Bhubaneswar Das vs Union Of India & Ors
2021 Latest Caselaw 4759 Cal

Form J(2)    IN THE HIGH COURT AT CALCUTTA
              Constitutional Writ Jurisdiction
                       Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri

                     WPA/17108/2004

                   Bhubaneswar Das
                        -Versus-
                  Union of India & Ors.

For the Petitioner            : Mr. Kumar Jyoti Tewari,
                                Mr. Biplab Guha.

For the Union of India        : Mrs. Chandreyi Alam.

Heard & Judgment On           : 13th September, 2021.


Bibek Chaudhuri, J.-

     This is third round of litigation at the instance of the
petitioner by invoking Article 226 of    the Constitution of
India.
     Suffice it to mention that the writ petitioner was a
constable in Central Reserve Police Force.    Sometimes in
the year 1991, he was posted at Group Centre (hereafter
GC in short) at Durgapur. On 12 th December, 1991, he was
suspended from service on the allegation that he took bribe
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from two persons in lieu of ensuring jobs of constable in
C.R.P.F.
      The order of suspension was followed by initiation of
disciplinary proceeding. The Enquiry Officer found the writ
petitioner guilty under Article 1 of the charge. The report of
the   Enquiry   Officer   was   referred   to   the   Disciplinary
Authority who passed an order of removal from service
against the petitioner with effect from 19th January, 1993.
      The materials-on-record are explicit.      Previously, the
petitioner invoked the constitutional writ jurisdiction of this
Court by filing C.O. No. 3628 (W) of 1993 alleging, inter
alia, that the order of removal was passed without
jurisdiction or in violation of Section 11 of the Central
Reserve Police Force Act, 1949 (hereinafter described as the
said Act). It is pertinent to mention here that the said writ
petition was dismissed, however, a Coordinate Bench of this
Court passed the following order: -
      "However, it will be open to the petitioner to prefer an
appeal under Rule 28 of the said Rules, 1955.            For the
purpose of calculating the period within which such appeal
is to be filed, the period between the date of moving this
writ petition and the date of its disposal shall be excluded.
If, after exclusion of the said period, the appeal is not
within the time, the delay may be condoned, if sufficient
grounds is shown, and the appeal may be disposed of, in
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accordance with law on merits, within 3 months of making
such appeal."
     The petitioner accordingly filed statutory appeal before
the Appellate Authority.     The said appeal being dismissed
the instant writ petition is filed.
     It is submitted by the Learned Advocate for the
petitioner at the outset that the order passed by the
Enquiry Officer and subsequently followed by various
authorities up to the Disciplinary Authority were based on
surmise and conjectures.       The petitioner was removed on
the charge that he allegedly took bribe of Rs.24,000/- from
one Gopal Das and one Tarakeswar Kewat on condition that
he would ensure their service in the Force. It is submitted
by the Learned Advocate for the petitioner that there is
absolutely no evidence to the effect that the petitioner
accepted bribe from the above-named two persons.         It is
also submitted by the Learned Advocate for the petitioner
that 15 candidates were not considered for appointment in
the Force on the ground that they filed false academic
certificates.   Amongst them the above-named Gopal Das
and Tarakeswar Kewat were the two. Except the said two
persons all the candidates left.      However, the said Gopal
Das and Tarakeswar Kewat did not recuse their candidature
on the ground that they paid bribe to the writ petitioner
amounting to Rs.24,000/-.        This allegation prompted the
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superior officer of the Force to initiate a disciplinary
proceedings against the petitioner.
     It is submitted by the Learned Advocate for the
petitioner that nobody saw the petitioner to accept bribe
from the above-named two candidates.        He was falsely
subjected to disciplinary enquiry on the ground of his
repayment of a sum of Rs.11,000/-. It is contended by the
Learned Advocate for the writ petitioner that the petitioner
paid that amount under compulsion to secure his service.
Referring to a decision of the Hon'ble Supreme Court in the
case of Commissioner of Police, Delhi & Ors. -Vs.- Jai
Bhagwan reported in (2011) 6 SCC 376, it is submitted
by the Learned Advocate for the petitioner that a police
constable faced disciplinary proceeding on the allegation
made by a passenger that he took a sum of Rs.100/- as
bribe from the said passenger at 161 Airport, Delhi and on
the basis of such complaint a departmental proceeding was
initiated.   It was brought on record that the delinquent
constable returned the said amount of Rs.100/- to the
complainant. The Hon'ble Supreme Court in paragraph 15
was pleased to hold:-
      "15.      In the present case, although there is some
evidence that an amount of Rs.100/- was returned by the
respondent to the complainant but there is no such direct

and reliable evidence produced by the appellants in the

departmental proceedings which could clearly prove and establish that the respondent demanded and received an illegal gratification of the said denomination. It seems that the proof of taking such illegal gratification has been drawn from the evidence of returning of Rs.100/- to the complainant by way of a link-up".

It was further held by the Hon'ble Supreme Court in the above-mentioned report in paragraph 17 as hereunder:-

"17. In the absence of such a definite/clear proof supporting the case of the appellants it is difficult to draw a finding of taking illegal gratification by the respondent from the complainant. Therefore, as rightly held by the High Court the present case is a case of no evidence".

The learned counsel for the petitioner further refers to a report in the case of Narinder Mohan Arya -Vs.- United India Insurance Co. Ltd. and Others reported in (2006) 4 Supreme Court Cases 713 and submits that an employee cannot be subjected to disciplinary proceeding and should not be punished, either minor or major, on suspicion or presumption because suspicion or presumption cannot take the place of proof even in domestic inquiry. In the instant case, the petitioner was punished after departmental inquiry of removal from office. At the risk of repetition there is absolutely no evidence that he accepted the bribe and the decision taken by various authorities

including the disciplinary authority was based on suspicion and / or presumption.

Last but not the least, the learned counsel for the petitioner refers to Rule 27 of the Central Reserve Police Force Rules, 1955 and submits that the commandant is the disciplinary authority of the constables and enrolled followers. In the instant case the order of removal being finally passed by Addl. D.I.G.P., the same is per se illegal.

The learned counsel for the Union of India, on the contrary, draws my attention to paragraph 27 of the affidavit-in-opposition where it is specifically contended that as per the provisions contained in Government of India, MHA Letter no.1/45027/I/84DO(Pers.II) dated 17 th January, 1984 as incorporated in Appendix-V to GC& Bn Officers' Manual, the Additional Deputy Inspector General of Police in the Central Reserve Police Force shall be the Commandant of Respective Group Centre and shall continue to perform the functions and exercise the powers vested in a Commandant under the Central Reserve Police Force Act, 1949. The said memorandum is also annexed with the written notes of argument filed on behalf of the respondents.

In view of such office order, this Court has no other alternative but to hold that the final order passed by the Addl. D.I.G.P. G. C., Durgapur is not an order beyond his

authority under Rule 27 of Central Reserve Police Force Rules.

On factual score indisputably two candidates namely Gopal Das and Tarakeswar Kewat did not want to leave and stuck to their candidature on the ground that they gave bribe of Rs.24,000/- to the petitioner. They identified the writ petitioner as the person who accepted bribe. They also deposed during inquiry proceeding against the delinquent i.e., the petitioner. Therefore, payment of bribe and acceptance thereof is proved by direct evidence during disciplinary inquiry against the writ petitioner and on factual score ratio of the decision in the case of Jai Bhagwan (supra) is not applicable in the instant case. On the same reason, I cannot but hold that the orders passed by the Inquiry Officer and affirmed by the Disciplinary Authority as well as Appellate Authority were passed on proof of acceptance of bribe by the petitioner and therefore, there is no reason to interfere with the impugned administrative decisions.

In view of the aforesaid, I do not find any merit in the instant writ petition and accordingly, the same is dismissed on contest, however, without costs.

However, admissible dues, if any, be paid to the petitioner. Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties on the usual undertakings.

(Bibek Chaudhuri, J. )