Calcutta High Court (Appellete Side)
Transcriber : Nandy vs Ram Ratan Kuwar on 15 July, 2022
15.07.2022
WPST 29 of 2022
Court : 04
Item : 09
Matter
Status
: WPST
: DO
The State of West Bengal & Ors.
Transcriber : nandy Vs.
Ram Ratan Kuwar
Mr. Jahar Lal De, Advocate
Mr. Shamim Ul Bari, Advocate
......for the Petitioners/State
Mr. Supratim Dhar, Advocate
Mr. Kunal Ganguly, Advocate
Mr. Dhananjay Nayak, Advocate
Mr. Tirupati Mukherjee, Advocate
......for the Respondent
The case has a checkered history. The
litigation ensued in the year 2005, when a
disciplinary proceeding was initiated on the basis of
a show-cause issued upon the respondent for
alleged dereliction of duty and unauthorized
absence. The disciplinary proceeding culminated in
an order of dismissal from service and the said order
was duly affirmed by the appellate authority on
March 28, 2006. Immediately the order of the
disciplinary authority was assailed by the
respondent before the Tribunal in OA 1902 of 2006.
The said tribunal application came to be disposed of
after a gap of nearly three years i.e. on August 18,
2009 and interestingly, the order disposing of the
said tribunal application would reveal that the
disciplinary authority was directed to reconsider the
punishment in the event, the employee is acquitted
from criminal charges. It would be profitable to quote
the relevant excerpts of the said order which runs
thus:
"Accordingly, we dispose of the application with a direction
upon the disciplinary authority to reconsider the punishment of the
petitioner, if and when, the petitioner shall produce the copy of order
of the Criminal Court and, in the event, the disciplinary authority shall
examine the judgment and following the position of law, shall dispose
of the same in accordance with rule."
Obviously, such observation was made at a
relevant point of time when the criminal proceeding
launched on the selfsame charges, was pending
before the learned Magistrate. Since, liberty was
granted to the respondent to make an application
after his acquittal from a criminal case, such
application was made when the Judicial Magistrate,
Third Court, Asansol in G.R. Case No. 650 of 2005
acquitted the respondent as the prosecution
miserably failed to prove the charges against the
respondent. Since the said application for
reconsideration was kept pending by the authority,
the Tribunal was moved with OA 771 of 2014
seeking direction upon the said authority to take a
decision within the timeframe. The Tribunal
disposed of the said proceeding directing the
consideration and disposal of the said application
within eight weeks from the date.
Pursuant to the said order, the concerned
authority rejected the said application on August 8,
2014 holding that the moment the employer has lost
confidence in the employee as he committed a theft
being a member of the Disciplined Force, the
quantum is immaterial and the employer would not
allow to tarnish the reputation of the department in
any manner. The said decision was challenged
before the Tribunal in OA 1189 of 2014 and by the
impugned order the Tribunal not only set aside the
said decision of the authority taken on August 17,
2014 but directed reinstatement of the respondent
with all consequential benefits. However, the
authority was directed to revisit its decision within a
stipulated time.
Mr. De, learned Advocate appearing for the
Petitioner/State submits that there is no infirmity and
illegality in the decision dated August 27, 2014 by
the competent authority as the manner of proving
the guilt in a criminal proceeding as well as
departmental proceeding are distinct and stands on
different pedestal. Mr. De further submits that the
moment in an earlier round of litigation, the order of
the disciplinary authority is not interfered with, it
cannot be reopened by granting a leave against the
extant Regulation. He further submits that the
Disciplined Force cannot be equated with the
departments of the Government as any dereliction
or departure from duty by a responsible officer of the
Disciplined Force has always been viewed seriously
and the punishment varies.
On the other hand, Mr. Dhar, learned
Advocate appearing for the Respondent submits
that the moment the decision of the disciplinary
authority was kept in abeyance in terms of the leave
granted in the earlier round of litigation, it cannot be
construed to have reached finality. Furthermore, the
authority cannot have taken a shelter on the charges
which could not be proved in a criminal case and,
therefore, there is no infirmity in the direction passed
by the Tribunal for reinstatement.
As indicated above, the parties have been
litigating since the year 2005 when a show-cause
notice was issued on the ground of theft of money
as well as unauthorized absence. The said
proceeding culminated into an order of dismissal
which was challenged before the Tribunal. However,
the Tribunal at the first round of litigation found that
the criminal case was pending on the selfsame
charges i.e. the charges relating to theft and,
therefore, it would not be advisable that any final
decision is required to be taken on the procedure
and the decision taken by the disciplinary authority
at such stage. The Tribunal was aware of the fact
that the decision of the criminal Court may have
some impact on the disciplinary proceeding and
since it was pending at the relevant point of time, no
decision should be taken obviously for the reason
that the manner of proving the charges in a criminal
case and departmental proceeding are distinct and
separate. However, the Court uses the term that for
the present no interference is called for because of
the pendency of the criminal case, it does not
foreclose the right of the respondent to reagitate the
issue after the order of acquittal in the criminal
proceeding. The moment the application is made
annexing the copy of the judgment of the criminal
Court, the authority ought to have applied its mind
on the findings recorded in the judgment passed in
the criminal case in order to ascertain whether it was
an acquittal on technical ground or an honourable
acquittal.
It goes without saying that in the event of a
criminal case and a departmental proceeding are
launched on the same charges and the manner of
proof depends upon the same sets of documentary
evidence, same set of witnesses, the honourable
acquittal will have some impact on the disciplinary
proceeding and the decision taken therein. The
authority ought not to have squeezes its
consideration taking a plea of a Disciplined
Organization and accepting the guilt of theft when
the said findings has not been proved in the criminal
proceeding and the respondent was acquitted
therein.
The distinction as indicated hereinabove, is
required to be considered upon reading the
judgment of the criminal Court and the authority
ought to have arrived at the independent findings on
all the facets of the charges levelled against the
respondents and should not have restricted its
consideration on one of such charges which is
otherwise not proved in a criminal case.
The Tribunal assumes jurisdiction in relation to
the cause of action pleaded in the application and
the subject matter of challenge before the Tribunal
was the order of the said authority dated August 27,
2014 and, therefore, should not have expanded its
horizon to such reliefs which are depend upon
outcome of the decision to be taken on revisitation
of the said order. The moment the Tribunal directed
the authority to revisit its order, it should not have
passed an order directing the reinstatement of the
petitioner which appears to us, have been passed in
excess of the jurisdiction in relation to subject matter
of dispute.
We thus set aside the portion of the impugned
order by which the Tribunal directed the
reinstatement of the respondent with all
consequential benefits and the remaining portion of
the order is un-interfered with.
Since the matter is remitted to the authority for
revisitation, such authority who passed the order,
shall take a decision within four weeks from the date
of communication of this order independently
without being swayed by any observations made in
the impugned order as well as in the instant order.
With these observations, the writ-petition
being WPST 29 of 2022 is disposed of.
(Harish Tandon, J.)
(Shampa Dutt (Paul), J.)
