Calcutta High Court (Appellete Side)
Md. Akhtar Alam vs State Of West Bengal & Others on 25 August, 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. 158 of 2011
Md. Akhtar Alam
-Versus-
State of West Bengal & Others
For Petitioner : Mr. Debaprasad Nath
Mr. Sajal Kanti Bhattacharyya
For State Respondents : Mr. Pradip Dutta
Mr. Pinaki Dhole Order dated : August 25, 2011 The petitioner, a constable under Bengal Police, is a Muslim by religion. He contracted second marriage. He was living with his second wife in his in-laws place for about six months. Dispute arose when the said lady lodged a complaint with the police, inter alia, alleging rape being committed by the constable. The police registered a case under Section 376 of the Indian Penal Code. The Constable faced trial. From the judgment and order of the Criminal Court appearing at pages 66-75 of the petition, we find that during trial the victim lady gave a complete different version. She did not allege anything against the constable, which would relate to offence under Section 376. According to her, she had love affair with the constable. They subsequently married before Muslim Marriage Registrar and Kazi. They started living their conjugal life peacefully in her father's house. After about six months the dispute arose when the constable refused to recognize her as his wife any more. The learned Judge of the Criminal Court gave an honourable acquittal to the constable.
2The petitioner was also proceeded with departmentally on the charge of "moral turpitude" as well as unauthorized absence. The Enquiry Officer submitted a report observing that the charges were proved. The Disciplinary Authority agreed with the finding and imposed a punishment of stoppage of three increments with cumulative effect. The suspension period was confirmed. The period of absence for one day was treated as extraordinary leave. He preferred an appeal. The Appellate Authority affirmed the order of the Disciplinary Authority. He approached the Tribunal. The Tribunal did not discuss the issue on merit. The Tribunal observed that there was no miscarriage of justice in respect of enquiry and there was no scope to interfere. Hence, this application before us.
The Authority suspended him at a stage when the victim lady lodged a complaint with the police alleging that taking advantage of her helplessness, the petitioner ravished her in the empty house of her father. Such allegation was not proved before the competent Criminal Court. The victim lady gave a complete different version before the Criminal Court. The Enquiry Officer also considered such issue. The Enquiry Officer also relied on the fact that the petitioner married her and then refused to recognize her as his wife.
We find from the charge sheet that the petitioner was charged on the ground that he was found unauthorizedly absent on May 31, 2004. The petitioner called Rehena Bibi daughter of Entaj Ali Fakir to meet him at Patiram Bus Stand on May 31, 2004. When Rehena Bibi came, the petitioner asked his friend to arrange a rented a house for him. Rehena Bibi refused to accompany the petitioner to the rented house and took him to her own house, where he ravished her. As per written complaint lodged at Kumarganj Police Station on August 08, 2004, the petitioner developed an illicit relation with Rehena Bibi and being a married Government 3 employee gave a false promise to marry her. He did not marry her and ravished her for which he was proceeded with inter alia, under Section 376 of the Indian Penal Code. From the statement of the victim girl before the learned Judge of the Criminal Court referred to above, it would appear that the victim girl was not consistent. In any event, if we take the gist of her complaint it would appear that the petitioner married her and stayed with her as husband and wife for about six months and later on refused to recognize her as his wife. Such incident, although unfortunate, in our view, could not come within the strict parlance of "moral turpitude", whereby he could be proceeded with departmentally. A Muslim is entitled to contract second marriage. The lady did not object to the second marriage. Her complaint would relate to refusal to accept her and/or recognize her as wife any more. Such situation would give rise to a civil dispute before a matrimonial Court. Such incident may give rise to initiation of a criminal proceeding on a proper charge being brought against the petitioner. In no stretch of imagination this could come within the scope of departmental enquiry. It is unfortunate that the petitioner being a married individual developed a relationship with another lady. That would not come within the ambit of departmental proceeding, particularly when his custom gave him liberty to marry for the second time. The Tribunal, in our view, possibly overlooked this aspect.
The application succeeds and is allowed.
The judgment and order of the Tribunal impugned herein is set aside. The order of the Disciplinary Authority so merged with the order of the Appellate Authority is also set aside, so far it relates to imposition of punishment. We, however, do not wish to interfere with the order of confirmation of the period of suspension when he was paid 50% of the salary.
4W.P.S.T. 158 of 2011 is disposed of without any 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.) akb.