Calcutta High Court (Appellete Side)
Debabrata Biswas vs The State Of West Bengal & Ors on 20 May, 2011
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1
5.2011 WP 5738 (W) of 2011
Debabrata Biswas vs. The State of West Bengal & Ors.
Mr. Joydeep Kar
Mr. B. Bhattacharrya
Miss Reshmi Ghosh ..For the petitioner.
Mrs. Suchitra Saha ..For the State.
This writ application is directed against an order dated November 19, 2010 passed by the
Joint Secretary, Government of West Bengal directing the petitioner to appear before the
investigating officer, Sri Parth Sarathi Chakraborty, Sub-Inspector of Police, Vigilance
Commission, West Bengal.
At the very outset, a preliminary objection is raised with regard to the maintainability of this
writ application.
It is submitted by the learned Counsel appearing for the State-respondents that a similar
issue was involved in the matter of Arun Kumar Mukherjee vs. Dhirendra Kumar Saha reported in 1994 (1) CLJ 153 and a Division Bench of this High Court decided the issue against the State Government. The above decision was challenged before the Hon'ble Supreme Court and the same was referred and tagged with the matter of L. Chandra Kumar. In view of the decision of L. Chandra Kumar vs. Union of India, this Court has no determination. It is also submitted that after disposal of the matter of L. Chandra Kumar vs. Union of India, the aforesaid appeal bearing Civil Appeal No. 2196 of 1994 was disposed of separately on April 22, 1997, relying upon the Judgment of L. Chandra Kumar vs. Union of India with regard to the question of jurisdiction of this High Court.
It is submitted on behalf of the petitioner that the point of jurisdiction of the High Court to entertain the issue under reference was not decided in the matter of L. Chandra Kumar vs. Union of India. In the matter of Najrul Islam vs. State of West Bengal reported in 2008(3) CHN 564, it was decided that the instant issue was not related to the conditions of service. Therefore, the writ application was maintainable.
Having heard the learned counsel appearing for the respective parties and also considering the preliminary objection, I find that admittedly the issue involved in this matter relates to open 2 enquiry by Vigilance Commission appointing Investigating Officer of a rank of Sub-Inspector of Police against an officer belonging to Indian Forest Service.
Admittedly, by a judgment delivered in the matter of Arun Prasad Mukherjee vs. Dhirendra Kumar Saha reported in 1994 (1) CLJ 153, a Division of this Court held that the writ court had the jurisdiction to take up a similar matter relating to an investigation against an officer belonging to Indian Police Service. It is not in dispute that an appeal bearing Civil Appeal No. 2196 of 1994 (In re: Arun Prasad Mukherjee vs. Dhirendra Kumar Saha) was preferred. It is also not in dispute that the Hon'ble Supreme Court disposed of the above appeal by an order April 22, 1997 and the relevant portion of the above above order is quoted below:
"The Appeal above-mentioned being called on for hearing before this Court on the 22nd day of April, 1997. UPON perusing the record and counsel for the parties herein not being present, THIS COURT DOTH PASS the following ORDER:
"On 23rd February, 1995 the following order was made by a Bench of this Court. "The appellant no. 3, the State Government, through its Secretary, Home Department, who is appellant no. 5, will furnish to the respondent all the material collected by the Vigilance Commission in respect of the respondent and give him an opportunity to clarify the points arising out of the said material or any further material that may be pointed out to him the appellant no.1, the Vigilance Commissioner, may remain present at the time of such clarification. In view of this order, this appeal against the respondent so far as the facts are concerned stands disposed of.
However, the question of law with regard to the jurisdiction of the High Court survives and the appeal for that purpose be tagged with Civil Appeal Nos. 1532-1533 of 1993 referred to the Constitution Bench. Shri A.K. Ganguli is appointed as amicus curiae to represent the other side of the matter in this appeal.
The appellant will not give any publicity to this order hostile to the respondent."
The question of jurisdiction of the High Court has been decided by the Constitution Bench of this Court reported in the matter of L. Chandrakumar vs. Union of India and others: JT 1997 (3) SC 589 equivalent to 1997(3) Scale 40. This appeal, therefore, does not merit any further consideration. It is accordingly disposed of. No costs."
AND THIS COURT DOTH FURTHER ORDER that this ORDER be punctually observed and carried into execution by all concerned;
3WITNESS the Hon'ble Shri Jagdish Sharan Verma, Chief Justice of India at the Supreme Court, New Delhi dated this the 22nd day of April, 1997."
From the above order it appears that the Hon'ble Supreme Court observed that the question of a High Court had been decided by the Constitution Bench of the Hon'ble Supreme Court in the matter of L. Chandrakumar (supra). On the basis of the observations, the above matter was disposed of without further consideration of that issue.
For proper adjudication of the issue involved in this matter, relevant portions of the decision of L. Chandrakumar vs. Union of India reported in AIR 1997 SC 1125 are quoted below :
"99. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular 4 Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated."
In view of the above, this writ court has no determination to take up a matter relating to issue under reference. Needless to point out that in the case decided by the Hon'ble Supreme Court, the person concerned belonged to Indian Police Service. In the instant case, the person belongs to Indian Forest Service. That makes no difference.
So far as the subsequent decision of a Single Bench of this High Court in the matter of Najrul Islam vs. State of West Bengal reported in 2008(3) CHN 564 is concerned, upon a closed scrutiny of that judgment, I find that the order of disposal of Civil Appeal No. 2196 of 1994 (In re:
Arun Prasad Mukherjee vs. Dhirendra Kumar Saha) dated April 22, 1997 was not considered in the above case. Therefore, that judgment has no manner of application in this case so far as the point of jurisdiction is concerned.
In view of the above, this writ application is dismissed without entering into the merits of this case. This order, however, will not prevent the petitioner to approach the appropriate forum on the selfsame cause of action, if it is so advised.
Urgent xerox plain copy of this order be given to the parties on usual undertaking.
( Debasish Kar Gupta, J.)