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Calcutta High Court (Appellete Side)

C/382 Bikash Kumar Ghosh & 2 Ors vs State Of West Bengal And Ors on 8 September, 2011

Author: Ashim Kumar Banerjee

Bench: Ashim Kumar Banerjee

                                         1


                  IN THE HIGH COURT AT CALCUTTA
                     Constitutional Writ Jurisdiction
                                   Appellate Side

Present   :

The Hon'ble Justice Ashim Kumar Banerjee
                   -And-
The Hon'ble Justice Dr. Mrinal Kanti Chaudhuri


                              W.P.S.T. 335 of 2009
                        C/382 Bikash Kumar Ghosh & 2 Ors.
                                     -Versus-
                           State of West Bengal and Ors.

For Petitioners          :      Mr. Swapan Kumar Nandy.

For Respondents          :      Mrs. Chaitali Bhattacharjee.

Judgment on :- September 08, 2011 The petitioners were constables attached to Howrah G.R.P. They were chargesheeted for an offence committed by them while they were attached to Belur E.F. Line. As per the chargesheet while they were detailed for the Train Guard duty in 3009 Up Doon Express from Howrah to Dhanbad and Down 2312 Kalka Mail from Dhanbad to Howrah, they entered into the sleeper class compartment and challenged one passenger, namely Jagadish Singh, a member of Bihar Military Police Force. The delinquents demanded Rs.500/- and on being refused to pay, they forcibly detrained the passenger causing him hindrance in having safe journey. They also robbed of Rs.5,000/- from the possession of the complainant, Sri Jagadish Singh. A criminal case was also initiated simultaneously. The delinquents, however, got an acquittal from the Criminal Court, as we find from the judgment and order of the Criminal Court appearing at page 64 - 67 of the petition. The relevant extract of the Criminal Court judgment is as under :-

"Practically in spite of repeated summons and best effort from the side of the prosecution, the de-facto complainant who was posted at Bihar Military Police did not turn up."

The learned Additional Sessions Judge, Fourth Court, Howrah gave an acquittal to the delinquents for want of evidence. The Petitioners were proceeded with departmentally and the disciplinary authority agreeing with the finding of the enquiry officer, dismissed them from service. They preferred appeal. The Appellate Authority reduced the punishment to the following effect:-

"I set aside the order of dismissal of SRP and order for reduction of pay by five increments for a period of five years."

Being aggrieved by the order of the disciplinary authority so merged in the order of the Appellate Authority, the petitioners approached this Court by filing the above petition being W.P.S.T. No.335 of 2009.

Mr. Swapan Kumar Nandy, learned counsel for the petitioners, contends before us that as per the Police Regulation, the reduction could be either in rank or in scale. There could not be any reduction of pay that too, by five increments. On merits, Mr. Nandy contends that when the petitioners got honourable acquittal from the Criminal Court, the disciplinary authority was not entitled to hold it otherwise as the order of the Criminal Court would have a binding effect on the disciplinary proceeding. The Tribunal negated both the contentions. According to the Tribunal, the decision in the case of G. M. Tank Vs. the State of Gujrat and ors. reported in 2006 Supreme Court Cases (Labour and Service) 1121, would not be applicable in the instant case. According to the Tribunal, the ratio decided by the Apex Court on the issue is that the Criminal Court judgment would have a binding effect, provided the witnesses before the Criminal Court and the disciplinary proceedings were common.

In the instant case, the de-facto complainant did not appear before the Criminal Court. Hence, the Criminal Court, in absence of evidence, was compelled to release the accused being the delinquents whereas in the disciplinary proceeding the enquiry officer, upon considering the evidence on record both orally and documentary, came to conclusion that the delinquents were guilty of the offence. The disciplinary authority agreed with such findings and imposed the punishment; that was reduced by the Appellate Authority. Hence, there could be no scope for interference.

We are in full agreement with the Tribunal on the issue of finding of guilt. We also approve of the ultimate decision of the Tribunal rejecting the contentions raised by the petitioners. In our view, the two proceedings could be simultaneously proceeded with as the degree of proof in a Criminal Case could not be equated with the degree of proof in a departmental proceeding. The authority dispassionately acted as we find from the chronological events, particularly when the Appellate Authority reduced the punishment. The Appellate Authority also gave reasons for such reduction. We only clarify that the punishment as imposed by the Appellate Authority would mean that the delinquents would be deprived of five consecutive increments for a period of five years without having any cumulative effect.

With such clarification, the judgment and order of the Tribunal is affirmed.

W.P.S.T. No. 335 of 2009 is disposed of.

There would be no order as to costs.

Urgent xerox certified copy of this order, if applied for, be given to the parties, on priority basis.

( Banerjee, J.) ( Dr. Mrinal Kanti Chaudhuri, J.) ns