The State Of West Bengal & Ors vs Gayanath Roy Alias Karuna Sindhu ...
2023 Latest Caselaw 5774 Cal

             IN THE HIGH COURT AT CALCUTTA
               Constitutional Writ Jurisdiciton
                       Appellate Side
  Present:
  The Hon'ble Justice Debangsu Basak
                     And
  The Hon'ble Justice Md. Shabbar Rashidi
                     WP.ST 508 of 2013
               The State of West Bengal & Ors.
                               Versus
          Gayanath Roy alias Karuna Sindhu Roy


For the Writ
Petitioners/State    : Mr. Tapan Kumar Mukherjee, Sr
                                           Adv. & A.G.P.
                     : Mr. Pinaki Dhole, Adv.
                     : Mr. Somnath Naskar, Adv.

For the respondent : Md. Nure Zaman, Adv.

: Mr. Jahangir Badsha, Adv.

Heard on             : August 14, 2023
Judgment on          : August 31, 2023


Md. Shabbar Rashidi, J.:

1. The writ petition is in assailment of the judgment and

order passed on July 04, 2013 in OA No. 1275 of 2012 by

the West Bengal Administrative Tribunal at the behest of

the State.

2. The petitioner was a police constable. The

departmental proceeding being Proceeding No. 110 of

1999 was started against the petitioner upon an

allegation that he was directly involved in commission of

murder of one Amarendra Narayan Roy under Ratua P.S.

within the district of Malda in the night of February 09,

1994 resulting in the institution of Ratua P.S. Case No.

09/1994 dated February 09, 1994 under Section

456/302/329/34 of the Indian Penal Code, 1860 and

25/27 of the Arms Act, 1959. The petitioner also faced

certain minor charges of being absent from duty on

February 08, 1994 and February 09, 1994 without any

information and due permission from the authorities.

Upon conclusion of the enquiry, the petitioner was served

with a show-cause notice intimating him the proposal for

punishment and ultimately final order of punishment in

the form of dismissal from service was passed by the

disciplinary authority wherein the order of disciplinary

authority was upheld.

3. The petitioner was acquitted in the criminal case

and upon such acquittal, he preferred an application

before the authority for setting aside his dismissal order

together with a prayer of reinstatement on September 21,

2010. It was contended that such application of the writ

petitioner was disposed of by the commissioner of police

in dismissal thereof without assigning any reasons.

Aggrieved by such dismissal of his representation, the

petitioner moved an application before the West Bengal

State Administrative Tribunal being OA 228 of 2011.

4. Upon hearing the Tribunal was pleased to set aside

the order of the Commissioner of Police directing it to

examine the Judgment of the Criminal Court and

thereafter take its reasoned decision if the petitioner was

unable to get any benefit out of the Judgment delivered

by the Criminal Court. In terms of the directions of the

Tribunal, the Commissioner of Police passed an order

rejecting the prayer of the petitioner on the ground that

order of discharge or acquittal of a police officer by Court

was not a bar to await punishment in a departmental

proceeding, in terms of Regulation 4 Chapter XIX of

Police Regulation Calcutta, 1968. Such order of the

commissioner of police was challenged by the petitioners

in OA 1275 of 2012 before the Tribunal resulting in the

impugned order.

5. By the impugned order, the Tribunal was pleased to

hold that the main charge against the petitioner was not

established during the enquiry and as such the petitioner

could not have been held guilty of such charge. In that

view of the fact, the Tribunal was of the view that the

dismissal of the petitioner from service was bad in law.

By the impugned order, the Tribunal went on to quash

the final order of the disciplinary authority, appellate

order as well as the order passed by the Commissioner of

Police on the representation made by the petitioner. The

authorities were directed to release all the admissible

retiral benefits of the petitioner together with any arrears

thereto.

6. The State of West Bengal has challenged the

impugned order on the ground that the Tribunal was not

justified in reappraising the entire evidence in the

departmental proceeding. The learned Tribunal, by the

impugned order had deposed of an application filed on

behalf of the private respondent challenging the reasoned

order passed by the Commissioner of Police on his

representation. Challenge to the final order passed by the

disciplinary authority and the appellate authority was

earlier heard by the Tribunal in the first round of

litigation in OA 228 of 2011. The Tribunal was not

justified in reopening the entire issue in the impugned

order and went on judicial review upon the order passed

by the Commissioner of Police. In support of his

contention, learned senior advocate for the petitioner

relied upon (2021) and 11 Supreme Court cases 321

(Union of India and others versus Dalbir Singh),

(2013) 2 Supreme Court Cases 610 (Union of India

and others versus P. Gunasearan), and 1995 6

Supreme Court Cases 750 (Union of India and another

versus B.C. Chaturvedi).

7. Relying upon (2014) 3 Supreme Court Cases 610

(State of West Bengal and others Shankar Ghosh),

learned advocate for the writ petitioner submitted that

even when the charges in the criminal case and the

departmental proceedings are same, there is no rule of

automatic reinstatement on acquittal by the criminal

Court. Learned senior advocate for the writ petitioner

also relied upon (2012) 9 Supreme Court Cases 685

(State NCT of Delhi versus Ajay Kumar Tyagi) for the

same proposition that exoneration in a criminal

proceeding would not ipso facto terminate a departmental

proceeding.

8. Relying on (1996) 7 Supreme Court Cases 509,

learned senior advocate for the writ petitioner/state

submitted that it is the exclusive domain of the

disciplinary authority to consider the evidence on record

and come to a conclusion that the charges were proved

or not. The Tribunal has no power to trench on the

jurisdiction to appreciate evidence and to arrive at its

own conclusion.

9. Learned senior advocate for the writ petitioners also

submitted that the private respondent was acquitted

from the criminal case but the same cannot be said to be

an honourable acquittal. On such proposition learned

senior advocate for the writ petitioner relied upon (2006)

5 SCC 446 (G.M. Tank versus State of Gujarat and

another, AIR (1964) Supreme Court 787 (R. P. Kapur

V. Union of India and Another) and (2013) 1 Supreme

Court cases 598 (Deputy Inspector General of Police

and Another versus S. Samuthiram).

10. On the other hand, learned advocate for the private

respondent has submitted that the departmental

proceeding and the criminal case were based on similar

set of facts. Acquittal in the criminal proceeding will

surely have a bearing on the outcome of the

departmental proceeding. In support of his contention,

learned advocate for the private respondent has relied

upon (1999) 3 SCC 679 (Capt. M. Paul Anthony versus

Bharat Gold Mines Ltd. and another.

11. Relying upon 2012 (2) Cal Law Journal (Cal) 245

(Nanigopal Majumdar versus State of West Bengal),

learned advocate for the private respondent has

submitted that the charges against him were not proved

in the departmental proceeding and the punishment

awarded to him was bad in law. Learned advocate for the

private respondent had also drawn our attention to Rule

8 (5) of Police Regulations of Calcutta and submitted that

the enquiring authority or the disciplinary authority

failed to take into consideration non-compliance of the

aforesaid rule in arriving at a conclusion of guilt of the

private respondent.

12. As noted, the private respondent was constable of

police serving under Calcutta Police. He faced a

departmental enquiry on the charges of being involved in

commission of a heinous crime like murder coupled with

lurking house trespass and housebreaking by night. He

was also charged with was undisciplined conduct and

dereliction of duties as he left the barrack without prior

intimation and due permission from the authorities. The

private respondent was also charged for not informing

the authorities regarding his implication in a criminal

case.

13. An enquiry was conducted and the enquiry officer,

by his report dated December 17, 1999 observed that

charge regarding undisciplined conduct and dereliction of

duties unbecoming of a member of the police force in that

he left his barrack on February 8, 1994 unauthorizedly,

without prior permission from the competent authorities

was established. The enquiry officer also held in his

report that the charged officer did not report anything to

the superior authorities as a member of the disciplined

force about the incident in connection with Ratua Police

Station Case No. 9 of 1994 was also proved beyond

doubt. The enquiry officer, however, withheld his findings

with regard to the charge regarding his involvement in

the criminal case until disposal of the criminal case.

14. The disciplinary authority, by a provisional order

dated April 02, 2004 directed the private respondent to

show cause as to why he shall not be dismissed from

service. By its final order dated August 08, 2001, the

disciplinary authority dismissed the private respondent

from service for gross misconduct unbecoming of a

member of disciplined force.

15. The private respondent carried an appeal against

such final order and the Appellate Authority, by its order

dated November 01, 2004 dismissed the appeal agreeing

with the final order passed by the disciplinary authority.

16. The private respondent was acquitted in Sessions

Trial No. 1 (4)of 2008 arising out of Ratua PS Case No. 9

of 1994 vide Judgment and Order passed therein on

March 29, 2010. Following such acquittal, the private

respondent preferred a representation on September 21,

2010 which was disposed of by a writing dated November

11, 2010.

17. The private respondent challenged the order of

dismissal of his representation in OA 228 of 2011 before

the West Bengal Administrative Tribunal which was

disposed by an order dated July14, 2011. The Tribunal

directed the Commissioner of Kolkata Police to consider

the representation of the respondent afresh along with

the judgment in criminal case. The Commissioner of

Kolkata Police, upon reconsideration in terms of the

directions of the tribunal, by his reasoned order dated

November 24, 2011 negated the prayer of the private

respondent for reinstatement.

18. The private respondent again approached The

Tribunal in OA 1275 of 2012 wherein, by the impugned

order, the Tribunal set aside the order of dismissal

holding that the main charge of being involved in a

criminal case was not established. The Tribunal held that

the respondent could not have been dismissed from

service on the basis of evidence gathered in the

departmental proceeding and consequently directed

payment of all the admissible retiral benefits to the

private respondent as if he had not been dismissed from

service.

19. The petitioner has come up with a case that the

tribunal exceeded its jurisdiction by re-evaluating the

evidence and coming to a finding at variance with that

arrived at by the disciplinary authority, appellate

authority as well as the Commissioner of Kolkata Police.

The Tribunal acted as an appellate body and passed the

impugned order upon evaluation of evidence collected in

course of departmental proceeding. The petitioner has

relied upon Rule 4 under Chapter XIX of the Police

Regulation of Calcutta which reads thus:

4. Discharge or acquittal not a bar to

departmental punishment. - An order of

discharge or acquittal of a police officer by

a Court shall not be a bar to the award of

departmental punishment to that officer in

respect of the same cause or matter.

20. The Tribunal directed reconsideration of the

representation of the respondent in the wake of his

acquittal in the criminal case holding that the charges in

the criminal case and in the departmental proceeding

were substantially similar. With the deepest of respect,

we are unable to endorse such view. Being implicated in

a criminal case and not informing the authorities of

involvement in a criminal case by a member of a

disciplined force are two different charges. An employee,

not to talk of a member of a disciplined force, is duty

bound, under the terms of the employment guided by

established rules, to intimate his superior authorities

regarding his involvement/implication in a criminal case.

No material has been brought forth to establish that the

respondent duly intimated the authorities about his

involvement in a criminal case. Rather, it transpires that,

such fact was discovered much after the initiation of the

criminal case, when the respondent was arrested in

connection with the criminal case and was thereafter put

under suspension.

21. The respondent was also facing a charge of

undisciplined demeanour on account of his unauthorized

absence from barrack and questionable conduct in

sending his leave application to the authorities.

22. Be that as it may, the respondent's acquittal in the

criminal case, ipso facto did not afford him a vested right

to be exonerated from the departmental proceeding

together with reinstatement. The disciplinary authority

was well within its jurisdiction to award punishment

inspite of his acquittal in the criminal case, in terms of

Rule 5 of Police Regulation of Calcutta. In the case of

Inspector General of Police v. S. Samuthiram (Supra),

it was held by the Hon'ble Supreme Court that,

"26. As we have already indicated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the

onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile, etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say that in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so.

27. We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under suspension and on acquittal by the criminal court, he be reinstated. In such cases, the reinstatement is automatic. There may be cases where the service rules provide that in spite of domestic enquiry, if the criminal court acquits an employee honourably, he could be reinstated. In other words, the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. Such provisions are absent in the Tamil Nadu Service Rules."

23. R.P.Kapur (Supra) also noted that that in case of

acquittal in the trial of a criminal case, the proceeding

may continue. In the facts of the present case, such

proposition is fortified with Rule 5 of the 1968

Regulations. Moreover, the respondent was facing the

proceeding on certain charges which were quite

independent of that involved in the criminal case.

24. Similarly, in the case of G.M.Tank (Supra), the

Hon'ble Supreme Court observed that the facts and

evidence in the departmental proceeding as well as the

criminal case were same without there being any iota of

difference went on to allow the appeal as the criminal

case ended in acquittal. In the said case, the Hon'ble

Supreme Court while examining the possibility of

continuance of departmental proceeding and criminal

case based on same set of facts, noted that the decision

in the case of Capt. M. Paul (Supra) were applicable in

view of honourable acquittal of the delinquent in the

criminal case.

25. In Ajay Kumar Tyagi (Supra), Hon'ble Supreme

Court was pleased to set aside the order passed by the

High Court quashing the criminal case following

exoneration in the departmental proceeding and laid

down that,

" 24. Therefore, in our opinion, the High

Court quashed the prosecution on total

misreading of the judgment in P.S. Rajya

case [(1996) 9 SCC 1: 1996 SCC (Cri) 897].

In fact, there are precedents, to which we

have referred to above, that speak

eloquently a contrary view i.e. exoneration

in departmental proceeding ipso facto

would not lead to exoneration or acquittal

in a criminal case. On principle also, this

view commends us. It is well settled that

the standard of proof in a department

proceeding is lower than that of criminal

prosecution. It is equally well settled that

the departmental proceeding or for that

matter criminal cases have to be decided

only on the basis of evidence adduced

therein. Truthfulness of the evidence in the

criminal case can be judged only after the

evidence is adduced therein and the

criminal case cannot be rejected on the

basis of the evidence in the departmental

proceeding or the report of the inquiry

officer based on those evidence.

25. We are, therefore, of the opinion that

the exoneration in the departmental

proceeding ipso facto would not result in

the quashing of the criminal prosecution.

We hasten to add, however, that if the

prosecution against an accused is solely

based on a finding in a proceeding and

that finding is set aside by the superior

authority in the hierarchy, the very

foundation goes and the prosecution may

be quashed. But that principle will not

apply in the case of the departmental

proceeding as the criminal trial and the

departmental proceeding are held by two

different entities. Further, they are not in

the same hierarchy."

26. The facts of the present case are very much

identical to the facts obtaining in Sankar Ghosh (Supra).

The respondent therein was a police constable facing a

departmental proceeding and a criminal case under

Section 395/412 of the Indian Penal Code, 1860. Upon

his acquittal in the criminal case, the delinquent

approached West Bengal Administrative Tribunal which

disposed of the Original Application directing his

reinstatement. The State carried an appeal to the High

Court which affirmed the order passed by the Tribunal

and dismissed the appeal. The Hon'ble Supreme Court,

taking note of the provisions contained in Regulation 4

under Chapter XIX of the Police Regulation of Calcutta,

1968 held that,

"19. Regulation 4 of Chapter XIX of the

Police Regulations of Calcutta, 1968,

which is applicable to the case in hand,

specifically provides that acquittal or

discharge in a criminal proceeding shall

not be a bar to award punishment in a

departmental proceeding in respect of the

same cause or matter. The said Regulation

is extracted below for easy reference:

"4.Discharge or acquittal not a bar to

departmental punishment.--An order

of discharge or acquittal of a police

officer by a court shall not be a bar to

the award of departmental

punishment to that officer in respect

of the same cause or matter."

The above rule indicates that even if there

is identity of charges levelled against the

respondent before the criminal court as

well as before the enquiry officer, an order

of discharge or acquittal of a police officer

by a criminal court shall not be a bar to

the award of the departmental

punishment. The Tribunal as well as the

High Court have not considered the

abovementioned provision and have

committed a mistake in holding that since

the respondent was acquitted by a

criminal court of the same charges,

reinstatement was automatic.

20. We find it difficult to support the

finding recorded by the Tribunal which

was confirmed by the High Court. We,

therefore, allow the appeal and set aside

the order of the Tribunal, which was

affirmed by the High Court. However, there

will be no order as to costs."

27. In the case of Nani Gopal Majumder (Supra) a

Coordinate Bench of this Court while allowing the writ

petition, found that the report of the Enquiry Officer,

therein, was illogical for all practical purposes suffering

from procedural impropriety and was shocking to the

conscience of the Court. The same was passed without

adhering to the principles of natural justice.

28. However, in the facts of the case at hand, no such

case has been made out. The only case put forward by

the respondent was that since he had been acquitted of

the criminal charges, punishment in the departmental

proceeding was not justified.

29. In Capt. M. Paul Anthony (Supra) the Appeal was

allowed in consideration of the fact that the two

proceedings were banking upon same set of facts, the

witnesses examined in the criminal case and the

departmental proceeding were same and the failure in

both the proceedings was that no search and seizure was

made from the residence of the delinquent.

30. However, we find it prudent to reiterate that the

departmental proceeding challenged against and the

criminal case were not at all based on identical set of

facts. The criminal case was initiated on an allegation of

involvement of the respondent in the murder of a person

at his residence far away from Calcutta where he was

posted. On the contrary, in the departmental proceeding,

besides being involved in a criminal case for heinous

crime of murder, he was charged with suppressing his

implication in a criminal case from the authorities in

derogation of established rules in this regard. He was

also charged for unauthorized absence from the Barrack

without prior permission and due intimation. Some set of

witnesses were examined in his proceedings. The scope

and ambit of the two proceedings were different.

Therefore, it cannot be said that the two proceedings

stood on identical set of facts in order to conclude that

acquittal in one would entail exoneration in the other

proceeding.

31. Another aspect which requires consideration is that

the departmental proceeding was pursued. The Enquiry

Officer went on to take evidence in the proceeding and

came to a specific conclusion on the basis of evidence so

collected. The disciplinary authority concurred with the

findings of the Enquiry Officer and awarded punishment

which was upheld by the Appellate Authority. Nothing

has been brought to our notice that such finding of the

Enquiry Officer, disciplinary authority or the appellate

authority was manifestly perverse of such a degree

sufficient to shudder the conscience of the Court. In fact,

the reasoned order passed by the Commissioner of Police,

Calcutta passed in terms of the directions of the Tribunal

seems to be well founded. In consideration of the

available evidence, the conclusion arrived at by the

authorities may well be termed as a plausible point of

view.

32. In the case of Dalbir Singh (Supra) the Hon'ble

Supreme Court laid down certain guiding factors

regarding the scope and extent of judicial review in the

wake of a departmental proceeding and held that judicial

review is not an appeal. It was held thus,

"21. This Court in Union of India v. P.

Gunasekaran [Union of India v. P.

Gunasekaran, (2015) 2 SCC 610: (2015) 1

SCC (L&S) 554] had laid down the broad

parameters for the exercise of jurisdiction

of judicial review. The Court held as under:

(SCC pp. 616-17, paras 12-13)

"12. Despite the well-settled position,

it is painfully disturbing to note that

the High Court has acted as an

appellate authority in the disciplinary

proceedings, reappreciating even the

evidence before the enquiry officer.

The finding on Charge I was accepted

by the disciplinary authority and was

also endorsed by the Central

Administrative Tribunal. In

disciplinary proceedings, the High

Court is not and cannot act as a

second court of first appeal. The High

Court, in exercise of its powers under

Articles 226/227 of the Constitution of

India, shall not venture into

reappreciation of the evidence. The

High Court can only see whether:

(a) the enquiry is held by a competent

authority;

(b) the enquiry is held according to the

procedure prescribed in that behalf;

(c) there is violation of the principles

of natural justice in conducting the

proceedings;

(d)   the    authorities    have     disabled

themselves      from      reaching    a   fair

conclusion     by    some    considerations

extraneous to the evidence and merits

of the case;

(e)   the    authorities     have    allowed

themselves      to     be   influenced     by

irrelevant           or         extraneous

considerations;

(f) the conclusion, on the very face of

it, is so wholly arbitrary and

capricious that no reasonable person

could ever have arrived at such

conclusion;

(g)   the    disciplinary     authority    had

erroneously        failed     to   admit    the

admissible and material evidence;


(h)   the    disciplinary     authority    had

erroneously        admitted        inadmissible

evidence which influenced the finding;

(i) the finding of fact is based on no

evidence.

13. Under Articles 226/227 of the

Constitution of India, the High Court

shall not:

(i) reappreciate the evidence;

(ii) interfere with the conclusions in

the enquiry, in case the same has

been conducted in accordance with

law;

(iii)   go    into   the   adequacy      of   the

evidence;


(iv)    go    into   the   reliability   of   the

evidence;

(v) interfere, if there be some legal

evidence on which findings can be

based;

(vi) correct the error of fact however

grave it may appear to be;

(vii) go into the proportionality of

punishment unless it shocks its

conscience."

33. Similar principles were laid down in S.

Subramaniam (Supra), B. C. Chaturvedi (Supra) and P.

Gunasekaran (Supra). It was held that the

Court/Tribunal in its power to judicial review does not

act as appellate authority to re-appreciate the evidence

and to arrive at its own independent findings on

evidence. The court can interfere where the authority

held the proceeding in a manner which is inconsistent

with the rule of natural justice or in violation of statutory

rules.

34. In the case at hand, nothing has been brought to

demonstrate that dismissal of the representation of the

respondent or in conducting the conducting the

disciplinary proceeding, the authorities acted in violation

of rules of natural justice or in derogation of the

established rules guiding the departmental proceedings.

35. Therefore, in the light of discussions made

hereinbefore, the impugned order passed by the tribunal

in O.A. 1275 of 2012 is liable to be set aside. We

accordingly, set aside the impugned order passed by the

West Bengal Administrative Tribunal. The order passed

by the Commissioner of Police Kolkata dated October 24,

2011 shall stand restored.

36. Accordingly, the instant writ petition being WPST

508 of 2013 is hereby allowed without any order as to

costs. Connected applications, if any, shall stand

disposed of accordingly.

[MD. SHABBAR RASHIDI, J.]

37. I agree.

[DEBANGSU BASAK, J.]