Calcutta High Court (Appellete Side)
Mintu Mallick vs The Hon'Ble High Court At Calcutta & Ors on 14 July, 2017
Author: Biswanath Somadder
Bench: Biswanath Somadder
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Appellate Side
Present :
THE HON'BLE MR. JUSTICE BISWANATH SOMADDER
WP 12357(W) of 2014
Mintu Mallick
-Vs.-
The Hon'ble High Court at Calcutta & Ors.
Mr. Mintu Mallick
...................Petitioner-in-person.
Mr. Saptansu Basu............ Sr. Advocate,
Ms. Sumita Shaw..................Advocate
.......For the respondent nos.1 & 2.
Heard on 11.03.2016, 18.03.2016, 08.04.2016, 08.07.2016, 16.09.2016,
23.09.2016, 18.11.2016, 25.11.2016, 02.12.2016, 09.12.2016,
16.12.2016, 20.01.2017, 27.01.2017, 24.02.2017, 17.03.2017,
24.03.2017, 07.04.2017, 09.06.2017 & 07.07.2017.
Judgment on 14.07.2017
Biswanath Somadder, J.
This is an application under Article 226 of the Constitution of India taken out by a former judicial officer challenging the order of his compulsory retirement from service dated 29th March, 2013 and the order of the Appellate Authority dated 22nd January, 2014. The writ petitioner is also seeking his reinstatement in service along with all consequential benefits. Briefly stated, the facts are as follows:-
The writ petitioner Mintu Mallick was selected in the West Bengal Civil Services (Judicial) Examination, 1999 and was appointed as Civil Judge (Junior Division) initially on a temporary basis vide notification no.2166-J dated 16th March, 2001 issued by the Judicial Department to the Government of West Bengal. His service in the West Bengal Civil Services (Judicial) was confirmed with effect from 22nd March, 2003 by an administrative order of this Court dated 5th June, 2006. At the material point of time, the writ petitioner Mintu Mallick was posted as the Judicial Magistrate, 4th Court-cum-Railway Magistrate at Sealdah. On 5th May, 2007, he entered the driver's cabin of a Budge Budge- Sealdah local train and travelled from Lake Gardens station to Sealdah railway station despite serious objections raised by the motorman. After the train reached Sealdah station, the writ petitioner got down from the motorman's cabin. Once he got down from the cabin, the writ petitioner on his own admission asked the Government Railway Police (for short "GRP") personnel to bring the driver and the guard to the Sealdah Magistrate's Court to give an explanation as to the late running of trains. In the enquiry report, however, it has been specifically stated that after getting down from the motorman's cabin, the writ petitioner asked the GRP personnel to arrest the motorman and the train guard. The writ petitioner has specifically denied that he had directed the GRP personnel to arrest the motorman or the guard of the train. Be that as it may, the motorman was initially taken to the GRP station and thereafter to the Sealdah Magistrate's Court. This resulted in a spontaneous and violent demonstration on the part of the railway employees and stoppage of train services which ultimately resumed at around 03:45 pm on that day. In the meanwhile, both the motorman as well as the guard were asked to give statements in the Court with regard to late running of trains and were released at around 12-12:30 pm. While the driver and the guard were in Court, a demonstration had already started outside the Court. Around this time, the entire matter was reported to the Registrar General of this Court. The Registrar General made his own enquiries through the office of the District Judge, 24 Parganas (South) and he along with the Additional Chief Judicial Magistrate, 24 Parganas (South) and the Additional District Judge, Sealdah, submitted separate reports in the matter which are already on record. Subsequently, the issue was brought to the notice of the Hon'ble Zonal Judge of 24 Parganas (South) who at that point of time was not in station. The Hon'ble Zonal Judge directed the Registrar General to monitor the situation and take up the matter with the Divisional Railway Manager, Sealdah, to solve the impasse regarding disruption of train services and also for smooth functioning of the Railway Court at Sealdah. The Hon'ble Zonal Judge further directed that if normalcy could not be restored, the Railway Magistrate was to take up appropriate steps by referring the matter to the Hon'ble High Court in accordance with law. Subsequently, the matter was placed before the Hon'ble Chief Justice on 7th May, 2007 by the Registrar General. The Hon'ble Chief Justice directed the then Registrar (Vigilance & Protocol) to hold a discreet enquiry as to the cause of demonstration by the railway employees with particular reference to the role of Railway Magistrate, Mintu Mallick, being the writ petitioner herein. The Registrar (Vigilance & Protocol) held a discreet enquiry into the matter and a report was placed before the Hon'ble Chief Justice for consideration. On 21st May, 2007 the High Court issued an order, placing the writ petitioner Mintu Mallick under suspension with immediate effect. Thereafter, on 3rd December, 2007 a Memorandum of Charge was issued containing the following two Articles of Charge :-
"ARTICLE OF CHARGE NO. 1
That you, Shri Mintu Mallick, while functioning as Judicial Magistrate, 4th Court-cum-Railway Magistrate, Sealdah, South 24- Paraganas, unauthorisedly travelled in the Motor Man's Cabin in a Budge Budge - Sealdah Local Train from the Lake Gardens Station to the Sealdah Railway Station on May 5, 2007 and prime facie it appears that you as the Judicial Magistrate, 4th Court-cum-Railway Magistrate, Sealdah, South 24-Paraganas used to travel in the similar fashion in the past without having any valid pass to enter Motor Man's Cabin having full knowledge that such unauthorized travelling is unbecoming of a public Servant and also amounts to gross misconduct, The allegation shows that you made improper and illegal exercise of administrative powers so vested upon you as the Judicial Magistrate, 4th Court-cum-Railway Magistrate, Sealdah, South 24- Paraganas and such allegations, if proved, would amount to gross misconduct and such behavior on your part as a public servant is unbecoming of a Judicial Officer.
ARTICLE OF CHARGE NO. II That you, Shri Mintu Mallick, unauthorisedly travelled in the Motor Man's Cabin in a Budge Budge - Sealdah Local Train from the Lake Gardens Station to the Sealdah Railway Station on May 5, 2007 and during the course of journey you enquired about the reasons of the late running exceeding your jurisdiction as a Railway Magistrate.
That you, obtained a report on late running of the trains from both Sri Dipak Sanyal, the Motor Man and Sri Monoj Kumar Mondal, the Guard of the said local train after the arrival of the said Sealdah bound local train at Sealdah Station at 10-45 a.m. The Railway employees started demonstration as soon as the driver and the guard of that particular local train were taken first to the Thana and thereafter to the Court pursuant to your verbal order and it prima facie appears that because of the aforementioned unauthorized activities on your part, there was violent demonstration by the railway employees resulting in total disruption of train services within Sealdah Division from 11.15 a.m. to 3.45 p.m. on that day.
The allegation shows that you made improper and illegal exercise of administrative as well as Judicial powers so vested upon you as the Judicial Magistrate, 4th Court-cum-Railway Magistrate, Sealdah, South 24-Paraganas and such allegations, if proved, would amount to gross misconduct and such behavior on your part as a public Servant is unbecoming of a Judicial Officer."
The charges were replied to by the writ petitioner in the form of a written statement, which was received by the High Court on 16th January, 2008. On 16th December, 2009 the order of suspension was revoked and the writ petitioner Mintu Mallick was posted as Judicial Magistrate of the First Class in the district of 24 Parganas (South) to be ordinarily stationed at Alipore.
On 28th February, 2011, the writ petitioner received a notice from the enquiry officer. The enquiry officer effectively commenced the enquiry on 25th March, 2011 and concluded the same on 4th January, 2013. Four (4) prosecution witnesses and one (1) defence witness (being the writ petitioner herein) were examined. The report of the enquiry officer dated 7th January, 2013 was communicated to the writ petitioner by a memo dated 7th March, 2013 issued by the Registrar (Vigilance & Protocol). Upon receipt of the said memo dated 7th March, 2013, the writ petitioner submitted his representation / explanation on 6th April, 2013. On 17th May, 2013, two (2) notifications were issued by the Registrar (Judicial Service) containing names of various judicial officers being transferred under general order of transfer. The writ petitioner Shri Mintu Mallick was transferred from Alipore, 24 Parganas (South) to Mayabandar, Andaman & Nicobar Islands as Judicial Magistrate-cum-Civil Judge (Junior Division). On 5th August, 2013, the writ petitioner, Shri Mintu Mallick was relieved from his duty as the Judicial Magistrate, 1st Class at Alipore, District 24 Parganas (South). However, before he could proceed to Andaman & Nicobar Islands, on 8th August, 2013, he was served with a memo of the same date issued by the Registrar (Judicial Service) which was addressed to the Principal Secretary, Government of West Bengal, Judicial Department with a copy marked to him. The content of the memo is required to be reproduced hereinbelow:
"I am directed to inform you that the Hon'ble Court having considered the charge-sheet being Memorandum of Charge No. 4884 RG dated 3rd December, 2007 with enclosures thereof, duly served upon Sri Mallick, the Inquiry Report dated 07.01.2013 in the Departmental Proceedings initiated against him and the representation submitted by him in reference to Court's Memo No. Con 1040 R (V&P), dated 07.03.2013, has been pleased to resolve as follows :
"Considering the impact of the activity of the delinquent officer on the society and misconduct which is totally unbecoming of a Judicial officer, resulting in disruption of train services due to demonstration made by the railway employees, thereby tarnishing the image of the judiciary in the estimation of the members of public, in the facts and circumstances of the case, it is consider(sic; read considered) appropriate to inflict upon him punishment of compulsory retirement from Judicial Service."
I am, accordingly, directed to communicate the above decision of the Hon'ble Court for inflicting punishment of Compulsory Retirement from the WBJS, upon Sri Mintu Mallick, Judicial Magistrate, 4th Court-cum-Railway Magistrate, Sealdah, now posted as Judicial Magistrate, 1st Court, Alipore, 24 Parganas (S), U.O.T. as CJ(JD)-cum-JM, Mayabander, A&N Islands, to take effect on and from 12.08.2013 (A/N) subject to issuance of necessary Government order in this regard in terms of the relevant provision under Rule 10(b) (iii) read with Rule 20(b) of the West Bengal Judicial Service (Classification, Control and Appeal) Rules, 2007 and request you to take steps for issuance of necessary orders immediately, under intimation to this Court.
This may kindly be treated as extremely urgent."
On 29th August, 2013, the Secretary to the Government of West Bengal, Judicial Department, published the order of the Hon'ble Governor, imposing penalty of compulsory retirement on Mintu Mallick on the basis of the recommendation made by the Hon'ble High Court. On 4th September, 2013, the writ petitioner preferred an appeal before the Hon'ble Governor under Rule 16 of the West Bengal Judicial Service (Classification, Control and Appeal) Rules, 2007. On 22nd January, 2014, the Hon'ble Governor of West Bengal passed an order disallowing the appeal of Mintu Mallick. Consequently, the instant writ petition has been filed by the writ petitioner praying, inter alia, for the following reliefs:-
"A. Issue a Rule Nisi calling upon the respondents to show cause as to why a writ or order or direction in nature of Mandamus shall not be issued asking the respondents to rescind and/or withdraw and or revoke and / or cancel the Order of Compulsory Retirement dated 29th August, 2013 being Annexure P-33 and the Order of the Appellate Authority dated 22nd January, 2014 being Annexure P-37 respectively and reinstate the petitioner with all service benefits;
B. Issue a Rule Nisi calling upon the respondent to show cause as to why a writ or order or direction shall not be issued in the nature of Certiorari directing the respondent to produce or cause to be produced all the documents relating to this case before this Hon'ble Court so that conscionable justice may be administered by quashing the Enquiry Report dated 7th January, 2013, recommendation of the Hon'ble High Court dated 8th August, 2013 and the Order of Compulsory Retirement dated 29th August, 2013, the Order dated 22nd January, 2014 and all other documents, if required;
C. Direct the respondents to pay a sum of Rupees Three Crores by way of damages and compensation to the petitioner;"
According to the writ petitioner, his actions which are matters of record, are not contrary to the provisions of the Indian Railways Act, 1890 and 1989 as well as the provisions of the Code of Criminal Procedure. It was the anxiety of the passengers as well as the helpless and unhappy faces of the school going children because of late running of trains that prompted the writ petitioner to enquire into the cause for late running of trains in order to prevent injuries to the railway and public at large. In other words, his actions were well within the framework of law. The writ petitioner has tried to justify his action by delving into the facts of the case which are all matters of record. For the purpose of adjudication of the issue as to whether the reliefs as prayed for by the petitioner can be granted, it is not necessary to restate the same. However, it has also been contended that the order of punishment levelled upon the writ petitioner tantamounts to bringing a fresh charge against him with regard to tarnishing the image of the judiciary in the estimation of members of the public at large without giving him an opportunity to refute the charge, which does not find any place in the Articles of Charge framed against him.
The High Court Administration in its affidavit-in-opposition has denied all allegations made by the writ petitioner. In paragraph 3, containing various sub-paragraphs thereunder, it has restated the relevant facts of the case and has denied the allegations made in various paragraphs of the writ petition in the subsequent paragraphs of the affidavit-in- opposition. It has been contended on behalf of the High Court Administration that the provisions of the Code of Criminal Procedure referred to and relied upon by the writ petitioner does not empower anyone to enter into the motorman's cabin of the train unauthorisedly to travel from one station to another station. The High Court Administration, apart from referring to the facts which are on record, has also drawn this Court's attention to Rule 30608 as prescribed in AC Traction Manual, Volume III of Indian Railways which specifically lays down the provisions relating to unauthorized person in loco / driver's cabin. It is submitted that the said Rule specifically provides that drivers of locomotive trains must not allow anyone to enter any of the driving compartments other than those who are authorized to do so under the rule or hold permit issued by the Senior D.E.E. / D.F.F. (OP). Even an off duty driver is also not permitted to enter or travel in any of the driving compartment unless authorized by the TLC and that too for travel towards headquarters after being relieved enroute.
With regard to the legitimacy of the enquiry report, the High Court Administration has further contended that on completion of the enquiry, the report was communicated to the writ petitioner in terms of Rule 11 (19) of the West Bengal Judicial Service (Classification, Control and Appeal) Rules, 2007, wherein the petitioner was directed to showcause as to why the report cannot be accepted and the petitioner cannot be suitably punished vide resolution dated 20th February, 2013 of the Administrative Committee, approved by the Full Court by circulation on 4th March, 2012. The writ petitioner's representation was considered by the Administrative Committee of the Court and only thereafter, the enquiry report was accepted and thereby punishment of compulsory retirement in terms of Rule 10 (b)(iii) of the West Bengal Judicial Service (Classification, Control and Appeal) Rules, 2007 was imposed.
It has been further stated by the High Court Administration that after compliance of Rule 11 (19) of the West Bengal Judicial Service (Classification, Control and Appeal) Rules, 2007 and after considering the second representation, submitted by the petitioner, the Administrative Committee imposed punishment under Rule 10(b)(iii) of the West Bengal Judicial Service (Classification, Control and Appeal) Rules, 2007 and the said decision dated 23rd July, 2013 of the Administrative Committee was approved by the Full Court on 13th August, 2013. The High Court Administration has also referred to the appeal provisions contained in Rule 16 of the West Bengal Judicial Service (Classification, Control and Appeal) Rules, 2007 which provides that an aggrieved judicial officer may prefer an appeal before the Governor against any order made by the disciplinary authority including an order imposing any of the penalties specified in items (i) to (v) of clause (b) of Rule 10. According to the High Court Administration, the provisions of the said Rule had been followed in the instant case. In such circumstances, it has been submitted on behalf of the High Court Administration that there is no case for interference by the writ Court in the instant matter.
The petitioner and High Court Administration have referred to several judgments. The petitioner has referred to Rachapudi Subba Rao Vs. Advocate General, A.P. reported in (1981) 2 SCC 577, which essentially deals with the provisions of Judicial Officer's Protection Act, 1850 and the Contempt of Courts Act, 1971.
In Vijay Singh Vs. State of U.P. & Ors. reported in (2012) 5 AIR SCC 242 the issue before the Supreme Court was whether disciplinary authority could impose punishment not prescribed under statutory rules after holding disciplinary proceedings.
In Nirmala J. Jhala Vs. State of Gujarat reported in (2013) 4 SCC 301 the Supreme Court while considering the case of the appellant who had joined Gujarat State Judicial Service in 1978 and was later on sent on compulsory retirement pursuant to disciplinary proceedings initiated against her on the basis of a CBI complaint referred to the High Court on facts came to the conclusion that her appeal was required to be allowed and set aside the order of punishment imposed by the Gujarat High Court compulsorily retiring the appellant.
In Indu Bhushan Dwivedi Vs. State of Jharkhand reported in (2010) 11 SCC 278 the issue that came up for consideration is whether a disciplinary authority while recommending or imposing punishment on an employee who is found guilty of misconduct can consider his past adverse record or punishment without giving him an opportunity to explain his position and considering his explanation. The Supreme Court came to the conclusion that no punishment on an employee in such a situation can be imposed without giving an opportunity to the employee to explain his position and considering his explanation. However, such an opportunity was not required if the final punishment was lesser than the proposed punishment. The Supreme Court also considered the issue as to whether the past record of the delinquent employee can be considered at the stage of imposing punishment unless he was put to notice and given an opportunity to explain his position. The Supreme Court answered in the negative.
In Yoginath D. Bagde Vs. State of Maharashtra & Anr reported in (1999) 7 SCC 739 the main issue which came up for consideration was with regard to the jurisdiction of the disciplinary committee constituted by the Bombay High Court to consider the report of the enquiry officer and take a decision to impose punishment of dismissal from service upon the appellant. The Supreme Court rendered its view primarily on this point in the facts of that case. There were other points such as whether the disciplinary committee could have disagreed with the findings recorded by the enquiry officer and proceeded to hold that the charges against the appellant were proved thereby going in violation of the principles of natural justice inasmuch as it did not give an opportunity of hearing at the stage when it developed the inclination that the findings recorded by the enquiry officer were not acceptable and were liable to be reversed. Upon considering this issue in the facts and circumstances of that case the Supreme Court came to the conclusion that the disciplinary committee was wholly in error in disagreeing with the findings recorded by the enquiry officer and the charges levelled against the appellant were not established. The final conclusion arrived at by the Supreme Court in the facts and circumstances of that case upon scrutinizing the reasons of the disciplinary committee was that the said committee had taken its final decision without granting any opportunity of hearing to the appellant at the stage at which it proposed to differ with the findings of the enquiry committee.
In Smt. Mona Panwar Vs. The Hon'ble High Court of Judicature at Allahabad through its Registrar & Ors. reported in (2011) 3 SCC 496 the Supreme Court while considering certain remarks made by a Judge of the Allahabad High Court against a Judicial Officer observed to the effect that using intemperate languages and casting strictures on members of the lower judiciary diminishing the image of judiciary in the eyes of public and, therefore, the higher Courts should refrain from passing disparaging remarks against members of the judiciary.
In Bhushan Kumar & Anr. Vs. State (Nct of Delhi) & Anr. reported in (2012) 5 SCC 424 the question that came up for consideration was whether the order passed by the Magistrate could be faulted only on the ground that the summoning order was not a reasoned order. The Supreme Court answered in the negative.
In Vijay Dhanuka etc. Vs. Najima Mamtaj and others reported in (2014) 14 SCC 638 the issue which came up for consideration was in respect of section 202(1) of the Code of Criminal Procedure, 1973. Section 202 of Code of Criminal Procedure, inter alia, contemplates postponement of the issue of the process "in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" and thereafter to enquire into the case by himself to direct an investigation to be made by a police officer or by such other person as the Magistrate thinks fit. In the facts of that case, the Supreme Court determined as to, whether, in a case where the accused was residing at a place beyond the area in which the Magistrate exercises his jurisdiction, enquiry was mandatory or not. The Supreme Court while referring and relying upon Udai Shankar Awasthi Vs. State of Uttar Pradesh reported in (2013) 2 SCC 435 observed the said provision for enquiry as provided under section 202 of Code of Criminal Procedure to be mandatory in nature.
In Manharibhai Muljibhai Kakadia & Anr. Vs. Shaileshbhai Mohanbhai Patel & Ors. reported in (2012) 10 SCC 517 the issue that came up for consideration was whether the accused was entitled to hearing by a revisional Court in a revision preferred by the complainant challenging the order of a Magistrate and dismissing the complaint under section 203 of the Code of Criminal Procedure, 1973. While dealing with the issue the Supreme Court took into consideration various provisions of the Code of Criminal Procedure including section 202 and observed to the effect that "taking cognizance of an offence" does not involve action of any kind. Only upon a Magistrate taking notice of the complaint or the first information report and applying his mind at the initial stage for the purpose of proceeding under section 200 etc. cognizance can be said to have been taken and it does not necessarily mean issuance of process. The Supreme Court in the facts of that case while considering the order passed by the CJM observed to the effect that there remain no doubt that the CJM had taken cognizance although he postponed issue of process by directing an investigation to be made by police officer. The submission which was made by the learned Counsel for the respondent no.1 that the CJM had not taken cognizance in the matter and the complaint was dismissed under section 203 at the pre-cognizance stage was found to have no substance and was rejected.
In M.V. Bijlani Vs. Union of India & Ors. reported in (2006) 5 SCC 88 the Supreme Court observed to the effect that jurisdiction of the Court in judicial review in respect of a disciplinary proceeding was quite limited. Disciplinary proceedings, however, being quasi criminal in nature there should be some evidence to prove the charge. Although charges in a departmental proceeding are not required to be proved like a criminal trial, the Court cannot lose sight of the fact that the enquiry officer performs a quasi judicial function.
In Roop Singh Negi Vs. Punjab National Bank & Ors. reported in (2009) 2 SCC 570 the Supreme Court observed to the effect that a departmental proceeding is a quasi judicial proceeding. The enquiry officer performs a quasi judicial function. The charges levelled against the delinquent officer must be found to have been proved. While making such observations the Supreme Court referred to and relied upon the several judgments including the judgment relied upon by the writ petitioner in M.V. Bijlani (supra).
All the above judgments have been referred to and relied upon by the petitioner in order to contend that in view of the principles laid down therein, the entire disciplinary proceeding and punishment of compulsory retirement imposed upon the writ petitioner were liable to be quashed and/or set aside and the writ petitioner was entitled to be reinstated with all service benefits made in the prayer A of the writ petition.
On the other hand, on behalf of the High Court Administration, the decision rendered by the Supreme Court in the case of State of Haryana Vs. Inder Prakash Anand H.C.S. & Ors. reported in AIR 1976 SC 1841 was relied upon in order to contend that the control vested in the High Court is that if the High Court is of the opinion that a particular judicial officer was not fit to be retained in service, the High Court will communicate to the Governor because the Governor is the authority to dismiss, remove, reduce or terminate the appointment and that the Governor as the head of the State will act in harmony and with the recommendation of the High Court.
The High Court Administration also referred to and relied upon the decision of the Supreme Court rendered in State of Tamil Nadu & Ors. Vs. M.N. Sundararajan reported in AIR 1980 SC 2084 in order to contend that even assuming there was some irregularity in the constitution of the review committee which dealt with the case of the respondent, the same could not affect the validity of the impugned orders. In the facts of that case, the order was that of compulsory retirement of the concerned employee. Finally, the High Court Administration referred to and relied upon a decision of the Supreme Court in the case of The High Court of Judicature at Bombay, through its Registrar Vs. Shashikant S. Patil & Anr. reported in AIR 2000 SC 22 in order to contend that the settled legal position was that if there was some legal evidence on which findings could be based then adequacy or even reliability of the evidence was not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution of India.
After considering the respective contentions of the parties, this Court finds merit in the contentions of the High Court Administration. The petitioner, appearing in person, has repeatedly argued on the grounds that his actions were justified in light of the statutory powers enjoyed by him as the Fourth Court cum Railway Magistrate. To that, the High Court Administration has correctly highlighted the facts on record, along with the relevant Rule of the AC Traction Manual, Volume III of the Indian Railways, which was clearly violated by the petitioner.
The petitioner's actions are well beyond the scope of the Code of Criminal Procedure, 1973. While the petitioner, being the Railway Magistrate, was empowered under section 190 of the Cr.P.C. to take cognizance of an offence, the format along with the limitations of taking such cognizance too have been clearly stipulated in the pages of the statute. Section 190(1)(c) empowers a magistrate to take cognizance of an offence upon information obtained on his own knowledge. However, such a situation would clearly require the magistrate to make out the said cognizable offence, reduce the same to writing as per the mandate of section 200 of the Cr.P.C. and subsequently, direct the relevant authority to conduct investigation. Assuming that the petitioner wanted to take cognizance of the offence of delayed running of trains - which, in either case, does not find any place for penal coverage under the Railways Act - he failed to state the cognizable offence or produce any written report or direct investigation to proper authorities, thereby vitiating the entire process of taking judicial cognizance. Any act thereafter done on his own accord would have been utterly wrongful in nature and not protected or covered by any statutory provision. The petitioner's personal interrogation of the motorman and his subsequent order of detention / arrest is no exception either.
The petitioner, post the improper investigation and interrogation, proceeded to get the motorman detained / arrested on his verbal orders for an offence that does not find any place within the ambit of section 180 of the Indian Railways Act, which stipulates the circumstances which warrant an arrest of the offender in the event, he is likely to abscond, etc. The instance of detention / arrest ordered by the petitioner is improper, both in form and in substance. The provision of Code of Criminal Procedure clearly states that investigation preceding any arrest can only be conducted by an authorized person after receiving written orders or notifications from the Central Government. The petitioner cannot, by any stretch of imagination, claim to fall under the category of an 'authorized person' nor can he claim possession of any written order. Neither can he claim any immunity available to a Judge under section 77 of the Indian Penal Code, since he was not acting judicially. Similarly, (The) Judicial Officers' Protection Act, 1850, to which the petitioner has referred to and relied upon, has no manner of application at all in the facts of the instant case, since the petitioner has neither acted judicially nor has he been sued in any civil Court.
The petitioner's plea of compulsory retirement being unjustly imposed on him, requires a detailed examination. The act of the petitioner making an unauthorized entry into the motorman's cabin, especially in the background of the fact that he had done the same on previous occasions, interrogating the motorman in the name of a judicial enquiry and subsequently ordering his detention / arrest, independently and collectively amount to offences which are patently illegal in nature. Such acts and the fact that they tantamount to punishable offences, finds mention in the Articles of Charge as well as the relevant Rules and statutes. Therefore, it is beyond doubt, that the commission of these acts or offences warrant the invocation of major penalty, i.e., compulsory retirement, which has been laid down in Rule 10(b)(iii) of the West Bengal Judicial Service (Classification, Control and Appeal) Rules, 2007. The propriety of imposition of penalty of compulsory retirement in this particular case, cannot be questioned. The petitioner was engaged in several offensive acts and one among them was his previous conduct of having regularly travelled in such unauthorized manner, thereby attracting Rule 10(b). The petitioner, being a judicial officer, at all times had an onerous responsibility of upholding the dignity and majesty of the judiciary and therefore was required to demonstrate such conduct befitting his position.
A Court can interfere with an order of compulsory retirement only when it is mala fide or there is lack of evidence or if the order is arbitrary - inasmuch as it fails the test of reasonableness - or in other words, perverse. In this context, one may take notice of the observations made by the Supreme Court in the case of Baikuntha Nath Das & Another. Vs. Chief District Medical Officer, Baripada & Another., reported in AIR 1992 SC 1020. None of the elements, indicated above, are present in the facts of the instant case.
For reasons stated above, the writ petition is liable to be dismissed and is accordingly dismissed.
Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on priority basis.
(BISWANATH SOMADDER, J.)