Calcutta High Court (Appellete Side)
Kajal Kumar Saha vs Union Of India & Ors on 19 June, 2012
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present: The Hon'ble Mr Justice Jayanta Kumar Biswas
W.P. No. 15194 (W) of 2006
Kajal Kumar Saha
-vs-
Union of India & Ors.
Mr. Sk. Mujibar Rahman
Mr. Sk. Musior Rahman ...for the petitioner.
Mr. Prabhat Kr. Chattopadhyay ...for the Union of India.
Heard on : June 19, 2012.
Judgment on : June 19, 2012.
The Court:- The petitioner in this WP under art. 226 dated June 21, 2006 is
questioning an order of the Inspector General of Police, Eastern Sector, CRPF, Kolkata
dated March 31, 2006 rejecting his revision petition against an order of the Deputy
Inspector General of Police, CRPF, Durgapur dated October 5, 2005 rejecting his appeal
against an order of the Commandant, 41 BN, CRPF, Kolkata dated March 19, 2005
inflicting on him the penalty of compulsory retirement from service with effect from
March 19, 2005.
By a memorandum dated November 4, 2003 the Commandant initiated
disciplinary proceedings against the petitioner who was working in the Force as a
Constable(GD). Annexure-I to the memorandum contained the sole article of charge
framed against the petitioner.
The article of charge contained in Annexure-I to the memorandum is quoted
below:-
"That No.903045924 Constable/GD Kajal Kumar Saha (Under Suspension) while posted in
3 Signal Bn. CRPF Kolkata during Dec'2002; committed an act of gross misconduct in his capacity
as a member of the force, in that he got himself involved in a criminal proceedings as an accused
in a case registered at South Bidhan Nagar Police Station, KOLKATA (WB) vide FIR No.14 dated
21/01/2003 in connection with leakage of question papers of written test conducted on
26/12/2002 for selection of candidates for the post of Constable (GD) in CRPF; which amounts to
an act of gross misconduct and unbecoming of a member of a disciplined force like CRPF and is
punishable under section 11(1) of CRPF Act 1949 read with rule 27 of CRPF Rules 1955."
A copy of the FIR No.14 dated January 21, 2003 is at p.59 of the WP. It was
registered by South Bidhan Nagar police station in Salt Lake of the District North 24-
Parganas. The FIR was registered on the basis of a written complaint dated January 21,
2003 to the officer in charge of the police station by the Deputy Inspector General, Group
Centre, CRPF, Durgapur.
The complaint was regarding the following:-
"LEAKAGE OF QUESTION PAPER IN THE RECRUITMENT OF CONSTABLE
(GENERAL DUTY) IN CENTRAL RESERVE POLICE FORCE HELD ON 26.12.2002."
It was alleged in the complaint that the persons named therein (including the
petitioner) had leaked the exam set for the written test. On the basis of the complaint the
FIR was registered under ss.409/120B/420 IPC. Nine persons including the petitioner
were named as accused.
During investigation of the case on the basis of the FIR the Commandant initiated
the disciplinary proceedings. The petitioner participated in the proceedings in which one
Ajay Kumar Singh, on the basis of whose complaint the Deputy Inspector General lodged
the complaint dated January 21, 2003, was examined as the principal prosecution witness.
A copy of the examination in chief of Ajay Kumar Singh - it was recorded in Hindi - is at
p.88 of the WP.
An official transliteration of the examination in chief has been produced and it is as
follows:-
"Mai Ajay Kumar Singh, pita S.N.Singh, Salt Lake, K.C. Block-109 (K.C. Block 109) me
rahta hoon. Aur mai K. Ri. Pu. Bal me Bharti 2002-2003 me bhag liya tha. Dinank 26/12/02 ko
Kalkata me Ke. Ri Pu. Bal Centre me likhit pariksha hua aur main oos pariksha me pass hua, aur
mere medical 04/01/2003 me hua. Mera overweight hone se mere ko unfit kiya gaya.
Prosecution document-4 me jo darshaya gaya complaint maine apne hato se likha hai. Mai
aur mera signature aur handwriting satyapit karta hoonuska photo copy prastut karta hoon.
Jab main medical unfit hua uske bad badminton khelte samai sipahi H.K. Goin ne muzh se
poocha ki tumhara medical me kya hua. Maine bola ki overweight aur aankhon ki kamjori ke
karan mai unfit ho gaya hoo. Uske bad sipahi H.K. Goin ne muzh se kaha ke meri Recruiting
Officer se pahchan hai. Tum mere sath chalo, mai tumhari naukri kara doonga. Muzhse mere
mata pita (parents), ko bhi poochne nahi diya aur Goin ne kaha ke IGP/ES Office me le gaya. Jab
Goin vaha le gaya tab Goin vaha bapas nahi le gaya tha ki vaha ja kar tumhe complaint likhna hai;
lekin main jab vaha pahuchta hoo to Goin 3-4-ke. Ri. Pu. Bal. Ke admi ke bich me vaha complaint
likhne ko kaha jata hai.
To istarah zobhi complaint mere hatho se likhi gaya thi Vaha sab bal purbak likhaya gaya
tha. Aur leakage of question paper ke bare me mujhe kuch pata nahi hai."
The officer conducting the inquiry submitted his report dated September 23, 2004.
He recorded the following conclusion:-
"From the findings and analysis of the recorded statements, the produced documents by
both sides, it is crystal clear that the article of charge framed against him u/s 11 (1) of CRPF Act
1949 with Rule 27 of CRPF Rules 1955 regarding misconduct as a member of the Force is fully
proved beyond any shadow of doubt.
A criminal case is going on in the SDJM Court Barrackpore, (WB) from 24/01/03 and
No.903045924 CT Kajal Kumar Saha is an accused for leakage of Question.
A Govt. servant even while on leave is required to show good conduct in his personal life
and should not by his actions defame the Govt. or organization in which he works, which leads to
misconduct and unbecoming of a Govt. servant."
Accepting the findings of the officer conducting the inquiry the Commandant
passed the order dated March 19, 2005 that the charge against the petitioner had been
proved, and that it was necessary to inflict on him the penalty of compulsory retirement
from service. The petitioner's appeal against the order was rejected and his revision
petition against the order rejecting his appeal was also rejected.
During pendency of the disciplinary proceedings the police officer concerned
submitted a charge-sheet No.58 dated December 4, 2003 against eleven persons including
the petitioner under ss. 409/420/120B IPC. During pendency of this WP the Criminal
Court has given decision dated April 30, 2010 acquitting all the accused including the
petitioner on the grounds that the prosecution had failed to bring home the charge.
In a supplementary affidavit dated April 25, 2012 the respondents have stated that
disciplinary proceedings were initiated against all the persons against whom the criminal case was filed, and that except the petitioner, who has been compulsorily retired by way of punishment, all the other persons were exonerated.
Mr. Rahman appearing for the petitioner has submitted that on the facts the punishment inflicted on the petitioner is liable to be quashed.
Mr. Chattopadhyay appearing for respondents has submitted that the disciplinary authority agreed with the findings of the officer conducting the inquiry that the charge against the petitioner that he played an important role in the leakage of exam set for the written test in question; that the officer was justified in reaching the conclusion; and that the appellate and revising authorities closely examined the appeal and the revision petition respectively.
It is evident from the sole article of charge that the misconduct alleged was that the petitioner "got himself involved in a criminal proceedings as an accused." Hence the question is whether the petitioner's involvement in the criminal case as an accused constituted a misconduct.
It was alleged that the misconduct was punishable under s. 11(1) of the Central Reserve Police Force Act, 1949. Sub-section (1) of s.11 is quoted below:-
"(1) The Commandant or any other authority or officer as may be prescribed, may, subject to any rules made under this Act, award in lieu of, or in addition to, suspension or dismissal any one or more of the following punishments to any member of the Force whom he considers to be guilty of disobedience, neglect of duty, or remissness in the discharge of any duty or of other misconduct in his capacity as a member of the Force, that is to say, -
(a) reduction in rank;
(b) fine of any amount not exceeding one month's pay and allowances;
(c) confinement to quarters, lines or camp for a term not exceeding one month;
(d) confinement in the quarter-guard for not more than twenty-eight days, with or without punishment drill or extra guard, fatigue or other duty; and
(e) removal from any office of distinction or special emolument in the Force."
In the Central Reserve Police Force Act, 1949 and the rules made thereunder no omission or commission on the part of a member of the Force has been specified as a misconduct. To be precise, involvement of a member of the Force in a criminal case is not a misconduct specified in any provision of the Act and the rules made thereunder. Hence the word misconduct used in s.11 (1) of the Act is to be understood in its general meaning, and it can be said that an omission or commission on the part of a member of the Force, when injurious to the employer, will be a misconduct punishable under s.11 (1) of the Act.
It is not the case that the petitioner, of his own accord, got involved as an accused in the criminal case in question. The admitted position is that the Deputy Inspector General lodging the complaint with the officer in charge of the police station concerned involved the petitioner in the case as an accused, and that the Deputy Inspector General took the steps qua the petitioner's employer.
Hence the petitioner's involvement in the criminal case was not a commission or omission on his part. I am, therefore, unable to see how his involvement in the criminal case as an accused by his employer could constitute a misconduct. In my opinion, the proceedings were initiated by making an allegation that could not constitute a misconduct punishable under sub-s.(1) of s.11 of the Act.
It is evident from the report of the officer conducting the inquiry and the orders passed by the Commandant, the Deputy Inspector General and the Inspector General qua the disciplinary authority, the appellate authority and the revising authority, that they all proceeded on the basis that the charge against the petitioner was that he had leaked the exam set for the written test in question.
A reading of the article of charge and the statement of imputation of misconduct contained in Annexure-II to the memo dated November 4, 2003 issued by the Commandant makes it clear that no charge was levelled that the petitioner had leaked the written test exam in question. Even assuming that on the basis of the charge mentioned in the article this question could be investigated and decided, I am of the view that the question was decided against the petitioner contrary to the evidence taken down by the officer conducting the inquiry.
The Deputy Inspector General lodged the complaint dated January 21, 2003 on the basis of a complaint of one Ajay Kumar Singh who as a candidate for the post of Constable in the Force took the written test in question. That Ajay Kumar was the principal prosecution witness in the departmental proceedings. It is evident from his evidence taken down by the officer conducting the inquiry that he had no knowledge of any leakage of the written test exam in question, and that he was compelled to lodge the complaint.
I am unable to see how in the face of this evidence the officer conducting the inquiry and the disciplinary authority could conclude - applying the principle of preponderance of probability - that the petitioner had leaked the written test exam in question. In my opinion, the findings of the officer conducting the inquiry with which the Commandant agreed were grossly perverse.
It is also to be noted that all the other persons against whom disciplinary proceedings were initiated making the same allegation were exonerated, and that only the petitioner was punished. This unusual feature when the whole fundament of the charge was collusion has left a huge mysterious gap. It cannot be ignored that the persons who were exonerated and the petitioner, only who was punished, all were accused in the criminal case in which the prosecution failed to prove that they had leaked written test exam in question; and that the criminal court acquitted them all of the charges.
On these facts, it seems to me that the petitioner was singled out and punished for extraneous reasons. The orders of the Inspector General, Deputy Inspector General and the Commandant, in my opinion, should be set aside, and I think it will be appropriate to direct the petitioner's reinstatement in employment with all benefits.
For these reasons, I set aside the orders of the Inspector General, Deputy Inspector General and the Commandant, the inquiry report, allow the WP and direct the respondents to reinstate the petitioner in employment with all benefits to which he would have been entitled in the absence of the penalty imposed on him. Compliance within eight weeks from the date this order is served. No costs. Certified xerox.
Kc(c);ab(f) (Jayanta Kumar Biswas,J.)