Calcutta High Court
Pranab Kumar Adhikary vs The State Of West Bengal & Ors on 17 June, 2021
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
PRESENT:
HON'BLE JUSTICE SUBRATA TALUKDAR
AND
HON'BLE JUSTICE HIRANMAY BHATTACHARYYA
A.P.O. No. 45 of 2021
With
W.P.O. No. 96 of 2019
W.P.O. No. 203 of 2019
IA No: GA/2/2020 (Old No.GA/297/2020)
Pranab Kumar Adhikary
-Vs.-
The State of West Bengal & Ors.
For the Appellant : Mr. Pratik Dhar
For the Respondents : Mr. Sandipan Banerjee
Mr. Ankit Surekha
Heard on : 20/04/2021
Judgment on : 17/06/2021
Subrata Talukdar, J:
Under challenge in this appeal is the common judgement and order
dated 20th December 2019 of the Hon'ble Single Bench or, the Hon'ble First
Bench, finally deciding the two writ petitions filed by the appellant being WP
96 of 2019 (WP-I) and WP 203 of 2019 (WP-II).
The Hon'ble First Bench, inter alia, held that the appellant was
charge-sheeted by the Howrah Municipal Corporation (HMC) to face a
Departmental Enquiry (DE) pertaining to possession of assets
disproportionate to his known sources of income. The Hon'ble First Bench
held that such a charge under the Prevention of Corruption Act, 1988 (for
short the PC Act) pre-supposes an act or omission in relation to his
employment and hence the Howrah Municipal Corporation was wholly and
completely justified in commencing departmental proceedings, inter alia, by
issuing the charge-sheet in question.
The Hon'ble Single Bench was also of the view that the judgement and
order of a Hon'ble Division Bench of this Court In Re: Amit Biswas Vs. State
of West Bengal and others as reported in 2007 2) LLN 852 does not apply to
the facts connected to the appellant, since the criminal charge In Re: Amit
Biswas (supra), arose out of a matrimonial dispute connected to Section
498A of the Indian Penal Code (IPC) whereas, the charge against the
appellant is under the PC Act.
Therefore, the Hon'ble Single Bench came to the finding that in view of
the distinct nature of the two charges(supra), the HMC was well within its
rights as the employer to departmentally proceed against the appellant/ the
writ petitioner.
WP-II stood thus dismissed.
In view of the dismissal of WP-II, the Hon'ble Single Bench also
dismissed WP-I by directing the HMC to conclude the DE as expeditiously as
possible but, not later than a period of six months from the date of
communication of a copy of its order (dated the 20th of December, 2019).
While directing as above, the Hon'ble Single Bench recognized the accepted
jurisprudence relating to Service Law that a delinquent (viz. the appellant)
cannot be kept under suspension indefinitely. However, the Hon'ble Single
Bench was of the view that since the rationale behind continuing and
concluding the DE against the appellant was sustained by the judgement
and order dismissing WP-II, the analogous writ petition challenging the
suspension of the appellant/ the writ petitioner must yield to the
requirement of concluding the DE.
The Hon'ble Single Bench took the further view that the prejudice
complained of by the appellant/ the writ petitioner arising out of his
continuous suspension from service stood partially ameliorated in view of
the raise in his subsistence allowance from fifty to seventy percent by reason
of the West Bengal Municipal Employees' (Classification, Control, Appeal
and Conduct) Rules, 2010 (for short the 2010 Rules).
Thus, WP-I stood also dismissed.
Mr. Pratik Dhar, Ld. Senior Counsel appearing for the appellant,
argues purely on the point of the legality of continuing the appellant's
suspension for long without initiating a departmental proceeding, for
consideration by this Appellate Bench. The crux of Mr. Dhar's submissions
center around the ratio of the Hon'ble Supreme Court's Judgement In Re:
Ajay Kumar Choudhary Vs. Union of India and another as reported in 2015
7) SCC 291.
It is submitted by Ld. Senior Counsel that the law qua suspension is
now trite that the subsistence of a suspension order shall not extend beyond
three months of the date of its imposition, if, within this period the
Memorandum of Charges/ Charge-Sheet (for short MOC/CS) is not served
on the delinquent officer/ employee. However, in the event the MOC/CS has
been served within the said period of three months, the suspension can only
be extended by passing a reasoned order.
Ld. Senior Counsel submits that the appellant is facing a criminal
proceeding in connection with Anti-Corruption Branch(ACB) Case No. 4 of
2015 dated the 14th of August 2015 registered under Sections 7 and 13(2) of
the PC Act 1988 read with the relevant Sections of the Indian Penal Code
(IPC). The criminal trial connected to the said ACB case has been initiated
before the Ld. Additional District and Sessions Judge, Bench-II, Bichar
Bhavan, Kolkata. The appellant is on bail.
It is argued that in connection with the said ACB case the appellant
was placed under suspension by his Disciplinary Authority (for short DA)
vide order dated 25th of August 2015. The order of suspension, inter alia,
states that since the appellant was detained in custody for a period
exceeding 48 hours in connection with the said ACB case, under the
relevant provisions of the Regulations controlling the service of the
appellant, the appellant stands suspended with effect from the date of his
detention pending departmental enquiry. The said order of suspension dated
25th August 2015 further provides that the appellant will be entitled to
receive subsistence allowance as per the applicable rules. The said order of
suspension also provides that the Memorandum along with the Articles of
Charges connected to the DE will be issued expeditiously.
It is argued that the appellant was served with the MOC/CS after the
completion of nearly four years of his suspension. The MOC/CS was issued
on the 3rd of April 2019 by the DA when the appellant was still under
suspension on and from the 4th of August 2015. The appellant replied to the
MOC/CS on the 13th of April 2019 and, in the interregnum between the said
order of suspension and the issue of the MOC/CS, the appellant filed
repeated representations before the DA seeking revocation of his
suspension.
Mr. Dhar submits that it is no more res integra that the suspension of
the appellant could not have been continued beyond ninety days without
issuing a MOC/CS. In any view of the matter, the DA is required to pass a
reasoned order extending the suspension. It is submitted that no reasoned
order extending the suspension of the appellant has been served on his
client. Furthermore, the MOC/CS was issued after nearly four years of the
order of suspension. It is therefore argued that the facts made out by the
appellant are pari materia to the facts as discussed In Re: Ajay Choudhary
(supra). Thus, the appellant is entitled to an immediate revocation by Court
of his suspension.
It is submitted that therefore the direction of the Hon'ble Single Bench
to conclude the departmental proceedings is ex facie erroneous since such a
direction violates the ratio laid down In Re : Ajay Choudhary. The principle
as enunciated In Re : Ajay Choudhary does not distinguish between criminal
proceedings such as one initiated under Section 498A IPC and another
under the PC Act. The ratio of In Re : Ajay Choudhary is intended to apply
across-the-board to all delinquents who are facing criminal proceedings and
are also under suspension pending a DE.
The judgement In Re : Ajay Choudhary is intended to apply as the law
of the land under Article 141 of the Constitution of India by seeking to
incorporate the principles relating to filing of a Charge-Sheet in a criminal
investigation to the conduct of a DE. The Hon'ble Apex Court has carved out
a principle that the period of 90 days as applied to filing of a Charge-Sheet
upon registration of a First Information Report (FIR) will equally apply to
filing a MOC/CS in a DE. The eligibility of an accused to claim the privilege
of bail upon expiry of the statutorily provided period of 90 days, shall
equally apply to a delinquent facing a DE following his suspension.
It is thus argued that in the event no MOC/CS is issued in furtherance
of the DE within the said period of ninety days, the delinquent shall be
entitled to lifting of his suspension order. In Re : Ajay Choudhary has
underscored the principle that in the event the suspension is to be
continued, the DA must record reasons for extending it and, in the absence
of reasons, the order of suspension is liable to be set aside.
Mr. Dhar therefore submits that the Hon'ble First Bench misapplied
itself by holding that the prejudice, if any, caused to the appellant qua his
order of suspension stood partially ameliorated simply by virtue of the raise
in the quantum of his subsistence allowance. Such conclusion cannot be
supported by legal authority. Ld. Senior Counsel reiterates that the
suspension of the appellant is continuing from August 2015 without the DA
adducing any reasons for extension of such suspension. It is also a matter of
record that the MOC/CS was not filed within the period of ninety days as
held In Re : Ajay Choudhary. It is strongly submitted that since the MOC/CS
was served on the appellant close to the expiry of nearly four years from his
suspension, the suspension cannot be continued and the appellant is
entitled to reinstatement in service.
Per contra, Mr. Sandipan Banerjee, Learned Counsel appearing for the
HMC, relies heavily on a judgement of the Hon'ble High Court of
Uttarakhand in Special Appeal No.576 of 2019, In Re: Naresh Kumar vs.
State of Uttarakhand and Others. Mr. Banerjee argues that the Hon'ble High
Court at Uttarakhand had, inter alia, correctly held that the principle
enunciated In Re: Ajay Choudhary requires to be applied apropo to the facts
of every individual case.
It is submitted that In Re: Naresh Kumar, the Hon'ble High Court has
attempted to notice the nature and effect of an order of suspension as well
as the impact of such order on public interest. It has been held by the
Hon'ble High Court that when the power to suspend is not found to be either
arbitrary or vindictive, it is for the employer to assess whether during the
pendency of the enquiry the concerned delinquent employee shall be entitled
to continue in office. It is submitted that the Hon'ble High Court has upheld
the salutary principle behind an order of suspension which permits the
employer to complete the DE without threat of interference with the evidence
by the charged employee.
Learned Counsel for the HMC therefore takes the stand that every
order of suspension must be judicially viewed from the angle of keeping the
concerned employee out of the range of committing any mischief whatsoever
qua the DE.
Such judicial perspective must also take into account the gravity of
the charges against the concerned employee. In the facts of this case, Ld.
Counsel for the HMC points out that the seizure of cash and other liquid
assets in the nature of fixed deposits etc. from the appellant is huge. The
factum of the seizure has not been questioned at all by the appellant except
to deny that the seizure had anything to do with the discharge of his service.
The appellant has replied to the MOC/CS taking the grounds:- (a) that the
seizure had taken place at a private place, viz. his wife's flat; (b) the
appellant had other sources of income apart from his service for which he
received consideration; and (c) no person other than the complainant and
the investigating officers of the ACB were present at the seizure.
Mr. Banerjee submits that having regard to the gravity of the
charges flowing from the enormous seizure of liquid assets attracting the
charge under the PC Act, it is in public interest that the appellant be kept
out of employment pending the end of the DE. Ld. Counsel for HMC takes
the point that the order of suspension dated 25th of August 2015 clearly
states that the suspension of the appellant takes effect from the date of his
detention in connection with the criminal case and, subsists during
pendency of the DE. Therefore, as correctly noticed by the Hon'ble Single
Bench, the DE being in motion already clearly casts its imprimatur on the
order of suspension.
It is submitted that the DE could not be proceeded with in the
interregnum since the criminal trial was pending. However, the DA has now
proceeded with the DE which the DA is entitled to so proceed with as per
law. The findings in the DE can be produced before this Court, if required. It
is pointed out that the prayer of the appellant to withdraw the order of
suspension alone at this stage without an end to the DE, is not
maintainable.
Replying to the submissions advanced by Mr. Banerjee, Mr. Dhar
submits that the judgement of the Hon'ble High Court In Re : Naresh Kumar
(supra) violates the time-honoured principles of judicial precedence flowing
from Article 141 of the Constitution of India. It is submitted that In Re:
Naresh Kumar may, at the highest, carry a persuasive value but, cannot
overrule the law laid down In Re: Ajay Choudhary. The judgement In Re:
Ajay Choudhary uniquely addresses the issue of an imperative lifting of a
suspension order upon the expiry of 90 days without a MOC/CS served on
the delinquent. The judgement has axiomatically noticed that a suspension
can be extended only with a reasoned order. Such a principle has not been
laid down in any of the previous decisions of any Constitutional Court in the
country. For the first time In Re: Ajay Choudhary, the Hon'ble Supreme
Court has now laid down such law.
In the light of the above discussion, the judgements as reported in
2017 SCC Online MAD 89, 2017 SCC Online J&K 284 and 2017 SCC Online
MAD 32835, relied upon by Mr. Dhar, stand distinguishable from the
present facts in as much as the overwhelming effect of Paragraph 22 of In
Re: Ajay Choudhary stands in favour of completing the DE by the employer
over and above revoking the suspension.
The judgement reported in 2019 (5) Gauhati Law Reports 744 is also
not applicable to the present case since the appellant was served with an
order of suspension to continue until further orders vide Rule 9 of the 1996
Rules. Therefore, the continued suspension of the appellant cannot be said
to be in violation of his service rules. Moreover, the appellant had taken the
first step to refute the allegations made against him in the MOC/CS dated
the 3rd of April 2019 by filing a reply on the 13th of April, 2019.
Finally, Mr. Dhar has relied upon 2020 SC Bombey 6131. At
Paragraph 10 of the citation (supra), the Hon'ble Bombay High Court left the
issues, including the delayed drawing up of a charge-sheet and continuance
of the order of suspension, to be decided in a fresh judicial review and,
such arrangement was found to be in consonance with In Re: Ajay
Choudhary.
In view of the closure brought to the facts of the present case by
permitting the DE to conclude the issues, the above referred decision of the
Hon'ble High Court at Bombay also stands distinguished.
Mr. Banerjee, Ld. Counsel for HMC, further draws the attention of this
Court to the judgements reported in 1994 (4) SCC 126, 1996 (3) SCC 157
and 1997 (4) SCC 1 underscoring the principle that qua a Charge of
embezzlement of funds, the public interest would be better served if the DE
is concluded without interfering in the order of suspension.
Having heard the parties and considering the materials placed, this
Court must now notice that In Re: Ajay Choudhary intended to chalk out a
procedure whereby the rights of a suspended employee to life and to a
speedy trial qua a DE have been balanced with the obligations imposed on
his employer. Therefore, the Hon'ble Apex Court, at Paragraph 20 of In Re:
Ajay Choudhary (2015) 7 SCC 291, inter alia, held that though extrapolating
the quintessence of the proviso to Section 167(2) CrPC, 1973 to moderate
suspension orders in cases of DEs, such extrapolation stand qualified by the
observations at Paragraph 18(8) of the said judgement. Paragraph 18(8)
reads as follows:-
"18(8)Ultimately, the Court has to balance and weigh the
several relevant factors- „balancing test‟ or „balancing
process‟ - and determine in each case whether the right to
speedy trial has been denied in a given case."
And again at Paragraph 18(9), the Hon‟ble Apex Court has opined as
follows:-
"(9) Ordinarily speaking, where the court comes to the
conclusion that right to speedy trial of an accused has been
infringed, the charges or the conviction, as the case may be,
shall be quashed. But this is not the only course open. The
nature of the offence and other circumstances in a given case
may be such that quashing of proceedings may not be in the
interest of justice. In such a case, it is open to the court to
make such other appropriate order-including an order to
conclude the trial within a fixed time where the trial is not
concluded or reducing the sentence where the trial has
concluded-as may be deemed just and equitable in the
circumstances of the case."
Accordingly, the definite directions at Paragraph 21 of In Re: Ajay
Choudhary follow:-
"21. We, therefore, direct that the currency of a suspension
order should not extend beyond three months if within this
period the memorandum of charges/charge-sheet is not
served on the delinquent officer/employee; if the
memorandum of charges/charge-sheet is served, a reasoned
order must be passed for the extension of the suspension. As
in the case in hand, the Government is free to transfer the
person concerned to any department in any of its offices
within or outside the State so as to sever any local or
personal contact that he may have and which he may
misuse for obstructing the investigation against him. The
Government may also prohibit him from contacting any
person, or handling records and documents till the stage of
his having to prepare his defence. We think this will
adequately safeguard the universally recognised principle of
human dignity and the right to a speedy trial and shall also
preserve the interest of the Government in the prosecution.
We recognise that the previous Constitution Benches have
been reluctant to quash proceedings on the grounds of delay,
and to set time-limits to their duration. However, the
imposition of a limit on the period of suspension has not been
discussed in prior case law, and would not be contrary to the
interests of justice. Furthermore, the direction of the Central
Vigilance Commission that pending a criminal investigation,
departmental proceedings are to be held in abeyance stands
superseded in view of the stand adopted by us."
However, at Paragraph 22 the Hon'ble Apex Court has finally held that
so far as the facts of the present case are concerned, the Appellant has now
been served with a Charge-Sheet and therefore, these directions may not be
relevant to him any longer. It shall be though open to the appellant to
challenge his continued suspension in any manner known to law - such
challenge being obviously subject to judicial review. Paragraph 22 reads as
follows:
"So far as the facts of the present case are concerned, the
appellant has now been served with a charge-sheet, and,
therefore, these directions may not be relevant to him any
longer. However, if the appellant is so advised he may
challenge his continued suspension in any manner known to
law, and this action of the respondents will be subject to
judicial review."
In the facts of the present case too, the DE has commenced with the
issuance of the MOC/CS on the 3rd of April, 2019. The appellant has taken
his first step to participate in the DE by filing his reply on the 13th of April,
2019.
The appellant, as allowed by law vide Paragraph 22 of In Re: Ajay
Choudhary (supra), challenged his suspension by filing WP-I. However, such
challenge was nearly four years after his suspension on the 14th of August,
2015 with WP-I being filed in February, 2019. Thereafter, the appellant filed
WP-II challenging the DE.
Therefore, standing at the present junction of facts, the appellant's
case is pari materia to the exception carved out at Paragraph 22 of In Re:
Ajay Choudhary. Any judicial review of his order of suspension being
coterminous with a continuing DE, ought to be in favour of the former
yielding to the latter and, such has been finally decided by the Hon'ble
Single Bench. This Court is accordingly of the considered view that contrary
to arguments advanced by Mr. Dhar, the judgement and order of the Hon'ble
Single Bench dated 20th December, 2019 and presently under appeal, does
not fall foul of In Re: Ajay Choudhary.
Accordingly, this Court finds the reasoning offered by the judgement
and final order dated 20th December, 2019 of the Hon'ble Single Bench
directing the employer to complete the task of enquiring into the charges of
accummulation of assets disproportionate to the appellant's known sources
of income to be acceptable. This Court also does not find any flaw with the
reasoning offered by the Hon'ble Single Bench that a DE emanating from a
matrimonial proceeding is distinguishable from one under the PC Act.
At the same time, while agreeing that the test of 'balance‟ as laid
down at Paragraph 18(8) of In Re: Ajay Choudhary (supra) leans heavily at
this point of time in favour of completing the DE rather than lifting the
order of suspension, this Court is at variance with the finding arrived at by
the Hon'ble Single Bench that with the raise in his subsistence allowance
from 50% to 75%, the grievances of the appellant stand partially
ameliorated. To the mind of this Court, the effect of such partial
amelioration may be more financial than legal and, cannot make out a case
for continuing the suspension of the appellant on this reason alone, without
a DE in place.
Furthermore, on a complete interpretation of Rule 9 under Chapter IV
of the HMC Officers (Other Than Those Appointed by the Mayor-in-Council)
and Employees' (Classification, Conduct, Control and Appeal) Regulations,
1996 (for short the 1996 Regulations) and, particularly Rule 9(3) thereof, the
suspension of the appellant shall be deemed to remain in force pending the
departmental enquiry. Rule 9(3) reads as follows:-
"9. (1) The appointing authority or any authority to which it is
subordinate may place a Corporation Officer or employee
under suspension :-
(a) Where a disciplinary proceeding or departmental
enquiry against him is contemplated or is pending, or
(b) Where a case against him in respect of a criminal
offence is under investigation or trial.
....................................
(3) Corporation employee who is detained in custody for a
period exceeding 48 hours under any law preceding for
preventive detention or as a result of a proceeding either on a
criminal charge or otherwise, shall be deemed to have been
suspended by an order of the appointing authority, w.e.f. the
date of his detention and shall remainder suspension until
further orders (emphasis supplied). A Corporation employee
who is under going a sentence of imprisonment of criminal
case has been registered by the police against a Corporation
employee under section 304(6) of the Indian Penal Code
regarding dowry death, shall also be dealt with in the same
manner, pending a decision in the disciplinary action to be
taken against him.
..............."
This Court is therefore of the view that the stand taken by Ld. Counsel
for HMC deserves to be favourably considered in as much as the order of
suspension issued against the appellant is required to be construed to be
subsisting until further orders pending the DE. It needs to be iterated that
while suspending the appellant, the DA took care to notice both the aspects
of a deemed suspension following custodial detention arising out of a
criminal charge, as also such suspension being in aid of a DE.
In the backdrop of the above discussion, it needs no clarity that with
the suspension permitted to continue until further orders vide Rule 9(3) of
the 1996 Rules (supra), there could be no requirement on the part of the DA
to pass apropo reasoned orders extending the suspension. To the further
mind of this Court the definite directions at Paragraph 21 of In Re: Ajay
Choudhary would cease to apply having regard to the pari materia factual
situation referred to at Paragraph 22 of the same judgement arising out of a
DE in motion. Therefore, this Court is of the view that having regard to the
admitted fact that the DE has proceeded against the appellant, the balance
of convenience now lies in concluding the DE within a stipulated period as
directed by the Hon'ble Single Bench.
In the light of the above discussion, this Court would pluck only a
solitary leaf out of In Re: Naresh Kumar for the purpose of underscoring the
point that the gravity of the charges levelled against the appellant of
amassing huge assets disproportionate to his known sources of income also
persuade this Court to affirm the judgement and order of the Hon'ble Single
Bench dated 20th December 2019 directing a time-bound completion of the
DE. This Court is also ad idem with the finding of the Hon'ble Single Bench
that it is the prerogative of the employer to enquire into the charges under
the PC Act against the appellant.
Further, this Court strikes down the reasoning of the Hon'ble Single
Bench that by reason of the enhanced suspension allowance, the grievances
of the appellant stood partially ameliorated. Such reasoning is not apropo
the legal tests to be applied to an order of suspension and therefore, to the
above extent, the findings of the Hon'ble Single Bench are found to be
unsustainable.
On a cumulative assessment of all points as discussed above, this
Court is not required to compare the precedential correctness of In Re:
Naresh Kumar apropo In Re: Ajay Chaudhury, except to respectfully observe
that both revolve in their respective factual orbits.
The respondents/HMC shall now conclude the departmental enquiry
as directed by the Hon'ble Single Bench.
A.P.O. No. 45 of 2021 with W.P.O. No. 96 of 2019 with W.P.O. No.
203 of 2019 with IA No: GA/2/2020 (Old No.GA/297/2020) stand
accordingly disposed of.
There will be no order as to costs.
Parties shall be entitled to act on the basis of a server copy of the
order placed on the official website of the Court.
Urgent Xerox certified photocopies of this judgment, if applied for, be
given to the parties upon compliance of the requisite formalities.
I agree.
(Hiranmay Bhattacharyya, J.) (Subrata Talukdar, J.)
