Calcutta High Court (Appellete Side)
Sri Goutam Bhattacharjee vs The State Of West Bengal & Others on 3 August, 2016
Author: Rakesh Tiwari
Bench: Nishita Mhatre, Rakesh Tiwari
1
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Nishita Mhatre
And
The Hon'ble Justice Rakesh Tiwari
WPST No. 220 of 2015
Sri Goutam Bhattacharjee
- Petitioner
Vs.
The State of West Bengal & Others
- Respondents
For the Petitioner : Mr. Keshab Bhattacharya
Mrs. Susmita Mukherjee.
For the State : Mr. Tapan Kumar Mukherjee
Mr. Nilotpal Chatterjee
Mr. R. N. Dutta
Heard on: 24th June, 2016.
Judgment on : 3rd August, 2016.
Rakesh Tiwari, J.:
1. The facts of the case in a nutshell are that Gautam Bhattacharjee was appointed as a constable (Personal Identification no. C/568) in Armed Police, West Bengal. He was unauthorisedly absent on 09.003.1999 and claims that he was falsely implicated in a criminal case by his relatives. The criminal case was registered at Gangajalghati Police Station as Case No.14 of 1999 on 9th March, 1999 under Sections 324/325/307/34 of the Indian Penal Code, 1860 and Sections 25/27 of the Arms Act. The delinquent employee/Petitioner was thereafter also proceeded with in a departmental case in 2 Bankura District Proceeding No.2 of 1999, dated 23.03.1999 wherein the following charge was framed against him.
"The constable was found involved and became a FIR named accused in Gangajalghati P.S. Case 14/99 dated 09-03-99 u/s 324, 325, 307, 34 IPC 25 and 27 Arms Act and for his such misdeed he was taken in Jail custody on 10-03-1999"
2. The defence of the Petitioner in the departmental proceeding was that he had fallen sick on 9th March, 1999 and had taken command for treatment. He had come to know about the arrest of the members of his family in the aforesaid criminal case, being Gangajalghati Police Station Case No.14 of 1999. Therefore, he felt necessary to surrender on 10th March, 1999 before the Court as his name was also implicated, despite his treatment for sickness.
3. The departmental enquiry was proceeded against the Petitioner and culminated in an order of dismissal dated 8th November, 2001, passed by the Superintendent, Bankura.
4. Aggrieved by the order of his dismissal, the Petitioner preferred an appeal before the Deputy Inspector General of Police, Midnapore Range, who also confirmed the order of dismissal passed by the Superintendent of Police, Bankura, by his order dated 28.06.2002.
5. The aforesaid proceedings led to the Petitioner in preferring an original application under Section 19 of the Administrative Tribunal Act, 1985 which was registered as OA-1445 of 2002 challenging the departmental proceedings and the disciplinary action taken thereon conferring the order of dismissal from service. 3
6. During the pendency of the aforesaid original application, the Session Case No.8(2)2003, which arose from the Gangajalghati Police Station Case No.14 of 1999, dated 9th March, 1999 under Sections 324/325/307/34 of the Indian Penal Code, 1860 and Sections 25/27 of the Arms Act, ended in acquittal of the Petitioner and the other accused person therein. As regards the Petitioner is concerned, it appears that from the cross-examination of one of the prosecution witnesses namely P.W.1, had categorically stated ".........that Goutam Bhattacharya was not available in Bankura at the relevant point of time."
7. This statement was also brought on record by him in OA No.1445 of 2002 by means of supplementary affidavit. The OA itself was disposed of by a judgment and order dated 15th May, 2007 directing the DIG, Midnapore to consider the factum of acquittal of the Petitioner from the criminal case and pass necessary orders. The relevant extract of the judgment is quoted hereinbelow:
"The respondent authorities specially respondent No.3 i.e. D.I.G. of Police Midnapore Range is directed to take into consideration the fact of acquittal of the petitioner from the criminal case and to pass any further appropriate order in according to law within a period of two months from the date of communication of the order and communicate the same to the petitioner within next 2 weeks."
8. Consequently, the Deputy Inspector General of Police, Midnapore Range, on consideration of the case of the Petitioner, pursuant to the judgment and order dated 15th May, 2007, passed Range Order No.82/MR, dated 14.08.2007 extracted below "The following finding is arrived at:-
4
The C.O. was placed under suspension. Regular Departmental enquiry was done by initiating Departmental proceeding against the C.O. The E.O. in his findings proved all the charges drawn up against the C.O. The C.O. was dismissed at the conclusion of departmental proceeding passed by Supdt. of Police, Bankura.
According to judicial precedence noted in WBSR Part-I Rule-9.
"The Court upheld the order of dismissal of the delinquent employee acquitted by the criminal Court, but found guilty by the Departmental enquiry held simultaneously on the similar charge".
(Narayan Rao -vs-m State of Karnataka (1981)1 SLJ 18 & (Ker).) The C.O. was acquitted in the Court and preferred appeal in SAT for reinstatement. But considering the findings of the Departmental proceeding, the C.O. may not get order of re-instatement, as he was dismissed after Departmental proceeding. The final order of Supdt. of Police, Bankura was upheld by the then appellate authority i.e. DIG, MR KGP.
The Hon'ble SAT directed to take into consideration the fact of acquittal of the C.O. But the C.O. was dismissed after the charges of Departmental proceedings were proved, and the dismissal was not based on conviction in a Court only.
Hence, considering all aspects of the proceedings, the order of Hon'ble SAT and the judicial precedence, I am of the opinion that the order of dismissal will stand.
Let a copy be served on the dismissed Constable Goutam Banerjee by regd. post as per direction of Hon'ble SAT in O.,A. No. 1445 of 2002. Let a copy of the order be set to Suptd. Of Police, Bsnkura also.
Sd/- N.R. Babu Deputy Inspector General of Police, Midnapore Range."
9. The aforesaid order dated 14th August, 2007 passed by the Deputy Inspector General of Police, Midnapore Range was challenged by him by means of OA-6647 of 2007 wherein he prayed for the following reliefs:
"(a) Setting aside and/or quash the order of dismissal of the Applicant herein and thereby 'reinstating the Applicant into service on and from 08-11-2001;
(b) Setting aside his period of suspension from 23-03-99 to 23-11-1999 and payment of salaries in accordance with law;
(c) Payment of salaries to the Applicant from 08-11-2001 onwards;
(d) Cost incidental of this application;
(e) Such other order or orders so as to this Learned Tribunal may deem fit and proper."
10. The aforesaid original application was disposed of by the Tribunal vide its judgment and order dated 15th December, 2009 directing thus:
"In the light of above observation, we are inclined to allow this application. We shall quash the order of dismissal forthwith. We direct the authority to reinstate the petitioner within a period of 8 (eight) weeks from communication of this order. We make it clear that having regard to the factual background of the case, the petitioner shall not get any back wages from date of dismissal till his reinstatement, but, that period cannot be counted towards his retiral benefits. We also make it clear 5 both on the ground of unauthorised absence and for material suppression of fact, the petitioner is liable to be penalized and we leave it the authority to impose any other punishment in accordance with rule for those charges and that should be done within three months after reinstatement of the petitioner.
With this, we dispose of this application.
Supply plain copy to all the sides."
11. Aggrieved by the order and judgment passed by the Tribunal, the State of West Bengal and Superintendent of Police, Bankura moved the High Court in writ petition No. WPST No.183 of 2010, which was dismissed by the Court vide its judgment and order dared 29th April, 2010 refusing to interfere with the order of the Tribunal. As a result, the Petitioner was reinstated in service without back wages.
12. It appears that thereafter final order dated 04.08.2010 was passed in disciplinary proceedings no.2 of 1999, after the Petitioner had joined the work pursuant to the order of the Tribunal. A revised order was passed wherein he was awarded punishment for those charges enumerated with regard to unauthorised absence of one day from duties ie., on 08.03,1993 p.m. to 09.03.1993 p.m. and for suppression of material facts. He has been, in fact, by the final order awarded the punishment of reduction to minimum basic pay of his Grade ie., `9600/- including Grade Pay from the existing pay of `11,180/- including Grade Pay.
13. This punishment order, on culmination of the departmental proceedings, was challenged by him in OA No.405 of 2011 before the Tribunal.
14. By its order dated 09.09.2011, the Tribunal directed the appellate authority to accept the appeal, if already filed, by condoning the delay in filing the same and to dispose of the same within four months from the communication of the order after hearing the petitioner in person. Accordingly, the writ petitioner moved a 6 representation to the Superintendent of Police, Bankura on 03.01.2012 praying for promotion as ASI on the ground that his juniors have been granted promotion but his representation remained unactioned. However, the appellate authority, after hearing the matter on 28.02.2012, held that the Petitioner had been unauthorisedly absent from 08.03.99 PM to 09.03.99 PM amongst other charges.
15. This order was challenged by the Petitioner in W.P. No. 35506 (W) of 2013 in which the order dated 20th December, 2013 was passed, quoted below:
"The petitioner complains of the petitioner's appeal under Section 19(3) of the Right to Information Act, 2005 not being disposed of within a reasonable time by the State Information Commission.
The State Information Compassion is requested to ensure that the said appeal is disposed of as expeditiously as the business of the Commission would permit and, preferably, within a period of two months from date. The Commission should not grant any unnecessary adjournment to any of the parties.
W.P. No.35506 (W) of 2013 is disposed of without any order as to costs."
16. Since there was no action taken by the Respondents Authorities, the Petitioner filed OA-777 of 2014 before the Tribunal praying for the following reliefs:
"(a) Direction upon the respondents to consider the arrear payment with effect from the date of joining after the Hon'ble High Court's order and also to direct the authority to give actual salary with effect from the date of joining.
(b) An ad-interim order directing the respondent No.3, to restrain not to deduct salary from his actual pay till the final disposal of this application."
17. He also moved an application praying for the following reliefs:
"(i) Communication of the order dated 16.11.2011 of O.A. No. 405 of 2011 made by the petitioner to the respondents praying for asking the salary deduction of the 7 pay scale as per month without any reason but the respondents does not give any effect to the said communication.
(ii) Against ignoring the said communication and silence against applicant's grievance and legitimate expectation of the actual payment like others is not considering to your applicant's appeal dated 3-01-12 your applicant is not getting actual payment of salary as such this application is made.
(iii) Applicant made representation for promotion on 3-1-12 as juniors go the promotion as A.S.I.
(iv) Applicant wrote the communication of RTI Act regarding payment of actual arrear payment made by the authority but here is discrepancy"
18. The Petitioner also moved the Tribunal in OA-777 of 2014 pleading inter alia that the order of dismissal passed by the appellate authority was quashed by the Tribunal vide its order dated 15/12/2009 in OA-6647 of 2007 directing the Respondents to reinstate him. As such, he is entitled to all arrears of salary and/or full pay and allowances for the period as per Rule 72A(3) of the West Bengal Service Rules (Part-I) which reads as follows:
"If the dismissal, removal or compulsory retirement of Government employee is set aside by the court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension proceeding such dismissal, removal of compulsory retirement, as the case may be, and the date of reinstatement shall be treated as duty for all purposes and he shall be paid the full pay and allowance for the period."
19. The Petitioner, after receiving the revised order of punishment, preferred a statutory appeal before the appellate authority, which has not been decided in spite of the order of the Tribunal, to the appellate authority for deciding the 8 same within four months from the date of the order ie. 09.09.2011 in OA-405 of 2011.
20. OA-777 of 2014 was decided by the Tribunal vide its judgment and order dated 22.04.2015, passed by the Tribunal that there is no scope for entertainment of application in view of its earlier decision which was affirmed by the High Court. The order of the Tribunal reads:
"In the background of the facts and circumstances above, the petitioner cannot claim arrear payment with effect from the date of his dismissal to the date of his reinstatement in view of the clear order dated 15.12.2009 in O.A. 6647 of 207, which has been affirmed by the Hon'ble High Court. For the same reason, this Tribunal cannot also interfere with the reduction of his pay arising out of the imposition of penalty on him in pursuance of the order of the Tribunal.
We, therefore, find that there is no scope to entertain this application in view of the earlier decision of this Tribunal duly affirmed by the Hon'ble High Court.
Accordingly, we dismiss this application at the state of admission."
21. The order impugned dated 22.4.2015 of the Tribunal in OA-777 of 2014 is assailed on the ground that the Tribunal has failed to consider the actual grievance of the Petitioner for payment of salary and promotion in view of acquittal of the Petitioner by the Additional Sessions Judge, 1st Court at Bankura. As such, he was entitled to arrears of salary, promotion as per seniority and corresponding salary having been reinstated in service.
22. The contention of the learned Counsel for the Petitioner is that the Petitioner is deprived from getting salary as his case was not placed or argued properly by the 9 Counsel; that he was also not properly advised and that the authority could not sit tight over the matter of his promotion to the post of ASI, which is still pending or sit tight over the petitioner's appeal which is pending, preferred by him against his revised order of punishment in spite of the fact that there was a direction upon the appellate authority to decide the same within four months from the communication of the order dated 9.9.2011 passed by the Tribunal in OA-405 of 2011.
23. He also contended that the Petitioner had at no time informed the authorities about his absence and he had surrendered before the Court on 10th March, 1999 and was in jail for one month and ten days after which he was bailed out.
24. Learned Counsel for the Petitioner further submitted that the punishment of the Petitioner is highly disproportionate to the charge.
25. It is lastly argued that the Petitioner cannot be deprived of his arrears of salary, as per Rule, as it was not due to any fault of his that he had been falsely implicated in the criminal case and that after acquittal from the criminal case he was entitled for the same.
26. To substantiate his points he relied on the following rulings:
1. State of Madhya Pradesh and Others Vs. Hazarilal, reported in (2008)3 SCC 273;
2. S. R. Tewari Vs. Union of India and Another, reported in (2013) 6 SCC 602;
3. Umesh Kumar Sinha Vs. State of Bihar and Others, reported in (2010) 6 SCC 718;
4. State of Gujarat Vs. Anand Acharya alias Bharat Kumar Sadhu, reported in (2007) 9 SCC 310 and
5. Rajasthan Tourism Development Corporation Limited and Another Vs. Jai Singh Chauhan, reported in (2011) 13 SCC 541.10
27. Learned Counsel for the State-Respondents submits that from the orders passed by the disciplinary authority as well as the appellate authority, it is apparent that the Petitioner had gone on unauthorised absence from 08.3.99 (PM) to 9.3.99 (PM); which is crystal clear from the reply of the Petitioner. It is revealed from the reply that while the Petitioner had taken command to get himself treated for sickness that he had left his place of posting without any information or order sanctioning him leave or permission of the authority concerned, on receiving some alleged information that his family was involved in criminal case. Counsel for the State-Respondents would argue that the first and foremost obligation of the Petitioner as a member of the disciplined Police Force was to have informed his superior authorities about any matter which had compelled him to leave the place of his posting. It is an admitted fact that the Petitioner had received information when he had taken command for treatment of his sickness. Hence, he had ample opportunity to inform the superior authorities about the compelling circumstances in which he had been implicated in the criminal case and to surrender before the Court. Therefore, his plea that he had no opportunity to inform the authorities, is unbelievable.
28. As regards the question of punishment being highly disproportionate to the charge is concerned, it is vehemently argued that the Petitioner was not only charged for one day's unauthorised absence in the disciplinary enquiry but also for his involvement in the criminal case during his unauthorised absence from the command. It is apparent that the authorities had taken much lenient view in 11 reinstating him; otherwise such a conduct of a member of the disciplined force would demand not less than dismissal or removal from the service.
29. We have heard the learned Counsel and perused the record. We find that the Petitioner had acted in contravention of the rules and regulations of the disciplined Police Force. He was a constable and left his place of posting without any permission and information during his treatment in the hospital, of his whereabouts to his superior authorities. The criminal case was registered by his relatives implicating him appears to have been compromised, as one of the prosecution witnesses ie., PW 1, had stated that the Petitioner was not present at the relevant time. We do not know whether the Petitioner was present or not at the relevant time. In any case, it is well-settled law that the criminal case as well as the disciplinary proceedings can simultaneously be proceeded with particularly when the charges in the two are different. The Petitioner was being prosecuted in Sessions Trial No.1(7)2003 whereas he was also being proceeded under the disciplinary proceeding for the charge of remaining absent and other charges of involving himself in criminal act.
30. The rulings, which the learned Counsel for the Petitioner has relied upon are wherein it has been held that where the punishment is shockingly disproportionate to the charge, the Court can interfere in the matter and pass appropriate orders. The cases cited are not applicable in the facts and circumstances of the case, as we have already indicated that the lenient view has been taken by the authority even though the conduct of the Petitioner as member of a disciplined force warranted no lesser punishment than removal of 12 service, for involving himself in criminal case by leaving his place of posting without permission and information to the authorities which is a major misconduct. Moreover, the cases cited by the Counsel for the Petitioner are distinguishable on facts.
31. For all the reasons stated above, the petition is dismissed.
32. Photostat certified copy of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all necessary formalities.
(Rakesh Tiwari, J.) (Nishita Mhatre, J.)