake certificates of the Bihar Vidyalaya Pariksha Samity.
The writ petitioner in W.P. No.14692 (W) of 1998 was appointed Assistant Teacher of Berokandul Primary School in District Malda on or about 11th April, 1973. The service of the petitioner was confirmed with effect from 2 nd January, 1975. 2
On or about 1st June, 1974 a criminal case being G.R. Case No.962 (31) of 1974 was started against the petitioner in the Court of Chief Judicial Magistrate, Malda on the basis of a written complaint of the then District Inspector of Schools (Primary Education), Malda alleging that the petitioner had obtained employment by producing a fake Secondary Certificate of Bihar Vidyalaya Pariksha Samity.
Upon completion of preliminary investigation, a charge-sheet was framed. The criminal case continued for years. On or about 12 th October, 1978, the petitioner was discharged from service on the ground of having produced a fake educational certificate. There were similar allegations against numerous primary school teachers of the district.
The writ petitioner in W.P.14691 (W) of 1998 was appointed as Assistant Teacher of Ramchandrapur Primary School in District Malda vide Memo No.580/6 dated 11 th April, 1973. By Memo No.2672/4 dated 21 st March, 1977, the then District Inspector of Schools (Primary Education), Malda placed the petitioner under suspension with effect from 29 th November, 1976 on the allegation that the petitioner had produced a fake certificate of the Bihar Vidyalaya Pariksha Samity.
On 1 st June, 1974 a criminal case being G.R. Case No.982 (45)/74 was started against the petitioner in the Court of Chief Judicial Magistrate, Malda. On conclusion of investigation, a charge-sheet was filed. The proceedings remained pending for years.
It is not necessary to advert to the various developments in the Court of the Judicial Magistrate in relation to the criminal case started against the writ petitioners or to the related proceedings.
3
Suffice it to mention that by an order dated 18 th May, 1998, the criminal cases against the petitioners were dropped since the prosecution had failed to establish its case despite opportunity. It is only thereafter that the writ petitioners initiated writ proceedings in this Court challenging their discharge and claiming reinstatement in view of their acquittal in the criminal cases.
Criminal proceedings are distinct proceedings, which are not necessarily inter- linked with disciplinary proceedings or with discharge simpliciter. Similar writ applications were filed by numerous teachers similarly circumstanced as the petitioners, who had been discharged. In some cases, the discharge orders were without any show- cause notice. In other cases, the discharge orders were passed after giving the concerned teachers opportunity of hearing.
The Courts have taken divergent views on the writ applications filed by the respective teachers. A writ petition being W.P. No.13985 (W) of 1998 was dismissed on the ground of delay.
On the other hand, W.P. No. 8134 (W) of 1998 was disposed of by Ashim Kumar Banerjee, J. by directing that the writ petitioners must get back is employment with all back wages. While His Lordship held that it was true that criminal proceedings had been discharged on the ground of non-production of witnesses and there was no acquittal on merit, His Lordship was of the view that the petitioner was not responsible for the non- production of witnesses.
Criminal proceedings are distinct from disciplinary proceedings. Acquittal from criminal proceedings whether acquittal be an honourable acquittal or an acquittal for technical reasons is not in itself ground for interference with disciplinary action or a discharge simpliciter.
4
It is true that if disciplinary proceedings and criminal proceedings are initiated on identical charges and an employee is honourably acquitted of all charges on merits, it would only be fair to drop the disciplinary proceedings. That is however, not the case here.
The criminal proceedings ended only by reason of non-production of witnesses. There is also substance in Mr. Chatterjee's argument that the petitioners have not produced any materials to show that the certificate in question was a valid certificate.
Mr. Dhole appearing on behalf of the writ petitioners cited the following judgments:
1. Paras Nath vs. Mohani Dasi reported in AIR 1959 SC 1204.
2. R.S. Deodhar vs. State of Maharashtra reported in AIR 1974 SC 259.
3. Deputy Commissioner of Police, Special Branch & Ors. vs. Bhupesh Chandra Karanjai & Anr. reported in 1993(2) CLJ 74.
4. Director General of Police & Ors. vs. Mritunjoy Sarkar & Ors. reported in AIR 1997 SC 249.
5. Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Anr. reported in AIR 1999 SC 1416.
6. Sanjay Kumar Singh vs. Union of India & Ors. reported in 2002 (1) CLJ 203.
7. Rafikul Islam vs. Union of India & Ors. reported in 2002 (1) CLJ 541, and
8. The unreported judgment dated 7 th June, 2005 of Ashim Kr. Banerjee, J. in W.P. 8134 (W) of 1998 (Shyamapada Mondal vs. State of West Bengal & Ors.) In R.S. Deodhar vs. State of Maharashtra the Supreme Court held that the principle on which the Court proceeded in refusing relief to the petitioner on the ground of laches or delay was, that the rights which had accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there was reasonable explanation for the delay.5
The Supreme Court further held that that it might be noticed that the claim for enforcement of a fundamental right to equal opportunity under Article 16 was in itself a fundamental right guaranteed under Article 32 for which the Supreme Court had been assigned the role of a sentinel and it should not be persuaded to refuse relief solely on the ground of laches, delay or the like.
In this case, delay has given rise to creation of third party rights. The posts held by the petitioners had been filled up. This is not a case of denial of opportunity. The petitioners have apparently not been able to show that the petitioners had the requisite qualification for appointment to the posts and that the certificates relied upon were genuine.
In Deputy Commissioner of Police, Special Branch & Ors. vs. Bhupesh Chandra Karanjai a Division Bench held that the appointment of a candidate who was below age could be regularized. The judgment has no application in the facts of this case.
In Director General of Police & Ors. vs. Mritunjoy Sarkar the Supreme Court set aside an order of discharge on the ground of production of a fake list without opportunity of representation to the petitioner. In this case, there has been delay of over twenty years in challenging the order of discharge and/or termination. In twenty four years the petitioners could not get the Bihar Vidyalaya Pariksha Samity to certify that they had cleared the examination and had been issued genuine certificates.
In M. Paul Anthony vs. Bharat Gold Mines Ltd. the Supreme Court held that where the appellant had been acquitted by the criminal court, fresh disciplinary enquiry could not be directed to be instituted on the same set of facts. 6
Significantly, in the aforesaid case, the Supreme Court held that if the criminal case does not proceed or its disposal is unduly delayed, the departmental proceedings, even if there was stay on account of pendency of the criminal case can be resumed and proceeded with so as to conclude the disciplinary proceedings at an early date.
In Sanjay Kumar Singh vs. Union of India a Single Bench of this court held that in case of acquittal in criminal proceedings on the same facts, dismissal order was liable to be set aside. The acquittal in the aforesaid case was, however, on merits and not for technical reasons as in this case.
In this case, admittedly, these writ petitions had been initiated after 22 years. There was no attempt to establish the genuineness of the certificate on the basis of which employment had been obtained.
The interference of this Court after delay of 22 years is not warranted. It is now well-settled that even in a case of wrongful termination, reinstatement is not automatic and in any case, not with full back wages.
The writ applications are thus dismissed.
(Indira Banerjee, J.)