Calcutta High Court (Appellete Side)
State Of West Bengal & Ors vs Vidyasagar Pandey And Another on 24 November, 2010
Author: Ashoke Kumar Dasadhikari
Bench: Pranab Kumar Chattopadhyay, Ashoke Kumar Dasadhikari
1
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Ashoke Kumar Dasadhikari
W.P.S.T. 606 of 2009
State of West Bengal & Ors.
Versus
Vidyasagar Pandey and another
For the Petitioners : Mrs. Sukiran Biswas
Mrs. Moupia De
For the Respondents: Mr. Joytosh Mazumder
Mr. Tapan Kumar Jana
Heard On: 19.11.2010
Judgment On: 24.11.2010.
PRANAB KUMAR CHATTOPADHYAY, J.
This writ petition has been filed assailing the judgment and order dated 25th June, 2009 passed by the West Bengal Administrative Tribunal in case No. O.A. 301 of 2006 whereby and 2 whereunder the said learned Tribunal was pleased to set aside the order of dismissal issued against the employee concerned namely, the respondent No. 1 herein and directed the concerned authority to reinstate the said respondent No. 1.
It appears from the available records that the respondent No. 1 being a Constable of Kolkata Police faced a departmental proceeding on the allegation that he robbed Rs. 10,200/- from the possession of one Md. Kuddus Ali by assaulting him with fists and blows and putting him in fear of instant death. A criminal case was recorded against the said Constable namely, the respondent No. 1 herein being Hare Street Police Station Case No. 430 dated 6th July, 2000 under Section 392 I.P.C. and the said respondent No. 1 was also arrested in connection with the aforesaid criminal case. The disciplinary authority initiated the disciplinary proceedings against the respondent No. 1 and the said respondent No. 1 participated in the disciplinary proceedings.
In the present case, departmental proceedings and the criminal case are based on same set of facts and identical charge. The criminal case initiated against the respondent No. 1 was finally disposed of by the learned Metropolitan Magistrate, 5th Court, Calcutta on 4th May, 2002 wherein the respondent No. 1 was held not guilty of the offence under Section 392 I.P.C. and was, 3 therefore, acquitted on contest. However, in the disciplinary proceedings final order was passed by the disciplinary authority namely, Deputy Commissioner of Police, North and North Suburban Division, Kolkata on 24th May, 2005 imposing punishment of dismissal from service which was also affirmed subsequently by the appellate authority.
The said Constable namely, the respondent No. 1 filed an application before the learned West Bengal Administrative Tribunal being case No. O.A. 301 of 2006 which was finally disposed of by the impugned judgment and order dated 25th June, 2009. While allowing the aforesaid application of the respondent No. 1, learned Tribunal directed the disciplinary authority to reinstate the said Constable in service in view of the order of acquittal recorded by the criminal court on merit.
Mrs. Biswas, learned Counsel representing the petitioners herein submitted that the standard of proof in a disciplinary proceeding is different than that of the criminal proceeding. Mrs. Biswas further submitted that in a departmental proceeding, proof of preponderance of probability is sufficient. Mrs. Biswas also submitted that possibility of involvement of the respondent No. 1 in the alleged offence cannot be ruled out on the basis of the evidence on record. Mrs. Biswas further submitted that the order 4 of discharge or acquittal of a police officer in a criminal case cannot be a bar to impose punishment in the disciplinary proceedings in view of the clear provision of the Police Regulations of Calcutta, 1968.
There is no doubt that in a departmental proceeding proof of preponderance of probability is sufficient but in the present case, it is really difficult to hold the respondent No. 1 guilty of the charge when we find that the complainant was not even examined by the Enquiry Officer.
Mr. Joytosh Mazumder, learned Counsel of the respondent No. 1 invited our attention to the fact that there was delay of about 72 hours in lodging the formal F.I.R. Furthermore, the complainant did not appear before the criminal court.
From the judgment of the learned Metropolitan Magistrate we find that the de-facto complainant did not appear before the learned Magistrate to depose inspite of granting repeated opportunities. As a matter of fact, the prosecution failed to produce the aforesaid vital witness i.e. the de-facto complainant before the learned Magistrate even after issuance of the bailable warrant. The learned Metropolitan Magistrate on examination of the witnesses found that the said witnesses contradicted even the 5 version of the complainant. The learned Magistrate expressed serious doubt as to the genuineness of the prosecution case. The relevant extracts from the judgment of the learned Magistrate passed in the criminal case being G.R. Case No. 2286 of 2000 on 4th May, 2002 are set out hereunder:
"Thus the witnesses contradicted to each other and even they contradicted the version of the complainant. The prosecution case is that Rs. 10,000/- out of Rs. 10,200/- was recovered from the residence of accused. But there is no explanation in the evidence of I.O. as regards the rest of Rs. 200/-.
The most interesting thing is that the I.O. has not stated that he has called the P.W.1 and P.W.2 for interrogation as regards payment of Rs. 10,200/- as sale proceeds of mango though P.W.1 stated the same and such situation creates doubt about the genuinity of the prosecution case. Neither the P.W.1 has handed over any paper to I.O. nor the I.O. has seized any such paper or money receipt to ascertain that actually P.W.2 paid the said amount of Rs. 10,200/- as sale proceeds of the mango into the said defacto complainant, Kuddus Ali. Such circumstances also creates doubt as to the geuninity of the prosecution case."
The learned Magistrate also observed that there is no incriminating and satisfactory evidence to lead the court for holding the accused guilty. The relevant extracts from the aforesaid judgment of the learned Magistrate are set out hereunder:
"Above all the most vital feature is that said Kuddus Ali, the defacto complainant did not come before court to depose inspite of repeated attempts by prosecution to bring the said vital witness i.e. the defacto complainant and finally bailable warrant also was issued as per order dt. 2.05.01 and inspite of that prosecution could not produce that said witness. So far the said Kuddus Ali has not come to depose and so far the P.W.1 stated that Kuddus told him about the robbery of cash 6 amount so the evidence of P.W.1 has become hearsay evidence in the eye of law. Thus, the evidence of P.W.1 cannot be relied upon from the above point of view also. Admittedly, the P.W.2 stated that he does not know what happened actually after such payment.
In view of the above circumstances I find that practically there is no incriminating and satisfactory evidence to lead this court for holding the accused guilty."
The disciplinary authority, however, relying on the evidence of the aforesaid witnesses held that the robbery was committed by the respondent No. 1 on 4th July, 2000 and the charge framed against the said Constable has been proved beyond any shadow of doubt. Undisputedly, the complainant did not appear and depose before the Enquiry Officer. There is no explanation with regard to the delay in lodging the F.I.R. Instead of lodging the complaint with the local police station within a shortest possible time, most surprisingly, the complainant took about 72 hours for lodging the formal F.I.R. The aforesaid delay in lodging the formal F.I.R. should have been taken into consideration seriously by the disciplinary authority while arriving at the final conclusion in respect of the respondent No. 1. The charge of robbery in the instant case could not be established beyond any shadow of doubt even in absence of the complainant.
The said complainant did not appear before the criminal court to adduce evidence in order to prove his complaint. The disciplinary authority unfortunately, did not consider the 7 specific findings of the learned Magistrate in the criminal case that the P.Ws. totally contradicted the version of the complainant on material points and their evidence cannot be treated to be trustworthy. The specific findings of the learned Magistrate in this regard are set out hereunder:
"Thus, the P.W.1 as well P.W.2 totally contradicted the version of the complainant on material points and thus, their evidence has become untrustworthy."
In the case of Roop Singh Negi vs. Punjab National Bank & Ors. reported in (2009) 2 SCC 570, Hon'ble Supreme Court held that mere production of documents is not enough and the contents of documentary evidence has to be proved by examining witnesses. The relevant observations of the Supreme Court in the aforesaid case are set out hereunder:
"23.......................................The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."8
We fail to understand how the Constable namely, the respondent No. 1 herein was adjudged guilty by the disciplinary authority when the vital witness namely, the complainant did not appear before the Enquiry Officer to adduce evidence in support of his complaint.
The contradictory evidence adduced by the P.Ws. before the criminal court should have been appreciated by the disciplinary authority while passing the final order. Most unfortunately, the disciplinary authority did not discuss the findings of the learned Magistrate and held the Constable concerned guilty ignoring the specific findings of the criminal court. The employee concerned namely, the respondent No. 1 was acquitted in the criminal trial before issuance of the final order by the disciplinary authority. Therefore, the disciplinary authority while passing the final order and holding the employee concerned guilty of the charge should have considered the specific observations and findings of the learned Magistrate especially when the criminal case was also initiated against the said employee on identical charge arising out of the same set of facts. The disciplinary authority also did not refer to and rely on any document and/or evidence which were not taken into consideration by the learned Magistrate while deciding the criminal case although the said disciplinary 9 authority held the Constable concerned guilty ignoring the specific findings and order of acquittal passed by the learned Magistrate.
Since both the criminal and departmental proceedings initiated against the respondent No. 1 are based on the identical charge arising out of the same set of facts, the findings of the learned Magistrate in respect of the said charge must prevail upon the disciplinary authority as the findings of the judicial authority should prevail upon the findings of the disciplinary authority on a particular issue.
The Constable concerned namely, the respondent No. 1 herein was not held guilty in the criminal case and the learned Magistrate acquitted the said Constable by a judicial pronouncement. The disciplinary authority in an unjust and unfair manner held the Constable concerned guilty and dismissed him from service even in absence of any evidence which was not considered earlier by the learned Magistrate while deciding the criminal case. The disciplinary authority unfortunately failed to show due regards to the findings of the judicial authority which we strongly disapprove.
10The identical issue was also considered by a Division Bench of this Court in the case of State of West Bengal & Ors. vs. Sankar Ghosh & Anr. reported in 2010 Lab.I.C. 3791 (Cal) wherein the Division Bench observed:
"12. In the present case, when both the criminal and departmental proceeding initiated against the respondent No. 1 were based on identical set of facts and on the identical charge regarding involvement of the respondent No. 1 in connection with a dacoity case, the findings of the learned Additional Sessions Judge must prevail upon the Disciplinary Authority.
13. The learned Tribunal relying on the findings of the learned Additional Sessions Judge, therefore, rightly held that the respondent No. 1 herein should be reinstated in service as the findings of the judicial authority should prevail upon the findings of the Disciplinary Authority."
In the case of G.M. Tank vs. State of Gujarat & Ors. reported in (2006) 5 SCC 446, Hon'ble Supreme Court observed:
"20.......................................The appellant has been honourably acquitted by the competent court on the same set of facts, evidence and witness and, therefore, the dismissal order based on the same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice."
Since the Constable concerned namely, the respondent No. 1 was not held guilty in the criminal case by the learned Magistrate while adjudicating the identical charge arising out of the same set of facts, the learned Tribunal refused to uphold the decision 11 of the disciplinary authority as well as the appellate authority in respect of the said respondent No. 1.
Upon considering the materials and evidence on record and also considering the principles already settled by the Supreme Court the learned Tribunal directed the disciplinary authority to reinstate the said respondent No. 1 in service. We do not find any illegality and/or infirmity in the aforesaid decision of the learned Tribunal. The learned Tribunal, in our opinion, has considered all the issues raised before it and decided the same strictly in accordance with law. Therefore, we find no reason to interfere with the impugned judgment and order passed by the learned Tribunal.
In the aforesaid circumstances, we affirm the impugned judgment and order passed by the learned Tribunal and direct the petitioners herein to comply with the directions of the learned Tribunal as early as possible but positively within a period of two weeks from the date of communication of this order. This writ petition, therefore, stands dismissed and the interim order passed earlier by this court also stands vacated. In the facts of the present case, there will be no order as to costs.
12Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.
[PRANAB KUMAR CHATTOPADHYAY, J.] ASHOKE KUMAR DASADHIKARI, J.
I agree.
[ASHOKE KUMAR DASADHIKARI, J.]