Julficar Sardar vs The State Of West Bengal & Ors
2023 Latest Caselaw 825 Cal

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             IN THE HIGH COURT AT CALCUTTA

                (Civil Appellate Jurisdiction)

                      APPELLATE SIDE

Present:

The Hon'ble Justice Subrata Talukdar

And

The Hon'ble Justice Supratim Bhattacharya



                    FMA 2689 of 2015
                       Julficar Sardar

                             -Vs-
               The State of West Bengal & Ors.



For the Appellant                     : Mr. Ajay Debnath
                                        Mr. Pradip Kar
                                        Mr. Sujit Saha

                                        Mr. Devranjan Das

                                        Mr. Asit Kumar De



For the State- Respondents          : Mr. Supriyo Chattopadhyay

Ms. Tapati Samanta

Heard On : 07.11.2022 Judgement Delivered On : 31.01.2023

Supratim Bhattacharya, J.:- The instant appeal is directed

against the Judgment and Order dated 14.05.2015 passed in the

writ petition being WP 9324(W) of 2015. The appellant in the

instant appeal was the petitioner in the said writ petition while the

respondents were the respondents to the said writ petition.

The issue before the Hon'ble Single Bench was as to whether

the respondent authorities were correct in not permitting the

appellant to join the voluntary force in which the appellant

petitioner was working as a Home Guard.

Initially, the petitioner being a home guard was not allowed to

join his service on the ground that the petitioner was in judicial

custody for 84 days being implicated in a criminal case following a

dispute between the appellant/ petitioner's family and the family of

his relatives. Being unable to join his service the appellant

petitioner filed a writ petition being WP 27663 (W) of 2014 praying

for allowing him to join his post. The then Hon'ble Single Bench had

directed the petitioner to make a written representation to the

concerned Deputy Commissioner of Police for his consideration in

accordance with law. The appellant/ writ petitioner had prayed for

allowing him to join his post which was ultimately disallowed by the

then Deputy Commissioner. On being refused by the Deputy

Commissioner of Police to join his post the appellant preferred

another writ petition before this Hon'ble Court. The said second writ

petition stood dismissed, against which the instant appeal has been

preferred.

The crux of this appeal is as to whether the Order passed by

the Hon'ble Single Bench in the writ petition being No. WP 9324 (W)

of 2015 is in accordance with law or not.

The Learned Counsel appearing on behalf of the appellant

/petitioner has submitted that the appellant/ petitioner cannot be

disallowed from joining his service as he does not have any criminal

antecedents. He has further argued that on a false allegation

against the appellant petitioner the criminal proceedings has been

initiated which is not at all tenable in the eye of law. He has further

submitted that considering the false criminal allegation the

appellant/ petitioner cannot be divested of his service and he ought

to be allowed to join in the post he was deployed prior to the false

allegation against him.

The Learned Counsel appearing on behalf of the respondents

has submitted that in the first round of litigation between the

parties, the Hon'ble Court had come to the conclusion directing the

Deputy Commissioner of Police to look into the petition which was

to be filed by the appellant/ petitioner and after considering all the

aspects a reasoned decision was to be passed by the said Deputy

Commissioner. He has further submitted that the Police authorities

looked into the prayer of the appellant/ petitioner and had come to

a finding that it would be injudicious to allow persons with proven

misconduct unbecoming of a member of a disciplined volunteer

force to join.

He has further submitted that against the said order of the

Deputy Commissioner the appellant petitioner has preferred the

second round of writ petition which has also been disallowed. In

this regard the Learned Counsel has submitted that Rule 9 of the

West Bengal Home Guard Rules, 1962 lays down that the

appointing authority may by a written order remove any officer or

other member of the Home Guard who by reason of his misconduct

or neglect of duty or breach of discipline is considered by the

appointing authority to be unfit to act and continue as an officer or

member or unlikely to make an efficient officer or member of the

Home Guard and the decision of the appointing authority in this

respect shall be final. The Learned Counsel has further submitted

that the second round of writ petition is barred by res judicata and

principles analogous thereto as the issue has finally been settled by

the first writ petition.

The Learned Counsel has further submitted that the allegation

against the appellant/ petitioner includes Section 302 of the Indian

Penal Code which is a grave offence and the said criminal trial has

not yet concluded. In such circumstance no question arises as

regards to allowing the appellant/ petitioner to rejoin his service.

Having heard the parties and considering the materials placed,

this Court finds that against the appellant/ petitioner a criminal

case has been instituted and in connection with the said criminal

case the appellant/ petitioner was in custody for 84 days and

thereafter having been released the appellant/ petitioner went to

join his service when he was disallowed. As a consequence of which

the appellant/ petitioner preferred the first round of writ petition

wherein the Hon'ble Single Bench directed the writ petitioner to

submit his written representation before the Deputy Commissioner

of Police praying for considering the same in accordance with law.

The said representation was negated and in consequence of which

this writ petition has been preferred.

From the aforesaid discussion and the provisions of the Home

Guard Act, 1962 it is apparent that Home Guards are volunteers.

Considering the aforesaid facts, this Bench is also of the same view

that a volunteer of a disciplined force is required to have a clean

antecedent as regards to his character which the appellant has

forgone. It is expected that a member of a disciplined force is to

have a clear image which the appellant/ petitioner has tarnished by

his previous act. The criminal charges which has been alleged

against the appellant/ petitioner includes Section 302 of the Indian

Penal Code which itself is a grave offence and as the said criminal

case is still pending adjudication, so the representation of the

appellant / petitioner as regards rejoining his service is not at all

acceptable.

Considering the aforesaid discussion, this Court finds no

infirmity in the Judgement and Order impugned of the Hon'ble

Single Bench.

FMA 2689 of 2015 stands accordingly dismissed.

Parties shall be entitled to act on the basis of a server copy of

the Judgment and 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.

(Subrata Talukdar, J.) (Supratim Bhattacharya, J.)