Calcutta High Court (Appellete Side)
Dipankar Biswas vs The State Of West Bengal & Ors on 19 July, 2023
1
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
WP.ST 410 of 2013
Dipankar Biswas
Vs.
The State of West Bengal & Ors.
For the petitioner : Mr. Partha Ghosh
Mr. Amal Kumar Datta
Mr. Rahul Agarwala
Ms. Simran Sureka
Mr. Debashis Das
For the State : Mr. Tapan Kumar Mukherjee, Ld. AGP
Mr. Pinaki Dhole
Mr. Somnath Naskar
Heard on : July 19, 2023
Judgment on : July 19, 2023
DEBANGSU BASAK, J.:-
1.
The writ petitioner is aggrieved by an order dated September
20, 2013 passed by the West Bengal Administrative Tribunal
in OA-1693 of 2009.
2. By the impugned order, the Tribunal refused to set aside an
order of dismissal of the writ petitioner in a disciplinary
proceeding.
3. Learned Advocate appearing for the writ petitioner submits
that, the writ petitioner explained his absence for 138 days
for which he was charged with. He draws the attention of
the Court to several documents annexed to the writ petition.
He submits that, initially, the writ petitioner left his
company and battalion on August 16, 2002 on hearing his
son's illness. On reaching home, the writ petitioner involved
in a motor accident on August 17, 2002 and was under
treatment. He informed the authorities that on September 2,
2002 he fell down in the bathroom and received injury.
4. Learned Advocate appearing for the writ petitioner submits
that, a punishment for dismissal from service on account of
unauthorized absence is harsh. He relies upon 2006 (1)CLJ
(Cal)386 ( Madhusudan Chowdhury vs. State of West Bengal
& Ors.), 2013(4)CHN(Cal)562 (Barun Chatterjee vs. State of
West Bengal) and submits that, since unauthorized absence
does not involve moral turpitude, a punishment of dismissal
cannot be awarded as was held in the two authorities. He
relies upon 2012 (2) Supreme 254 (Krushnakant B. Parmar
vs. Union of India & Anr.) and (2010)2 WBLR (SC) 99
(Chairman cum Managing Director, Coal India Ltd. & Anr. Vs.
Mukul Kumar Choudhuri & Ors.) and submits that, a
dismissal from service on account of unauthorized absence
was harsh and was required to be set aside.
5. Learned Senior Advocate appearing for the State submits
that, the two authorities of the Calcutta High Court
proceeded on the basis of consideration of Regulations 856
and 857 of the Bengal Police Regulation, 1943. The
petitioner was a constable of Calcutta Police and was
governed by the provisions of the Police Regulations of
Calcutta, 1968.
6. Learned Senior Advocate appearing for the State draws the
attention of the Court to Regulation 2 Chapter 19,
Regulations 1,5,8 and 9(6)(b) of the Regulation of 1968 and
submits that, unauthorized absence is considered to be
reflecting on the character of the delinquent. Since
character of the delinquent is involved, a punishment for
dismissal from service in respect of a police force is called
for. He submits that, in similar circumstances, a Coordinate
Bench while considering a disciplinary proceeding as against
a constable of the Calcutta Police upheld a punishment of
dismissal from service in (2011)4 CAL LT 570 (HC) (Ratan
Dutta vs. State of West Bengal & Ors.). He relies upon
(1996)1 Supreme Court Cases 302 (State of U.P. And Others.
Vs. Ashok Kumar Singh and Another) and (2014) 4 Supreme
Court Cases 108 (Chennai Metropolitan Water Supply and
Sewerage Board and Others vs. T.T. Murali Babu) and
submits that, the quantum of punishment to be imposed
should best be left to the disciplinary authority.
7. In the facts of the present case, since the petitioner was a
police constable and belonging to a disciplined force,
quantum of punishment imposed was appropriate to the
charges established. Consequently, according to the learned
Senior Advocate for the State, no interference is called for.
8. Petitioner was proceeded against departmentally for
unauthorized absence from August 16, 2002 till December
31, 2002, that is, for 138 days. Enquiry proceedings were
held where the petitioner was found liable to be proceeded
against. Departmental proceedings were initiated where the
petitioner was found guilty. In the departmental proceeding
apart from his unauthorized absence for the period from
August 16, 2002 to December 31, 2002 for 138 days being
taken into consideration, his service record was also taken
into consideration. It was noted that the petitioner earned
three punishments with only one on record. Petitioner was
charged with proceeding no.23 dated January 14, 2002 for
his unauthorized absence of 767 days and was punished by
withholding two increments and extraordinary leave for 77
days. It was found that, in such disciplinary proceedings,
his long unauthorized absence was found to be affecting the
company in which he was posted with his colleagues not
being able to avail of their regular leave. Considering such
facts, a punishment of dismissal from service was imposed
on the petitioner which was assailed before the Tribunal. By
the impugned order, the Tribunal dismissed the original
application filed by the petitioner.
9. Madhusudan Chowdhury (supra) and Barun Chatterjee
(supra) are by Coordinate Benches and considers
Regulations 856 and 857 of the Police Regulation of Bengal,
1943. The Police Regulation of Calcutta, 1968 is later in
point of time and regulates the affairs of police personnel
engaged with the Kolkata Police. Regulations 2 of Chapter 1,
Regulation 1, 5,8 and 9(6)(b) of Chapter 19 are relevant in
the present context and they are as follows:
"Chapter-I
2. Limitation of application.- These Regulations are
applicable only to the Calcutta Police Force.
Chapter-XIX
1. General. Notification No.4114-P1., dated the
4th October 1962.- Punishments shall be of two
classes, namely, major punishments and minor
punishments. Major punishments include dismissal,
removal from service, reduction, deprivation of approved
service increment. Minor punishments include warning,
censure (reprimand for misconduct), extra drill, extra
fatigue duty, confinement to quarters and fine.
Suspension is not to be considered as a specific
punishment, and is only authorized in cases where the
continuance in office of an Officer pending enquiry into
his conduct is prejudicial to the public interest. When
the enquiry is completed, some definite order of
acquittal or punishment shall be recorded.
5. Retention in service of police officers sentenced
by Criminal Courts.- Every police officer sentenced by
a Court for an offence implying moral turpitude shall,
unless the Commissioner of Police otherwise orders, be
dismissed.
A police officer sentenced by a Court for an offence
not implying moral turpitude shall ordinarily be
dismissed but in trivial cases some more lenient form of
punishment than dismissal may be awarded or the
offender may not be punished. In such cases the
proceedings shall contain a record of the reasons for
dismissing or not dismissing the offender.
8. Absence without leave.-When an officer absents
himself without leave (otherwise than by overstaying
leave), and it is not thought desirable to grant him
regular leave, the delinquent may be punished for
misbehavior after drawing up regular proceedings.
9(6)(b). The enquiring officer or the authority empowered
to award punishment to the person charged, as the
case may be, shall, after considering such casue as
may be shown by the person charged against the
proposed penalty and after considering the previous
character or the person charged, award such
punishment to the person charged as he thinks fit."
10. Regulation 2 of Chapter 1 stipulates that, the Regulation of
1968 will apply to the police personnel of Kolkata Police.
Petitioner was a constable of Kolkata Police. Regulation 8 of
Chapter 19 stipulates that when police personnel absents
himself without leave (otherwise than by overstaying leave),
and it is not thought desirable to grant him regular leave,
the delinquent may be punished for misbehavior after
drawing up regular proceedings. Regulation 9(6)(b) allows
the enquiring officer or the authority empowered to award
punishment to take into consideration the previous
character of the person charged and award such
punishment to the person charged as he thinks fit.
11. Misbehavior as prescribed in Regulation 8 will relate to the
character of the delinquent. Moral turpitude is considered in
Regulation 5 of Chapter 19. It involves proceedings before a
Court of law. It prescribes that, where, any police personnel
is sentenced by a Court for offence implying moral turpitude,
shall unless the Commissioner of Police otherwise orders, be
dismissed. Any sentence by a Court not implying moral
turpitude shall ordinarily be resulting dismissal but in trivial
cases some more lenient form of punishment than dismissal
may be awarded.
12. A delinquent was proceeded against under the provisions of
the Police Regulation of Calcutta, 1968 in Ratan Dutta
(supra). There, the Coordinate Bench considered various
authorities of the Supreme Court to the effect that, Courts
ordinarily do not interfere with the quantum of punishment
imposed in a disciplinary proceeding in respect of a
disciplined force.
13. Krushnakant B. Parmar (supra) and Madhusudan Chowdhury
(supra) relates to the disciplinary proceeding in respect of
employees who were not the members of a disciplined force.
Therefore, it would be inappropriate to apply such ratio to
the facts and circumstances of the present case.
14. In Ashok Kumar Singh & Another (supra) and T.T. Murali
Babu (supra) the Supreme Court dealt with the scope of
judicial review of punishment awarded after departmental
enquiry. In Ashok Kumar Singh & Another (supra), a police
personnel was involved, there, the Supreme Court refused to
reduce the quantum of punishment imposed. In T.T. Murali
Babu (supra), again the proportionality/quantum of
punishment imposed and the scope of judicial review with
regard thereto was discussed. On the facts, it was held
that, the High Court erred in interfering with the quantum of
punishment imposed.
15. In T.T. Murali Babu (supra), the Supreme Court is of the view
that the doctrine of proportionality in the case of imposition
of punishment in service law gets attracted when a Court on
the analysis of materials brought on record comes to the
finding that the punishment imposed by the disciplinary
authority or the appellate authority shocks the conscience of
the Court. In the facts of the present case, the petitioner is a
member of the disciplined force and was found to be in
unauthorized absence for a period of 138 days. That apart,
there were three previous instances of disciplinary
proceedings being initiated as against the petitioner and one
resulting in sentence of lighter nature for unauthorized
absence.
16. In one of the previous disciplinary proceedings, it was found
that, the unauthorized absence of the petitioner was
affecting the discipline of the company in which he was
posted. His unauthorized absence was resulting in his
colleagues not receiving their regular leaves.
17. In such context, his unauthorized absence of 138 days
would also result in a corresponding negative impact on the
regular leave of his colleagues who could otherwise be
entitled to leave on regular basis.
18. In such circumstances, we are unable to persuade ourselves
that, the quantum of punishment imposed on the writ
petitioner was disproportionate to the charges established.
19. We find no reason to interfere with the impugned order.
20. WP.ST 410 of 2013 is dismissed without any order as to
costs.
(Debangsu Basak,J.)
21. I Agree.
(Md. Shabbar Rashidi, J.)
(AD)
