Calcutta High Court (Appellete Side)
Ms. Sumita Das ... For vs State Of West on 9 April, 2010
Author: Pranab Kumar Deb
Bench: Pranab Kumar Deb
09.04.10
(31)
(d.c.)
WPST 53 of 2010
Mr. Kausik Chanda
Ms. Sumita Das ... for petitioner
Ms. Chameli Majumder
Mr. Swarup Paul .. for the State
This writ petition has been filed at the instance of the petitioner
assailing the judgment and order dated 12th January, 2010 passed by the
West Bengal State Administrative Tribunal in case No. O.A. 1041 of 2009
whereby and whereunder the said learned Tribunal dismissed the
application filed by the petitioner herein on merits.
The petitioner herein was selected for appointment to the post of
work assistant in the department of Sundarban Affairs, Sundarban
Development Board, Government of West Bengal in the year 1996. The
aforesaid petitioner, however, was not allowed to join the service in spite of
being selected to the aforesaid post in view of non-availability of the report
from the police authorities in respect of the petitioner.
From the impugned judgment and order passed by the learned
Tribunal, we find that the police verification report was not submitted in
respect of the petitioner till February 2005. Only on 11th February, 2005
Dy. Inspector General of Police, Intelligence Branch, informed the
respondent No. 2 that the petitioner herein was unsuitable for employment
to the post of work assistant. Thereafter the said respondent No. 2 informed
the petitioner by written communication dated 28th February, 2005 that the
Dy. Inspector General of Police, Intelligence Branch had returned the police
verification report with the comments that the petitioner herein was
unsuitable for employment to the post of work assistant. The written
communication of the respondent No. 2 is set out hereunder :
"GOVERNMENT OF WEST BENGAL
SUNDARBAN DEVELOPMENT BOARD
DEPARTMENT OF SUNDARBAN AFFAIRS
MAYUKH:1ST FLOOR
SALT LAKE CITY
KOLKATA-91.
No. 448/SDB/2E-9/96 Dated, Kolkata,the 28th February, 2005.
2
From : The Dy. Project Director (Admn.).
Sundarban Devdelopment Board,
To : Shri Niranjan Adhikary,
`Vill. + P.O. - Narayanpur,
Via - Bansra,
P.S. Cannning,
Dist. 24-Parganas (South)
Subject - Police Verification Report.
With reference to the subject noted above this is to inform that
the Dy. Inspector General of Police, Intelligence Branch has returned the
Polcie Verification Roll with the comments that "Shri Niranjan Adhikary is
unsuitable for employment to the post of Wrok Assistant" under the
Sundarban Development Board.
Dy. Project Director (Admn.)"
The Dy. Inspector General of Police by his written communication
dated 11th February, 2005 declared the petitioner unsuitable for the
employment even without disclosing any reason. The written
communication of Dy. Inspector General of Police, Intelligence Branch
dated 11th February, 2005 addressed to the respondent No. 2 is set out
hereunder:
"Confidential. Intelligence Branch, West Bengal
13, Lord Sinha Road,
Kolkata-71, Dt. 11th Feb. 2005
Memo No. 4141/S-172-2005/S.B./V.R.
To
The Deputy Project Director (Admn.)
Sundarban Development Board,
Govt. of West Bengal,
Mayukh Bhaban (1st floor),
Salt Lake city, Kolkata-91.
Sub : Verification of C/A in respect of Shri Niranjan Adhikary s/o Nabankur
Adhikary of Narayanpur, P.S. Canning, South 24-Parganas.
Ref : Your endorsing memo No. 591/SDE/2E-9/95 dt. 22.3.2001 addresing
to Addl. S.P., D.I.B., South 24-Parganas.
------------
In returning herewith the V.Roll (in original) of the above named V.R. Subject the undersigned writes to say that Govt. Consider Shri Naranjan Adhikary UNSUITABLE for employment to the post of work Assistant under the Deputy Project Director (Admn.), Sunderban Development Board vide Memo No. 96 P.S. Dt. 19.1.2005 of Assistant Secretary to the Govt. of West Bengal Home (Poll) Deptt, Writers' Building, Kolkata.
for Deputy Inspector General of Pol.
3I.B. West Bengal."
Ms. Chameli Majumder, learned Advocate, representing the State-respondents referred to the Memo dated 4th November, 2003 whereby the Spl. Superintendent of Police, I.B. West Bengal informed the Assistant Secretary, Government of West Bengal, Home (Political) Department, Kolkata in respect of the petitioner as hereunder :
"IMMEDIATE INTELLIGENCE BRANCH,
West Bengal,
13, LORD SINHA ROAD, KOLKATA-71
THE 4th November, 2003
MEMO NO. 38/65
S-172/sb/02/V.R.
To
The Assistant Secretary to the
Government of West Bengal,
Home (Political) Department,
Writers' Buildings,
Kolkata-700 001.
Sub : Verification of character and antecedents in respect of Niranjan Adhikary S/o. Naba Kumar Adhikary of Narayanpur, P.S.Canning.
-----------
The abovenamed candidate has been selected for the post of Work-Assistant under the Dy. Project Director (Admn.) Sundarban Development Board, Govt. of West Bengal, Mayukh Bhavan, 1st Floor, Salt Lake City, Kolkata - 91.
Identity and Nationality of the candidate have been established.
Study and Date of Birth of the subject have also been verified and found to be correct (as per school records).
During enquiry it revealed that the candidate was involved in five specific cases viz. (1) Canning P.S. Case No. 148 dated 12.7.95 u/s 325/326/34 IPC. (2) Canning P.S. Case No. 195(8)96 u/s 25/27 Arms Act, (3) Canning P.S. Case No. 167(7) u/s 147/323/379 I.P.C. (4) Canning P.S. Case No. 134(9)97 BGR - 3859/97 and (5) Hare Street P.S. Case (under Kolkata Police) No. 390 dated 15.8.96 (CR-1098/S and subsequently the candidate has been acquitted from the first four cases and was discharged from Hare Street P.S. Case No. 390 dt. 15.8.96 by Ld. C.M.H. Kolkata. But out of the five cases, the candidate mentioned only about the Canning P.S. Case No. 195(6) 96 in his V.Roll, Photocopies of the F.R.Rs. and copies of Court Information Slips of the said cases are enclosed for information. A written explanation of the V.R. subject also enclosed for taking necessary action at your end.
At the subject suppressed the material fact of his involvement in four specific cases out of five cases and as he was repeatedly involved in 4 the cases like assault, rioting, arms' possessing etc. (which indicates that the subject's character and antecedence is questionable), there is objection from police point of view in respect of his appointment in Govt. Service.
Hence, the case is referred to Government for decision over the suitability or otherwise of the subject for appointment in Govt. Service.
A copy of V.Roll is also enclosed as ready reference.
(B.N.Ramesh) Spl. Superintendent of Police, I.B. West Bengal"
In the aforesaid report the Spl. Superintendent of Police, alleged that the petitioner herein suppressed the material facts regarding his involvement in four specific criminal cases. The Spl. Supdt. of Police raised objection from the police point of view in respect of appointment of the petitioner in government service due to repeated involvement of the said petitioner in criminal cases.
The said Spl. Supdt. of Police in the aforesaid Memo, however, specifically mentioned that the petitioner herein was acquitted from the four criminal cases out of five and also discharged from the remaining case. The Dy. Inspector General of Police did not refer to the aforesaid Memo of the Spl. Supdt. of Police, I.B. West Bengal and simply declared the petitioner as unsuitable for employment to the post of work assistant.
In any event, it is not in dispute that the petitioner was involved in five specific criminal cases out of which in four cases the said petitioner was acquitted and in the remaining case, the competent criminal court discharged the said petitioner. In the aforesaid circumstances we fail to understand how the concerned police authorities can declare the petitioner unsuitable for Government Service.
With regard to suppression of material facts, we find that in column 13 of the police verification report, the petitioner was asked to disclose whether he was arrested, detained or convicted of any offence. The petitioner duly informed that he was arrested by police in connection with Canning P.S. Case No. 195(8) 9. It has been urged that the petitioner did not disclose about his involvement in other four criminal cases. The 5 petitioner was never asked to furnish any details about his involvement in criminal cases.
Clause 13 of the Verification Form is set out hereunder :
"13. Have you been arrested detained I was arrested by or convicted of any offence. If the police in conne- the answer is YES the full parti- ction with Cann-
culars of the arrest or detention ing P.S. Case No.
or conviction and the sentence 195(8) 9 (B.B.R.
be given. 4505/96). But I
was acquitted
from the case on
09-01-01 by 8th
J.M. (Alipore)"
In terms of Sl. No. 13 of the Verification Roll, the petitioner herein was required to disclose whether he was arrested detained or convicted of any offence and there was no necessity to furnish any information with regard to the involvement in pending criminal case/cases unless the said petitioner was arrested and/or detained and/or convicted. Since the petitioner was not arrested, detained or convicted in any other criminal case apart from Canning P.S. Case No. 195 (8) 9 (B.B.R.4505/96), it cannot be said that the said petitioner had suppressed any information as was required to be disclosed under the rules or in terms of the Verification Roll. Furthermore, it is well settled that mere pendency of the criminal proceedings do not disqualify a person to be appointed as a government servant.
The principle of presumption of innocence is very much applicable in the facts of the present case. Until and unless anybody is convicted, he/she should be presumed to be innocent.
In the case of Abhijit Bhattacharjee vs. State of West Bengal & Ors., reported in (2009) 4 CAL LT 63 (HC), a Division Bench of this Court specifically held as hereunder :
"26. Following the principle of presumption of innocence the appellant should have been presumed to be innocent as every person should be presumed to be innocent until the contrary is proved."
The respondent authorities, particularly, the respondent No. 2 refused to allow the petitioner to join the service even after being selected 6 only on the ground of non-submission of favourable police report. After a lapse of considerable period, the police authorities submitted a report declaring the petitioner unsuitable without any valid reason.
The concerned police authorities having full knowledge of acquittal/discharge of the petitioner from all the criminal cases could not have declared the petitioner unsuitable for employment to the post of work assistant. The respondent No. 2 also committed an error upon placing such police verification report wherein no reason has been mentioned for declaring the petitioner unsuitable for employment to the post of Work Assistant.
Scrutinising the confidential report of the Dy. Inspector General of Police dated 11th February, 2005 We do not find any reason for declaring the petitioner unsuitable for employment to the post of work assistant.
The learned Tribunal, in our opinion, has committed a mistake by not appreciating the fact that the police verification report did not disclose any reason for declaring the petitioner unsuitable.
In the aforesaid circumstances, we hold that the report submitted by the Dy. Inspector General of Police, Intelligence Branch, West Bengal in respect of the petitioner did not disclose any valid and lawful adverse comment with regard to the suitability of the petitioner and, therefore, the respondent No. 2 was not entitled to declare the petitioner unsuitable for employment to the post of work assistant.
In the aforesaid circumstances, the order dated 28th February, 2005 issued by the respondent No. 2 cannot be sustained and the same is accordingly quashed.
For the identical reasons the impugned judgment and order passed by the learned Tribunal also cannot be sustained and the same are accordingly set aside.
Since a considerable time has lapsed, we direct the concerned authority of the Department of Sundarban Affairs, Government of West Bengal as well as Sundarban Development Board, Government of West Bengal to issue appropriate order allowing the petitioner to join the post of work assistant in terms of the Memo dated 29th August, 1996 7 without any further delay but positively within a period of two weeks from the date of communication of this order and pay all admissible salary and allowances regularly.
The writ petition thus stands allowed.
In the facts of the present case, there will, however, be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the parties as early as possible.
(Pranab Kumar Chattopadhyay-J.) (Pranab Kumar Deb- J.) 8 (Pranab Kumar Chattopadhyay-J.) (Pranab Kumar Deb -J.)