Calcutta High Court (Appellete Side)
Anupam Sengupta vs The Hon'Ble High Court At Calcutta And ... on 20 March, 2019
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Sambuddha Chakrabarti
W. P. No. 4266 (W) of 2018
Anupam Sengupta
Vs.
The Hon'ble High Court at Calcutta and Others.
For the petitioner : Mr. Arunava Ghosh, Advocate
Mr. Soumya Majumder, Advocate
Mr. Chandrachur Chatterjee, Advocate
Ms. Anjana Banerjee, Advocate
For the High Court : Mr. Kallol Bose, Advocate
Administration Mr. Siddhartha Banerjee, Advocate
Heard on : 17.05.2018, 17.07.2018, 25.07.2018,
02.08.2018, 19.09.2018, 27.09.2018,
11.01.2019.
Judgement on : 20.03.2019
Sambuddha Chakrabarti, J.:
The petitioner was an Upper Division Clerk in the Central Copying Section of the High Court at Calcutta. He was implicated in a criminal case under various provisions of the Indian Penal Code. He was arrested on May 5, 2011 and was released on bail on July 7, 2011.
The case of the petitioner is that after being released on bail when he went to join his office he was informed that he had been suspended. He had never received any order of suspension from the respondents. On April 30, 2011, he submitted a representation to the Registrar General, High Court, Calcutta for promotion to the post of Superintendent as the allegation made against him was not connected with his duty. Subsequently also he made several representations with the same prayer.
In the criminal trial that followed he was acquitted by a judgment, dated August 29, 2017 passed by the learned Additional District and Sessions Judge, 4th Court, Barasat.
He then made representations to the Registrar General, High Court, Calcutta on September 5, 2017, September 16, 2017 and October 31, 2017 praying for revocation of suspension and allowing him to resume his duties by giving effect to promotion, entire notional benefits and arrears of salary with effect from the date of suspension. The authorities, however, kept silent on all such occasions. The petitioner, thereafter, made a representation through his learned advocate on January 16, 2018.
It is the further case of the petitioner that he made an application under Section 6 of the Right to Information Act for providing him copies of the relevant pages regarding the action taken by the authority in respect of his representation, dated September 5, 2017. This time also the respondents remained silent and the petitioner preferred an appeal before the appellate authority on November 29, 2017. Now the Deputy Registrar (Administration) and the Public Information Officer gave a reply informing him that the desired information could not be provided as the matter was under process.
The petitioner has variously criticized the action of the respondents as arbitrary, vindictive and violative of his fundamental rights.
By this writ petition, the petitioner has inter alia prayed for a writ in the nature of mandamus directing the respondents to allow the petitioner to join his duties and to give promotional benefits with effect from the date of suspension with all arrear salaries and for other reliefs.
This writ petition was moved on May 17, 2018. Liberty was granted to the respondents to file affidavit-in-opposition within two weeks after reopening of the Court after the summer vacation.
On July 17, 2018 when the matter was next taken up no such affidavit was filed by the respondents. Mr. Banerjee, the learned advocate for the High Court, Administration, had placed before me the official records including the Lay Note and submitted that the draft affidavit was placed before the concerned Hon'ble Judge for vetting. The Hon'ble Judge had verbally instructed Mr. Banerjee that no affidavit would be used and whatever order would be passed in the writ petition, the High Court shall abide by it. He further submitted that he had been instructed to draw the attention of the Court to the Lay Note used by the then Registrar General and the order passed by the Hon'ble Chief Justice.
In course of examination of the official records it appeared to me from the Lay Note that the de facto complainant of the criminal case was granted leave to file an appeal on December 1, 2017. I directed the Registrar General to file an affidavit specifically disclosing how the High Court administration came to know of the appeal filed by the de facto complainant as they are not supposed to be in the know of all appeals filed in this Court. The affidavit was further required to disclose why the representations of the petitioner the first of which was made on September 5, 2017, was not replied to.
Pursuant to the said order a supplementary affidavit was filed on August 2, 2018.
The Registrar General as the deponent of the affidavit stated that on receipt of the representation of the writ petitioner on September 5, 2017 and September 16, 2017, the concerned Section Officer, High Court, enquired from the Assistant Registrar General (Listing) whether any appeal had been preferred from any judgment and order, dated August 29, 2017. The Section Officer also enquired from the Assistant Registrar (Listing) whether any order had been passed on such appeal. Such enquiry was made by the concerned Section Officer on October 24, 2017 as per the directions of the Deputy Registrar (Administration). The Assistant Registrar (Listing) informed that an application bearing CMR (SPL) No. 127 of 2017 had been filed by the de facto complainant seeking leave to prefer an appeal from the judgment and order of acquittal passed on August 29, 2017.
On October 30, 2017 the concerned Section Officer enquired from the criminal section whether any order had been passed on the application of the de facto complainant to which the criminal section returned an answer in the negative.
The supplementary affidavit further records that on receipt of the representation dated January 16, 2018, the then Registrar General, High Court, Calcutta, directed the concerned department to furnish details of the application of the de facto complainant and in compliance with such direction the Section Officer was required to furnish necessary particulars. The Section Officer gave a note to the appropriate authority that on December 1, 2017, the application had been allowed and an appeal being CRA 3 of 2018 had been filed by the de facto complainant. Then the Registrar General, High Court, Calcutta laid the matter before the Hon'ble Acting Chief Justice on March 26, 2018 seeking necessary directions. Upon considering the relevant factors the Hon'ble Acting Chief Justice directed the concerned department to wait till the disposal of the present writ petition or the disposal of the Criminal appeal whichever was earlier. The Registrar General stated that the Administration took requisite measures immediately on receipt of the representations of the writ petitioner. The Registrar General submitted that with the grant of leave by the Hon'ble Court on December 1, 2017, the matter had become sub-judice and in such circumstances, there was no occasion for the Administration to readily accede to the request made by the writ petitioner by his representation.
Howsoever the administration of the High Court through the affidavit of the then Registrar General might claim that it was not sitting idle after receiving the representations from the petitioner and had taken immediate measures the facts state otherwise. Much unsubstantiated assertion to the contrary, it is not understood why after receiving the representation on September 5, 2017 the concerned Section Officer made the enquiry as late as on October 24, 2017. If the concerned criminal section informed that no order had been passed on the application of the de facto complainant when the third representation of the petitioner was received, dated October 31, 2017, there is certainly a sizeable time gap before the then learned Registrar General directed the concerned department to furnish details of the application on January 16, 2017. It is also not understood why the then learned Registrar General laid the matter before the Hon'ble Acting Chief Justice on March 26, 2018. Thus, between the making of the first representation by the petitioner and the Lay Note of the then Registrar General more than six and a half months elapsed. For the movement of file and getting information about the filing of an application by the de facto complainant this was an unusually, if not unseemly, long time which should not make the administration feel very proud of its performance.
I have perused the Lay Note of the then Registrar General. There is a discernable flaw in the last paragraph when she placed the whole matter before the Acting Chief Justice to pass an order whether:
A. "Sri Anupam Sengupta may be reinstated in service on the basis of his prayer dated 05.09.2017 or, B. Office shall wait till the disposal of the writ petitioner being W.P. No. 4266 (W) of 2018 filed by Sri Anupam Sengupta, or, C. Office shall wait the outcome of the Criminal Appeal being CRA No. 03 of 2018 filed by the defacto complainant, or, D. Any other order(s) as Your Lordship may deem fit and proper." Amongst the four alternatives suggested the first and the last i.e. A and D did not pose any problem. It is the B and C which were really ambiguous. If the administration wanted to know whether the office would wait till the disposal of the writ petition or till the outcome of the criminal appeal filed by the de facto complainant, the Lay Note failed to mention about the fate of the writ petitioner on the disposal of either. Will he be allowed to join with the disposal of either of them irrespective of the result?
Equally ambiguous was the opinion expressed by the Hon'ble Acting Chief Justice when he endorsed "B or C whichever will be decided earlier".
Here also the uncertain consequence is unavoidable. The note of the Hon'ble Acting Chief Justice does not take care of the result in the eventuality of 'B' or 'C' being decided earlier. Does it mean that the suspension of the petitioner would be revoked even if the writ petition is dismissed or the criminal appeal is allowed? Conversely, was it in the opinion of the Hon'ble Acting Chief Justice that if the writ petition is allowed or the criminal appeal is dismissed the petitioner would be allowed to resume his duties? Nothing specific can be culled out from either the Lay Note of the then Registrar General or the endorsement of the Hon'ble Acting Chief Justice. The whole exercise leaves an issue entirely unanswered: why should the petitioner have to wait till the outcome of the writ petition or the appeal?
This assumes more importance in view of the very specific provision contained in clause 16A of the Calcutta High Court Service Rules, 1960 which inter alia says that the Chief Justice or the Registrar, Appellate Side or Original Side may place a member of the High Court service under suspension where the case against him in respect of any criminal offence is under investigation or trial. It appears that neither the Lay Note nor the opinion of the Hon'ble Acting Chief Justice did address itself to this relevant provision of the Service Rules. While passing the order the High Court administration did not consider the contingencies under which a member of the High Court service could be continued to be under suspension when the case against him was neither under investigation nor trial.
The response of the learned Advocates for the High Court Administration was that since an appeal is a continuation of the trial, the suspension of the petitioner could not be revoked. Mr. Bose, the learned Advocates appearing for the High Court administration on various dates submitted the same variously. Mr. Bose failed to address the issue when he argued on the standard of proof, assessment of evidence in an appeal from acquittal which is obviously the same as in the case of an appeal from a conviction. That, however, does not place the two appeals on the same jurisprudential podium.
That apart, this stand not having found its place in the Lay Note or the opinion expressed by the Hon'ble Acting Chief Justice was a submission made at the hearing of the writ petition de hors any foundation in the records relating to the revocation of the suspension of the petitioner. Records do not in any manner suggest that this consideration weighed with the authorities.
In this connection, it cannot be glossed over that one has to draw a distinction between an appeal from conviction and an appeal from acquittal. In the first case, the accused would have filed an appeal and in the second either prosecution or the de facto complainant files the appeal. Thus, an appeal from a judgment and order of acquittal stands on a different footing from an appeal against conviction and sentence as the accused in the first classes of cases have been adjudged innocent. The importance of the judgment of acquittal after a criminal trial has been stated very clearly in the case of Ghuruy Lal vs. State Of Uttar Pradesh, reported in (2008) 10 SCC 450, where the Supreme Court observed that an accused is presumed innocent until proved guilty. The trial court's acquittal bolsters the presumption that he is innocent. Presumptions of innocence in favour of the accused gets reinforced, reaffirmed and strengthened by the acquittal of the trial court. Due or proper weight and consideration must be given to the trial court's decision.
In the case of an appeal from an order of conviction and sentence on the other hand, that appellant is adjudged guilty by the trial court and there is no presumption of innocence in his favour. But in a case like the present one there was not only a presumption of innocence in favour of the writ petitioner at the outset, it has been bolstered by his acquittal at the trial. The scope of interference is also very different in an appeal from an order of acquittal. In the case of Dilawar Singh and Others vs. State of Haryana, reported in (2015) 1 SCC 737, the Supreme Court reiterated that a court of appeal would not ordinarily interfere with the order of acquittal unless the approach is vitiated by manifest illegality. In an appeal against acquittal courts will not interfere with an order of acquittal, merely because on an evaluation of evidence a different plausible view may arise and views taken by the court below are not correct. In other words, appellate court must come to a conclusion that the views taken by the learned court below while acquitting cannot be the views of a reasonable person on the material on record.
The difference between the two appeals - one from conviction and the other acquittal has also been variously explained in different judgments. In Chandrappa vs. State of Karnataka, reported in (2007) 4 SCC 415, the Supreme Court laid down that in case of acquittal there is double presumption in favour of the accused. First, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal the presumption of his innocence is further reaffirmed and strengthened by the trial court.
In Shri Surindar Kumar Vs. State of Himachal Pradesh, reported in 1985 (3) SLR 254, while considering the effect of acquittal in a criminal case, the Division Bench of Himachal Pradesh, High Court observed that preferring an appeal against an order of acquittal cannot be regarded as the continuance of trial. The trial had concluded with the judgment of acquittal. The initial presumption of innocence must, therefore, be regarded as doubly reinforced by order of acquittal passed in favour of the petitioner. It was further observed that continued operation of the order of suspension from the date of acquittal cannot be regarded as reasonable fair and just. If the appeal against acquittal is allowed and the petitioner is convicted there is nothing to prevent the competent authority from dealing with the petitioner in accordance with law. If, on the other hand, the appeal fails and a departmental enquiry, even if is ordered to be instituted on the same charges, it would not be fair and just and reasonable to suspend the petitioner once again in view of the initial presumption of innocence having been reinforced twice over.
In the State of West Bengal Vs. Hari Ramalu, reported in 2000(3) LLN 638, the question that came up for consideration before the Division Bench was whether in view of the pendency of the appeal a certain rule of All India Services (Discipline and Appeal) Rules, 1969 which states that a member of the service in respect of or against whom an investigation, enquiry or trial relating to a criminal charge was pending might at the discretion of the Government be placed under suspension until the termination of all proceedings relating to that charge, would be applicable. The Division Bench held that continuation of the proceedings must relate to investigation, enquiry or trial and such investigation, enquiry or trial, if any, have come to an end with the judgment of acquittal. The stand that the same was continuing in that case only on the ground that an appeal was pending, was found to be misconceived. The Division Bench specifically observed that Rule (3) of the said Rules would be operative only in the case when an investigation, enquiry or trial remains pending and not when the employee is acquitted. The Division Bench of the Calcutta High Court further held that the submission that pendency of appeal against acquittal will amount to continuation of proceedings cannot be accepted. Continuation of the proceedings must relate to investigation, enquiry or trial and this must have come to an end with the judgment of acquittal.
A Division Bench of the Madras High Court in the judgment and order dated August 27, 2015 passed in the case of S. Rajagopal Vs. The Registrar and Others, (Writ Petition No. 18949 of 2014) had also occasion to consider this issue, though in the context of the Pension Rules. However, the Division Bench observed that the department has got a right to file an appeal but it cannot be said that the judicial proceedings have not been concluded. Once the criminal court acquits the accused it must amount to be the conclusion of the judicial proceedings in the first instance.
This appears to be the persistent view of various High Courts whenever any such question came up for consideration before them. In the Judgment and order dated April 7, 1983 passed in the case of State and Another Vs. B. C. Dwivedi, reported in (1983) 2 GLR 1315, before a Division Bench of the Gujarat High Court an argument as has been made in the present case was also submitted. Rejecting the contention of the appellant, the Division Bench held that the concept of trial in criminal law has a well- recognized connotation and the trial would mean all proceedings including sentence as observed in B.R. Lawrence Vs. Emperor. Merely because the acquittal appeal has been preferred, it cannot be said that the trial is continuing.
The judgments and the orders referred to above squarely apply to the facts of the present case. That jurisprudentially an appeal from an order of acquittal stands on a different ground has been too well-recognized to need any further authority. Mr. Bose tried to impress upon the Court that at the stage of hearing the examination of deposition of various witnesses, standard and onus of proof would be more or less the same as in the case of an appeal from a conviction. That is only but natural. At the stage of hearing, the yardstick of disposal of the appeal will be no different but that does not obliterate or obfuscate the basic difference between an appeal from a conviction and an appeal from an acquittal.
It has already been found that the High Court had taken an enormous time to decide over the representation filed by the writ petitioner. It is one thing to say that the High Court did not act promptly. It is another thing to find that the High Court did not wish to act. In the present case, I find the disinclination to act on the part of the respondent administration is writ large from their conduct.
Apart from not responding promptly to the representation of their own staff, when the petitioner made an application on September 16, 2017 under the Right to Information Act seeking certain documents relating to the fate of his administration the authority initially did not answer compelling the petitioner to make an appeal to the appellate authority. That appeal was received by the concerned department on November 29, 2017 and surprisingly by a letter of the even date the Public Information Officer informed the petitioner that no information could be divulged since the matter was under process.
One might legitimately wonder why should not the information sought by the writ petitioner be divulged. All that he wanted to know in substance was about the steps taken by the respondents on his representations. Even this small information the High Court declined to pass. If that be the approach we have further to answer a far more important issue about how we can preach the importance of disclosure of information under the Right to Information Act referring to the lofty principles behind it, when we follow the same practice and exhibit the same disinclination and apathy like some other public authorities treading the same line. That apart, it has not been mentioned in the reply which was under process at the relevant point of time. We have already seen that till November 29, 2017 nothing substantial was done with the successive representations of the petitioner. The supplementary affidavit of the then Registrar (Administration) does not throw any significant light about any progress worth the name being made till that date.
For the reasons aforesaid, I am of the view that the continuance of the order of suspension of the petitioner has no legal validity and he should be allowed to join his duties within three days from the date of communication of the order to the appropriate authority after revoking the order of suspension with effect from the date of judgment and acquittal in the criminal case by the learned Trial Judge. The petitioner will not get the promotional benefit for the present, but will be entitled to the same subject to the result of the appeal, if he is otherwise entitled to it. The arrears of pay of the petitioner from the date of revocation of suspension till the actual date of his joining upon adjustment of the subsistence allowance paid to him, shall be paid by the respondents to the petitioner positively within a period of four weeks.
With the directions as above, the writ petition is allowed. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.
(Sambuddha Chakrabarti, J.) Later:
After I delivered the judgment in court, Mr. Banerjee, the learned Advocate appearing for the High Court administration, made a prayer for stay of the operation of the judgment and order.
The prayer should be rejected on two grounds. First, it has been the persistent stand and submission of Mr. Banerjee in court that the High Court administration has not used any affidavit despite a draft being prepared by them, as the High Court had decided to allow the petitioner to resume his duties if the court so directs. In that background seeking a stay of the operation of the order is a very unusual prayer. Secondly, I have already indicated very elaborately in my judgment why I consider the continuance of suspension of the petitioner during the pendency of the appeal at the instance of the de-facto complainant is bad and not in accordance with law.
For the reasons stated above, the prayer of Mr. Banerjee is heard, considered and rejected.
(Sambuddha Chakrabarti, J.) S. Banerjee