(Sws.M/ vs S. Banerjee)
2023 Latest Caselaw 3627 Cal

Court No. 08                       MAT 909 of 2023
                                        with
22.05.2023                          CAN 1 of 2023
(SL 1)
                                  State of West Bengal
(Sws.M/
                                           Vs.
S. Banerjee)
                                 Soumen Nandy & Ors.


                      Mr. Joydeep Kar, Sr. Advocate
                      Mr. Sirsanya Bandopadhyay
                      Mr. Arka Kumar Nag
                                                 ... for the appellant/State

                      Mr. Bikash Ranjan Bhattacharya, Sr. Advocate
                      Mr. Firdous Samim
                      Ms. Gopa Biswas
                      Ms. Purba Mukherjee
                      Ms. Sampriti Saha
                                     ... for the respondents/writ petitioners

Mr. Amajit De Mr. Arijit Majumder ... for the CBI

Mr. Dhiraj Trivedi Mr. Samrat Goswami ... for the ED

Mr. Saikat Banerjee

The instant mandamus appeal is at the instance

of the State of West Bengal.

The Preamble of the Memorandum of Appeal says

that the appellant being aggrieved by and/or

dissatisfied by the order dated April 21, 2023 passed by

the Hon'ble Justice Abhijit Gangopadhyay, modified

order dated May 12, 2023 passed by the Hon'ble Justice

Amrita Sinha, in the Writ Petition, being W.P.A. No.

9979 of 2022(Soumen Nandy vs. State of West Bengal &

others) has preferred the present appeal.

Mr. Joydeep Kar, learned senior counsel for the

appellant submits that though the said Preamble has

been couched in the said manner but the challenge of

the appellant is against the order dated April 21, 2023

passed by the Hon'ble Justice Abhijit Gangopadhyay.

The respondent no. 1 filed the writ petition being

W.P.A. No. 9979 of 2022 alleging inter alia that the

Teacher Eligibility Test (TET), 2014 is the biggest scam

of the education department of the Government of West

Bengal and prayed investigation into the said scam by

the Central Bureau of Investigation(CBI).

The investigation by the CBI was ordered in the

said writ petition, the investigation is going on. The

Enforcement Directorate was also ordered to investigate

the said alleged scam.

The Enforcement Directorate (hereinafter referred

to as the 'ED', in short) though is not a party but filed

an application being CAN 02 of 2023 in the said writ

petition with the following allegation at paragraph 4 of

the said application:-

"That during investigation in respect of Primary Teachers Recruitment Scam under PMLA, 2002 searches were carried out at various premises linked to one Shri Ayan Sil and Others on 19/20.03.2023. During the course of search, several incriminating documents along with digital evidences were recovered and seized from the possession of Shri Ayan Sil. The scrutiny of the incriminating documents has revealed that the scam is not only limited to recruitment of the teachers but also covers several other appointments by the various municipalities. It has been noticed that

several persons including Shri Ayan Sil, other agents, intermediaries etc. have obtained the bribe money/ illegal money/ illegal considerations both in respect of illegal recruitment of teaching and non-teaching staff in the education sector as well as for securing various employments in various municipalities and even the proceeds of crime of Teachers recruitment scam and the Municipality Recruitment Scam have got intermingled on account of common agents like Shri Ayan Sil and common beneficiaries and the fact that the victim in both the cases is same i.e., "public/common people at large" a separate FIR for investigation of Municipality Recruitment Scam under the relevant provisions of IPC and PC Act by the predicate agency would be required by the predicate agency would be required. On account of intermingling of the proceeds of crime of teachers recruitment scam and municipality recruitment scam and the fact that CBI is investigating the teachers recruitment scam, the ED has shared detailed information with the CBI under the provisions of Section 66 of the Prevention of Money Laundering Act, 2002 with a request to investigate the predicate offence of municipality recruitment scam as well."

[sic]

The ED by the said application, prayed the

following order:-

In these circumstances your Applicant humbly prays that your Lordship may graciously be pleased to take on record the brief of the investigation and pass appropriate orders in this regard and/or to pass such other or further order or orders and/or direction or directions as your Lordship may deem fit and proper.

The ED filed a status report on the investigation

conducted in primary teachers recruitment scam before

the learned Single Judge.

The learned Single Judge upon consideration of

the said report held that facts revealed during

investigation of "teachers recruitment scam", the

detailed information has already been shared with the

CBI, Headquarters under the provisions of section 66(2)

of the Prevention of Money Laundering Act, 2002 for

further necessary action to investigate the predicate

offence of corruption, cheating etc. involved in this very

serious case of large public interest, i.e., "Municipality

Recruitment Scam" in the state of West Bengal."

The State of West Bengal challenged the aforesaid

order dated April 21, 2023 in Special Leave to Appeal (C)

No. 8706 of 2023 inter alia on the grounds that the said

order was passed without affording opportunity to the

concerned advocate or to the concerned Department for

appropriate action to contest the said application.

The said Special Leave Petition was disposed of by

the order dated April 28, 2023 inter alia with the

following order:-

"..

5. In the interests of justice, we are of the view that it would be appropriate if the State of West Bengal is heard afresh by the High Court on the issue as to "CBI" whether the investigation should be initiated by the CBI. We accordingly permit the petitioner to move a petition by way of review before the High Court. The High Court shall, after hearing the parties, take a considered view in the matter.

..."

The appellant thereafter took out an

application (RVW 83 of 2023) seeking review of the

said order dated April 21, 2023.

The Hon'ble Justice Amrita Sinha, by the

judgment and order dated May 12, 2023 dismissed the

said application for review thereby affirmed the said

order dated April 21, 2023.

Mr. Kar submits that the order impugned is

wholly without jurisdiction inasmuch as on the day

when the impugned order was passed, the learned

Single Judge had no determination relating to

municipality, besides, the said order was passed

without affording any opportunity to the State or its

concerned departments to contest the said application.

He presses for an ad interim order of stay of the

ongoing investigation.

Mr. Bikash Ranjan Bhattacharya, learned

advocate for the respondent no. 1 strongly raises issue

of maintainability of the appeal. He submits that the

link between the teacher recruitment scam and the

recruitment in the municipalities has been established

as such, all the recruitment scams of like nature must

be brought under the investigation of common agencies.

The learned counsel for the ED and the Central

Bureau of Investigation submits that the investigation is

at a very nascent stage, any order of stay shall affect the

ongoing investigation.

We have heard the learned counsel for the parties

and have perused the materials-on-record.

We are informed by the learned counsel for the

ED that his client has gathered sufficient materials to

link the two scams and can produce those materials

before the Court, if necessary.

We find that except the status report from the

ED, no other materials were produced before the

learned Single Judge to link the said two scams. The

said materials need to be looked into before arresting

further progress of the ongoing investigation,

particularly when, the investigation is at a preliminary

stage.

That apart, the grounds on which the order

impugned is assailed in the present appeal are similar

to the grounds on which the review of the said order

was sought for, in the absence of challenge to the order

dismissing the said application for review, the effect of

the findings returned by the learned Single Judge while

dismissing the application for review, on the

maintainability of the appeal needs to be looked into.

We direct the ED to produce materials in support

of the allegation made in paragraph 4 of its application

on the next date of hearing.

The maintainability of the appeal as urged by

Bhattacharya, is kept open.

List the appeal and the application before the

regular bench having determination on June 06, 2023.

Though we have refused to grant any interim

relief at this stage, but we grant liberty to the appellant

to apply for such relief, if occasion so arises.

Parties to act on the server copy of this order duly

downloaded from the official website of this court.

Urgent Photostat certified copy of this order, if

applied for, be supplied to the parties upon compliance

with all requisite formalities.

(Apurba Sinha Ray, J.) (Biswajit Basu, J.)