Calcutta High Court (Appellete Side)
The State Of West Bengal & Ors vs Naimuddin Sk. & Anr on 13 July, 2023
Dd 44 12.07.2023
(ML)
WP.ST 105 of 2016
The State of West Bengal & Ors.
Vs.
Naimuddin Sk. & Anr.
Ms. Tuli Sinha, Advocate
... ... For the Petitioner/State
Ms. Jharna Biswas,
Ms. Susmita Biswas Chowdhury, Advocates
... ... For the Respondents
The writ petition is at the behest of the State. An
order dated July 1, 2015 passed in OA 48 of 2014 by
the West Bengal Administrative Tribunal is under
challenge.
By the impugned order, the tribunal passed an
order of acquittal in favour of the private respondent.
The tribunal opined that the tribunal was bound by an
order of acquittal. Considering the entire issue, the
tribunal allowed the prayer of the private respondent
and allowed him to join his duties.
Learned advocate for the State draws the
attention of the Court to the materials on record. She
submits that, the private respondent participated in a
selection process for the post of constable. He was
provisionally selected. The private respondent was
asked to report for physical verification. At the time of
physical verification it was detected that, the petitioner
was not the same person as that of the photographs
affixed to the selection documents. Consequently, a
criminal case was lodged which resulted in an order of
WP.ST 105 of 2016
acquittal. She submits that, the order of acquittal is
not a complete discharge of all liabilities of the private
respondent. The action of the private respondent
entails both criminal and civil liabilities. So far as the
criminal liability is concerned, the criminal case resulted
in an order of acquittal on the ground of lack of
evidence. It cannot be said that, private respondent
was discharged honourably from the charges levelled as
against him.
Learned advocate for the writ petitioner draws the
attention of the Court to the orders passed from time to
time by this Hon'ble Court. She submits that, initially
an order of stay was granted by this Court. Thereafter,
the Court took upon an exercise of comparing the
petitioner with the photographs affixed to the selection
documents. She refers to an order dated February 18,
2019 in this regard.
Learned advocate appearing for the private
respondent draws the attention of the Court to the
affidavit-in-opposition filed by her client. She submits
that, the photograph appearing in the verification roll
was affixed by her client. In aggregate 7 photographs
were furnished by her client loosely to the department.
According to her, all the candidates participating in the
selection process handed over loose photographs which
were affixed by the department. Therefore, her client
was not responsible with regard to photographs
appearing in the other documents apart from
verification roll.
Learned advocate appearing for the private
respondent submits that the private respondent cannot
be visited with double jeopardy. A criminal case was
lodged as against the private respondent which resulted
in an order of acquittal. She refers to the first
WP.ST 105 of 2016
information report which was lodged as against the
private respondent. She submits that in the first
information report, the allegation as against the private
respondent was one of forgery and cheating in respect
of the documents submitted during the selection
process. She submits that the private respondent was
acquitted from such charge by the criminal Court. She
refers to the judgment of the criminal Court in this
regard.
Learned advocate appearing for the private
respondent, refers to a message dated October 24,
2007, by which, the private respondent was asked to
report for physical verification which the private
respondent did. It is thereafter, the criminal case was
lodged. She submits that, since the private respondent
was provisionally selected, the private respondent
should be allowed to join his duties. She submits that
no departmental proceeding was initiated as against
the private respondent.
The private respondent participated in a selection
process. Private respondent was required to submit his
photographs in the selection process. In the affidavit-
in-opposition filed in the present writ petition, private
respondent states on oath that he made over loose 7
photographs to the department. Private respondent
acknowledges that the photograph on the verification
roll was affixed was his. The other photographs,
according to the private respondent, were loosely made
over to the department and that the department affixed
the same.
This Hon'ble Court noticed that there was
discrepancy between the natural person and the
photographs of such natural person found on the
documents relating to the selection process.
WP.ST 105 of 2016
Consequently, by an order dated February 13, 2019,
this Hon'ble Court considered the verification roll in
original as filed by the private respondent, as well as
registers maintained by the department containing the
photographs of the aspirants for the post of constable
whose physical efficiency test and interview were
taken. A prima facie view was returned that the
photograph in the verification roll differs substantially
from the photographs of the private respondent as
pasted on the registers. Consequently, the private
respondent was directed to be personally present
before the Court.
The writ petition was taken up for consideration
on February 18, 2019 thereafter. The private
respondent was present in Court in terms of the order
dated February 13, 2019. The Court ascertained from
the learned counsel appearing for the private
respondent as to the veracity of the photographs in the
several registers. Learned advocate for the private
respondent submitted that, the photographs on the
several registers produced by the writ petitioner were
not the photographs of the private respondent and that
the signatures on such photographs were not that of
the private respondent. This was recorded. Going
forward, the Court recorded that they looked at the
private respondent who was present in Court and by
looking at the photographs appearing in such registers,
the Court returned a finding that the Court was certain
that the photographs pasted at the registers were not
that of the private respondent.
This order remains in the records of this writ
petition without any challenge being thrown thereto.
We are faced with a situation where, a candidate,
participating in the selection process was found by the
WP.ST 105 of 2016
Court conclusively not to subscribe his signature on the
photographs pasted on several registers and that the
photographs pasted on such several registers not to be
his.
The criminal case was one of forgery as against
the private respondent. It did result in an order of
acquittal albeit on the ground of the prosecution failing
to produce relevant evidence in support of the charges.
It cannot be said that, the private respondent was
discharged honourably from the charge in the criminal
case.
An action may result into the criminal and civil
liabilities. In a criminal trial the evidence adduced is
evaluated on the parameter of prove beyond
reasonable doubt while in civil trial the evidence is
adduced on the parameter of preponderance of
probabilities. Question of the private respondent
suffering double prejudice in the facts and
circumstances of this case does not arise. The
documents considered by this Court were apparently
not considered by the criminal Court and in any event
the result of evaluation can be different given the
different parameters for evaluation.
That apart, the larger issue remains one of
appointment.
We find from the records that at best, the private
respondent was provisionally selected and was asked to
report for undergoing physical verification when the
anomalies were detected. It cannot be said that, the
private respondent was appointed to any post. The
process of appointment was ongoing. The private
respondent was yet to be appointed to any post.
Consequently, since the private respondent was
yet to be appointed to any post, the question of
WP.ST 105 of 2016
initiation of a departmental proceeding against the
private respondent did not arise.
In such circumstances, since the anomalies in the
registers pertaining to the selection process, vis-à-vis
the private respondent continues to remain and since
there is a conclusive admission of the private
respondent that, the signatures on the photographs
appearing in the several registers maintained by the
selection authority, during the selection process, were
not his, we find that the tribunal erred in directing the
private respondent to join his duties. As noted above,
there was no joining letter for the private respondent to
join to any post. The private respondent was yet to be
appointed to any post.
In such circumstances, we set aside the
impugned order of the tribunal and allow the writ
petition.
WP.ST 105 of 2016 is allowed without any order
as to costs.
(Debangsu Basak, J.)
(Md. Shabbar Rashidi, J.)
