Calcutta High Court (Appellete Side)
Sri Sandip Garai vs State Of West Bengal & Others on 26 August, 2016
Author: Tapabrata Chakraborty
Bench: Nishita Mhatre, Tapabrata Chakraborty
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Nishita Mhatre
&
The Hon'ble Justice Tapabrata Chakraborty
W.P.S.T. 129 of 2016
Sri Sandip Garai
Versus
State of West Bengal & Others
For the Petitioner : Ms. Usha Maity,
Mr. Sakya Maity.
For the State : Mr. Joytosh Majumder,
Mr. Pinaki Dhole.
Hearing is concluded on : 11.08.2016.
Judgment On : 26th August, 2016.
Tapabrata Chakraborty J.
1. The instant writ petition has been preferred challenging
an order dated 21st September, 2015 passed by the learned
tribunal in OA No.1530 of 2013.
2. The facts, in a nutshell, are that the petitioner
participated in a selection process of the year 2002 for
appointment to the post of constable under Kolkata Police.
Though the petitioner emerged to be successful, no appointment
letter was issued. Aggrieved thereby, the petitioner approached
the learned tribunal and the said application, being WPST 656 of
2007, along with other similar matters were rejected by a
judgment dated 11th July, 2006. Challenging the same, the
petitioner approached this Court and by an order dated 5th
December, 2007 this Court directed the respondents to take
steps for appointment in accordance with law. Challenging the said order the State authorities preferred Special Leave Petitions and the same were ultimately dismissed by an order dated 6th January, 2008. Subsequent thereto, the petitioner preferred an application for contempt and ultimately the Kolkata Police authorities summoned the petitioner for a medical test on 10th August, 2011 and also directed him to submit the verification roll. In the verification roll under column 13 it was questioned "Have you ever been convicted by a court in any offence or charge- sheeted by the police in connection with criminal proceeding. If so, full particulars of the case should be given ?". The petitioner answered that "No, charge-sheeted in Mangolkot P.S. Case No.83 of 2006 dated 14.7.2006 under sections 498A/304B/34 of Indian Penal Code arising out of G.R.Case No.251 of 2006 in connection with Sessions Case No.117 of 2008". Thereafter the respondents maintained a deceptive silence and as such the petitioner issued a letter dated 22nd May, 2013 but as the same was not responded to and as no order was passed by the competent authority, the petitioner was constrained to approach the learned tribunal and the said application was dismissed by the order impugned in the present petition.
3. A perusal of the order impugned reveals that the learned tribunal was pleased to reject the petitioner's application placing reliance upon a judgment delivered in the case of State of West Bengal and Others -vs- Sk. Nazrul Islam wherein it was held "Surely, the authorities entrusted with the responsibility of appointing constables were under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of constable and so long as the candidate has not been acquitted in the criminal case of the charges under Section 148/323/380/427/596 IPC, he cannot possibly be held to be suitable for appointment to the post of Constable". The learned tribunal was pleased to hold that the said decision is squarely applicable to the facts of the case and observed that "having a wholesome appreciation of the entire issue we feel that at the present stage, pending decision in the Trial this O.A. fails and is accordingly disposed of".
4. Ms. Maity, learned advocate appearing for the petitioner submits that without considering the nature of the charges levelled in the criminal proceeding and the gravity of the offences involved, the learned tribunal has rejected the petitioner's claim by a cryptic order. There is no allegation of suppression of fact against the petitioner and upon emerging to be successful in the selection process pertaining to the year 2002, he is yet to get appointment and in the midst thereof, a period of fourteen years have elapsed and the petitioner's fundamental right towards life and livelihood has been severely affected. The respondents have not yet passed any final order upon considering the petitioner's representation and in the backdrop of such facts it would not be unreasonable to seek an answer from the authorities as to why the petitioner cannot be appointed during pendency of the criminal proceeding. Only after a final order is passed by the competent administrative authority, the learned tribunal can examine the same and decide as to whether such order warrants intervention in exercise of the powers of judicial review. Admittedly, no order has been passed by the competent authority disclosing the reasons as to why the petitioner cannot be appointed subject to the criminal proceeding and prior to adoption of such decision by the competent executive functionary, learned tribunal ought not to have rejected the petitioner's claim.
5. She further submits that an offence under Section 498A has no nexus with the employment sought since it does not relate to an offence against the person or property of employer or co- employee, in course of employment, at the place of employment or in connection with the employment of the employee.
6. She further submits that even in the event the petitioner is given appointment, the same would be probationary in nature subject to confirmation upon ascertainment of the petitioner's conduct, diligence, sincerity and efficiency. During the probationary period the petitioner can be kept under strict surveillance and can be removed at any time prior to confirmation in the event the petitioner fails to meet the tests and that as such there can be no embargo towards appointment of the petitioner subject to the criminal proceeding. In support of her arguments reliance has been placed upon the judgment delivered in the case of Avtar Singh -vs- Union of India & Ors, reported in JT 2016 (7) SC 300 wherein the Hon'ble Supreme Court has summarised the conclusion in paragraph 30 as follows:-
(1) Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.
(3) The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
(4) .....
(5) .....
(6) In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case is trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.
7. Per contra, on behalf of the State respondents it has been argued that even in the event the petitioner is discharged or acquitted, the State authorities are not under any obligation to give appointment to the petitioner in a disciplined force. The verification of the criminal antecedent is one of the important criteria to test whether the selected candidate is suitable for the post and as to whether it is desirable to appoint such a person. The petitioner is facing charges under Sections 498A/304B/34 of IPC and the same cannot, by the furthest of imagination, be construed to be trivial in nature. In connection with the proceeding the petitioner was in custody for 33 days. As such, the petitioner does not come under clause 6 of paragraph 30 of the judgment delivered in the case of Avtar Singh (supra). Furthermore, the judgment delivered in the case of Mehar Singh (supra) has not been taken into consideration in the case of Avtar Singh (supra).
8. It has been strenuously argued on behalf of the State respondents that to avail appointment in police service, the candidate must be having an impeccable character, integrity and rectitude. Stricter norms need to be applied while appointing any person in a disciplinary force because it involves public interest. The petitioner is involved in a criminal proceeding involving serious charges and such proceeding is yet to be concluded and that as such the antecedents of the petitioner do not warrant appointment in police service.
9. In support of such contention reliance has been placed upon the following judgments :
a) Delhi Administration through its Chief Secretary and Others -vs- Sushil Kumar, reported in (1996) 11 SCC 605;
b) State of West Bengal and Others -vs- Sk. Nazrul Islam, reported in (2011) 10 SCC 184;
c) Sri Animesh Roy -vs- The State of West Bengal & Ors, reported in 2013 (4) CHN 137;
d) Commissioner of Police, New Delhi and another -vs-
Mehar Singh, reported in (2013) 7 SCC 685;
e) State of Madhya Pradesh and Others -vs- Parvez Khan, reported in (2015) 2 SCC 591;
f) Partha Sarathi Sinha -vs- The State of West Bengal and others, reported in (2015) 4 Cal LT 542;
g) Sri Sourabh Dutta -vs- The State of West Bengal & Anr.
10. In the case of Sushil Kumar (supra) the petitioner approached the Central Administrative Tribunal challenging the final order dated 18th December, 1990 passed in the proceeding upon verification of the antecedents and in the case of Sourabh Dutta (supra) the petitioner was intimated by a letter dated 9th September, 2010 that he could not be considered for appointment to the post of Sergeant because of the pendency of a criminal case and aggrieved by such decision the tribunal was approached. In the case of Parvez Khan (supra), the order of the Superintendent of Police observing that the writ petitioner was not eligible for appointment in government service was challenged by way of a writ petition. In the said case also the validity of an order passed by the competent administrative authority was tested by the Court in exercise of its power of judicial review. The said judgments are distinguishable on facts since in the instant case no final order has been passed by the competent authority, being the respondent no.3, upon considering the representation of the petitioner.
11. In the case of Sk. Nazrul Islam (supra) the fact of involvement in a criminal proceeding was suppressed by the petitioner therein. The said judgment is distinguishable on facts since in the instant case the factum of involvement in a criminal proceeding has not been suppressed by the petitioner.
12. The issue as to whether prior to issuance of an order by the competent administrative authority the learned tribunal can step into the shoes of the said authority and dismiss the petitioner's claim was not argued in the case of Sri Animesh Roy (supra) and in the case of Partha Sarathi Sinha (supra). A perusal of the judgment delivered in the case of Partha Sarathi Sinha (supra), however, reveals that in the earlier round of litigation the petitioner challenged the inaction of the respondents to consider his claim for appointment and the learned tribunal relegated the matter to the competent administrative authority for consideration of the petitioner's claim and pursuant to the said order the Deputy Commissioner of Police (Head Quarters) Kolkata granted an opportunity of personal hearing and considered the petitioner's representation and rejected the same by an order dated 26th August, 2004 and the same was challenged by the petitioner in the subsequent application.
13. In the case of Mehar Singh (supra) it was decided that under the Delhi Police Rules past involvement of a person in a criminal case is not a disqualification for appointment. However, in clause(6) of the standing order no.398/2010 of Delhi Police, the screening committee has the discretion to take appropriate decision in such cases where a candidate who has disclosed his involvement in criminal case is acquitted or discharged of serious offence not honourably but by extending benefit of doubt or because the witnesses have turned hostile. In the case of Mehar Singh (supra) the writ petitioner therein was examined by the screening committee constituted by the Commissioner of Police, Delhi and a notice was issued calling upon him to show cause as to why his candidature should not be cancelled to which a reply was filed and upon consideration of the same the screening committee observed that in the totality of the circumstances he is not suitable for appointment to the post of constable. Such decision was challenged by way of an application before the Central Administrative Tribunal. The case of Mehar Singh (supra) was heard along with an appeal preferred by the Commissioner of Police, New Delhi against one Shani Kumar and the facts involved in the same was almost identical to the case of Mehar Singh and in the said matter Shani Kumar was also issued a show cause notice to which he filed a reply and upon consideration of the same an order was passed by the Deputy Commissioner of Police cancelling the candidature of the Shani Kumar to the post of constable. In the cases of Mehar Singh heard along with Shani Kumar after the competent administrative authority adopted a decision, the validity of the same was considered by the learned tribunal. In the instant case prior to formation of any opinion and issuance of any order by the competent authority, the learned tribunal rejected the petitioner's claim quoting the observation of the Court in Sk. Nazrul Islam (supra).
14. The philosophy behind penology has undoubtedly, undergone a sea change through the centuries. Initially, the philosophy of penology was one of retribution and finally, in the present world, it is well settled that the ends and the scope of a penalty is not only punitive, corrective and preventive, but also regenerative, in the sense that it has also the goal of reforming the offender, rehabilitating him and making him again a good citizen. There has been an increasing emphasis on the reformation and rehabilitation of the offender as an useful and self-reliant member of the society without subjecting him to the deleterious effects of long pending litigation. Thus, the competent executive functionary ought to have considered the petitioner's claim towards appointment subject to the pending criminal proceeding upon taking note of the nature of the offence, character of the offender, circumstances intervening in between the pendency of the case, previous conduct of the offender and his conduct during the course of trial.
15. Court in exercise of its jurisdiction cannot step into the shoes of the executive/administrative authority to determine the issue as to whether the petitioner can be appointed during pendency of the criminal proceeding. The employer is required to exercise his discretion in a reasonable manner and in the totality of the circumstances to arrive at a finding. The question whether a person is fit to be appointed should be left to the employer since the assessment is to be made in respect of each parameter stipulated for such assessment. Such exercise cannot be undertaken by the Court. What is to be examined by the court is whether there is any procedural irregularity or any illegality in the matter of consideration of the issue of appointment. Without deciding the issue itself, the learned tribunal ought to have relegated the matter to the competent authority. Unless we intervene at this stage the inaction of the executive will earn immunity. As is customary in this jurisdiction, the court would, at the first instance, ordinarily not do the thing or render the decision that the executive functionary ought to do in the circumstances.
16. For the reasons discussed above, the impugned order dated 21st September, 2015 passed by the learned tribunal in OA No.1530 of 2013 is set aside and the respondent no.3 is directed to consider the petitioner's representation submitted through his learned advocate on 22nd May, 2013, upon granting an opportunity of personal hearing to the petitioner and to pass a reasoned order, taking into consideration the government orders and instructions and in accordance with law, within a period of eight weeks from date, uninfluenced by the observations of the learned tribunal made in the impugned order.
17. With the above observations and directions, this writ application is disposed of.
There shall, however, be no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
(Tapabrata Chakraborty, J.) (Nishita Mhatre, J.)