Calcutta High Court (Appellete Side)
(Sws.M/ vs S. Banerjee) on 22 May, 2023
Author: Abhijit Gangopadhyay
Bench: Abhijit Gangopadhyay
Court No. 08 MAT 909 of 2023
with
22.05.2023 CAN 1 of 2023
(SL 1)
State of West Bengal
(Sws.M/
Vs.
S. Banerjee)
Soumen Nandy & Ors.
Mr. Joydeep Kar, Sr. Advocate
Mr. Sirsanya Bandopadhyay
Mr. Arka Kumar Nag
... for the appellant/State
Mr. Bikash Ranjan Bhattacharya, Sr. Advocate
Mr. Firdous Samim
Ms. Gopa Biswas
Ms. Purba Mukherjee
Ms. Sampriti Saha
... for the respondents/writ petitioners
Mr. Amajit De Mr. Arijit Majumder ... for the CBI Mr. Dhiraj Trivedi Mr. Samrat Goswami ... for the ED Mr. Saikat Banerjee ... for the WBBPE/ respondent Nos. 4 to 6 The instant mandamus appeal is at the instance of the State of West Bengal.
The Preamble of the Memorandum of Appeal says that the appellant being aggrieved by and/or dissatisfied by the order dated April 21, 2023 passed by the Hon'ble Justice Abhijit Gangopadhyay, modified order dated May 12, 2023 passed by the Hon'ble Justice Amrita Sinha, in the Writ Petition, being W.P.A. No. 9979 of 2022(Soumen Nandy vs. State of West Bengal & others) has preferred the present appeal. 2 Mr. Joydeep Kar, learned senior counsel for the appellant submits that though the said Preamble has been couched in the said manner but the challenge of the appellant is against the order dated April 21, 2023 passed by the Hon'ble Justice Abhijit Gangopadhyay.
The respondent no. 1 filed the writ petition being W.P.A. No. 9979 of 2022 alleging inter alia that the Teacher Eligibility Test (TET), 2014 is the biggest scam of the education department of the Government of West Bengal and prayed investigation into the said scam by the Central Bureau of Investigation(CBI).
The investigation by the CBI was ordered in the said writ petition, the investigation is going on. The Enforcement Directorate was also ordered to investigate the said alleged scam.
The Enforcement Directorate (hereinafter referred to as the 'ED', in short) though is not a party but filed an application being CAN 02 of 2023 in the said writ petition with the following allegation at paragraph 4 of the said application:-
"That during investigation in respect of Primary Teachers Recruitment Scam under PMLA, 2002 searches were carried out at various premises linked to one Shri Ayan Sil and Others on 19/20.03.2023. During the course of search, several incriminating documents along with digital evidences were recovered and seized from the possession of Shri Ayan Sil. The scrutiny of the incriminating documents has revealed that the scam is not only limited to recruitment of the teachers but also covers several other appointments by the various municipalities. It has been noticed that 3 several persons including Shri Ayan Sil, other agents, intermediaries etc. have obtained the bribe money/ illegal money/ illegal considerations both in respect of illegal recruitment of teaching and non-teaching staff in the education sector as well as for securing various employments in various municipalities and even the proceeds of crime of Teachers recruitment scam and the Municipality Recruitment Scam have got intermingled on account of common agents like Shri Ayan Sil and common beneficiaries and the fact that the victim in both the cases is same i.e., "public/common people at large" a separate FIR for investigation of Municipality Recruitment Scam under the relevant provisions of IPC and PC Act by the predicate agency would be required by the predicate agency would be required. On account of intermingling of the proceeds of crime of teachers recruitment scam and municipality recruitment scam and the fact that CBI is investigating the teachers recruitment scam, the ED has shared detailed information with the CBI under the provisions of Section 66 of the Prevention of Money Laundering Act, 2002 with a request to investigate the predicate offence of municipality recruitment scam as well."
[sic] The ED by the said application, prayed the following order:-
In these circumstances your Applicant humbly prays that your Lordship may graciously be pleased to take on record the brief of the investigation and pass appropriate orders in this regard and/or to pass such other or further order or orders and/or direction or directions as your Lordship may deem fit and proper.
The ED filed a status report on the investigation conducted in primary teachers recruitment scam before the learned Single Judge.
The learned Single Judge upon consideration of the said report held that facts revealed during 4 investigation of "teachers recruitment scam", the detailed information has already been shared with the CBI, Headquarters under the provisions of section 66(2) of the Prevention of Money Laundering Act, 2002 for further necessary action to investigate the predicate offence of corruption, cheating etc. involved in this very serious case of large public interest, i.e., "Municipality Recruitment Scam" in the state of West Bengal."
The State of West Bengal challenged the aforesaid order dated April 21, 2023 in Special Leave to Appeal (C) No. 8706 of 2023 inter alia on the grounds that the said order was passed without affording opportunity to the concerned advocate or to the concerned Department for appropriate action to contest the said application.
The said Special Leave Petition was disposed of by the order dated April 28, 2023 inter alia with the following order:-
"..
5. In the interests of justice, we are of the view that it would be appropriate if the State of West Bengal is heard afresh by the High Court on the issue as to "CBI"
whether the investigation should be initiated by the CBI. We accordingly permit the petitioner to move a petition by way of review before the High Court. The High Court shall, after hearing the parties, take a considered view in the matter.
..."
The appellant thereafter took out an application (RVW 83 of 2023) seeking review of the said order dated April 21, 2023.
5
The Hon'ble Justice Amrita Sinha, by the judgment and order dated May 12, 2023 dismissed the said application for review thereby affirmed the said order dated April 21, 2023.
Mr. Kar submits that the order impugned is wholly without jurisdiction inasmuch as on the day when the impugned order was passed, the learned Single Judge had no determination relating to municipality, besides, the said order was passed without affording any opportunity to the State or its concerned departments to contest the said application.
He presses for an ad interim order of stay of the ongoing investigation.
Mr. Bikash Ranjan Bhattacharya, learned advocate for the respondent no. 1 strongly raises issue of maintainability of the appeal. He submits that the link between the teacher recruitment scam and the recruitment in the municipalities has been established as such, all the recruitment scams of like nature must be brought under the investigation of common agencies.
The learned counsel for the ED and the Central Bureau of Investigation submits that the investigation is at a very nascent stage, any order of stay shall affect the ongoing investigation.
We have heard the learned counsel for the parties and have perused the materials-on-record. 6
We are informed by the learned counsel for the ED that his client has gathered sufficient materials to link the two scams and can produce those materials before the Court, if necessary.
We find that except the status report from the ED, no other materials were produced before the learned Single Judge to link the said two scams. The said materials need to be looked into before arresting further progress of the ongoing investigation, particularly when, the investigation is at a preliminary stage.
That apart, the grounds on which the order impugned is assailed in the present appeal are similar to the grounds on which the review of the said order was sought for, in the absence of challenge to the order dismissing the said application for review, the effect of the findings returned by the learned Single Judge while dismissing the application for review, on the maintainability of the appeal needs to be looked into.
We direct the ED to produce materials in support of the allegation made in paragraph 4 of its application on the next date of hearing.
The maintainability of the appeal as urged by Bhattacharya, is kept open.
List the appeal and the application before the regular bench having determination on June 06, 2023. 7
Though we have refused to grant any interim relief at this stage, but we grant liberty to the appellant to apply for such relief, if occasion so arises.
Parties to act on the server copy of this order duly downloaded from the official website of this court.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Apurba Sinha Ray, J.) (Biswajit Basu, J.)