Union Of India & Ors vs Sri Sukdeb Mondal
2023 Latest Caselaw 6711 Cal

                     IN THE HIGH COURT AT CALCUTTA
                               Civil Appellate Jurisdiction
                                  APPELLATE SIDE



Present:

The Hon'ble Justice Tapabrata Chakraborty
                 &
The Hon'ble Justice Partha Sarathi Chatterjee


                                   FMA 1434 of 2022
                                          with
                                 IA No. CAN 1 of 2022
                                 Union of India & Ors.
                                        -Versus-
                                  Sri Sukdeb Mondal



For the Appellants         :       Mr. Partha Ghosh,
                                   Mr. Sourav Mondal,
                                   Ms. Simran Sureka,
                                   Mr. Debashis Das.



For the Respondent         :       Mr. Achin Kumar Majumder.
                                   Ms. Ananya Adhikary.



Hearing is concluded on    :       13th September, 2023.



Judgment On                :       4th October, 2023.



Tapabrata Chakraborty, J.

1. The railways and its functionaries have preferred the present

appeal challenging a judgment dated 6th September, 2022 passed by the

learned Single Judge in a writ petition, preferred by one Sukdeb Mondal (in

short, Sukdeb), being WPA 28149 of 2015 challenging inter alia an order of

termination from service dated 13th July, 2015 and an order dated 14th

October, 2015 passed by the Director General, Railway Protection Force (in

short, RPF).

2. Shorn of unnecessary details, the facts are that Sukdeb, the

respondent in the present appeal, applied for the post of Constable, RPF of

Eastern Railway pursuant to an advertisement/ notification being

employment notice no.1 of 2011. Sukdeb emerged to be successful and

after police verification and medical test, he was sent for training. After

successful completion of training on 18th June, 2015, he was directed to

appear in the office of the appellant no.3 herein. On 14th July, 2015, when

he attended the office, he was served a notice of termination from service

dated 13th July, 2015. On the said date itself Sukdeb submitted a

representation to the respondent no.2 for reinstatement as due to a bona

fide mistake he did not disclose the initiation and pendency of a Chakdah

Police Station Case No.103 of 2011 dated 16th March, 2011 under Section

341/323/506/34 of IPC in the attestation form. By an order dated 20th

January, 2015 passed by the learned Magistrate the petitioner and others

were acquitted u/s 320 of the Code of Criminal Procedure (in short, the

Code) considering the compromise petition filed by the defacto complainant

praying for compounding of the offences against all the accused persons.

Challenging the termination order, Sukdeb preferred a writ petition being

WP 23959 (W) of 2015 which was disposed of by an order dated 16th

September, 2015 directing the appellant no.2 to decide the appeal against

the order of termination. Pursuant to such direction, the appellant no.2

passed an order on 8th October, 2015, communicated vide memo dated 14th

October, 2015, rejecting Sukdeb's claim.

3. Mr. Ghosh, learned advocate appearing for the appellants submits

that the appellant has been acquitted on the basis of a compromise arrived

at between the parties. It is not a case that upon tendering evidence and

full-fledged hearing, Sukdeb was honourably acquitted by the order dated

20th January, 2015. In a disciplined force, strict norms are needed to be

applied. To avail appointment in police service, the candidate must be

having an impeccable character, integrity and rectitude. Sukdeb was

involved in a criminal proceeding on the date he filled up the attestation

form and though the criminal case was pending against him in answer to

the question 'Have you been prosecuted?' he stated 'No'. There had thus

been a deliberate suppression of material fact by Sukdeb and as such the

competent authority rightly issued the order of termination on 13th July,

2015 and there is no infirmity in the same.

4. He further argues that Sukdeb does not come within the

parameters as detailed in paragraph 38 of the judgment delivered by the

Hon'ble Supreme Court in the case of Avtar Singh -vs- Union of India and

Others, reported in (2016) 8 SCC 471, inasmuch as there was suppression of

information as regards involvement in a criminal case and Sukdeb was

acquitted subsequent to filling of the verification form.

5. According to Mr. Ghosh, the learned Single Judge exercised

discretion in favour of Sukdeb observing that the offence was trivial in

nature and not of moral turpitude but glossed over the fact that there had

been a clear suppression of material fact by Sukdeb on the date he was

filling up the attestation form. The learned Single Judge ought to have

appreciated that verification of criminal antecedent is one of the important

criteria to test whether the selected candidate is suitable for the post and as

to whether it was desirable to appoint such a person.

6. Drawing our attention to a memo dated 10th March, 2015, issued

by the District Intelligence Officer, Chakdah, Mr. Ghosh submits that in

course of verification it was found that a criminal case was pending against

Sukdeb. He violated the provisions of clause 9(f) of the employment

notification and was discharged rightly applying the provisions of Rule 67.2

of the Railway Protection Force Rules, 1987 (in short, the 1987 Rules).

7. Per contra, Mr. Majumder, learned advocate appearing for Sukdeb

submits that there was a bona fide mistake on the part of the petitioner to

disclose the pendency of the criminal case in the attestation form. For such

omission the employer could not have arbitrarily discharged/terminated

Sukdeb from service. In the present case, Sukdeb was of a tender age on

the date of the alleged incident. He along with all his family members were

illegally roped in. No specific overt act was attributed to Sukdeb in the

complaint. Sukdeb also did not suffer incarceration. The complainant

consciously filed the compromise petition for compounding the offences

against all the accused persons. Without considering such facts the

appellants in an arbitrary manner discharged Sukdeb from enlistment for

the post of Constable.

8. Drawing our attention to a memo dated 24th February, 2004, issued

by the Under Secretary, Railway Board, Mr. Majumder submits that one

Bijendar Singh Goutam, similarly situated with Sukdeb, was discharged for

suppression of a fact in the attestation form that a criminal case was

pending against him. Subsequently, in view of his acquittal in the said case

the order of discharge was withdrawn. Such fact though categorically stated

in the representation dated 31st July, 2015 was not taken into consideration

while issuing the impugned order dated 8th October, 2015.

9. He further argues that one Sri Pawan Kumar, similarly situated

with Sukdeb, was also discharged as he suppressed information in the

verification form. The said dispute went up to the Hon'ble Supreme Court

and finally by the judgment delivered in the case of Pawan Kumar -vs- Union

of India & Anr., reported in 2022 LiveLaw (SC) 441, Pawan's order of

discharge was set aside. The principle of law enunciated in the case of

Pawan Kumar (supra) is squarely applicable to the facts of the present case

and that as such there is no error in the judgment impugned in the present

appeal.

10. He argues that as Sukdeb was illegally discharged, the learned

Single Judge had rightly directed reinstatement and payment of arrears of

salary for the period during which he had not served the force due to the

impugned discharge/dismissal together with all benefits including pay,

seniority and all other consequential benefits etc. taking into account as if

Sukdeb had not suffered any discharge/dismissal from his employment.

11. Drawing our attention to the termination order dated 13th July,

2015, Mr. Majumder submits that the said order does not reflect any

application of mind whatsoever. By a single stroke of pen, Sukdeb had been

discharged. Such act being ex facie arbitrary and unreasonable is not

sustainable in law. In support of such contention reliance has been placed

upon an unreported judgment delivered in the case of Union of India & Ors. -

vs- Bibrata Biswas. The said judgment had already been complied with by

the RPF authorities and as such the said authorities cannot apply any

different yardstick in case of Sukdeb, who is similarly situated with Bibrata

Biswas.

12. In reply, Mr. Ghosh argues that the judgment delivered in the case

of Pawan Kumar (supra) is distinguishable on facts inasmuch as no criminal

case was either instituted or pending against Pawan on the date he filled up

the attestation form. However, in the present case a criminal case was

pending against Sukdeb on the date he filled up the attestation form. In

view thereof, the recourses detailed under paragraph 38.4 of the judgment of

Avtar Singh (supra) are not applicable in the present case.

13. Heard the learned advocates appearing for the respective parties

and considered the materials on record.

14. The term 'serious crime' connotes a crime beyond the ordinary,

inviting a more serious major punishment than what may be given in the

case of a minor omission. If the crime is grave, the punishment shall have to

be major. An act which could be viewed as a 'serious crime' may take within

its comprehension acts of moral turpitude, corruption or misappropriation,

for example. The very nature of offence or misconduct alleged against the

Sukdeb for which the proceeding has been initiated and was pending on the

date he filled up the attestation form, thus, becomes relevant. The case

pending against Sukdeb was u/s 341/323/506/34 of IPC. The nature of

such offences cannot by any stretch of imagination be construed to be a

'serious crime'. In the case of Avtar Singh (supra) the Court had observed

that in respect of offences trivial in nature the employer is under an

obligation to consider as to whether the suppression of fact or false

information can be condoned. In the present case, however, there had been

no such consideration and Sukdeb's claim had been mechanically rejected.

15. Compounding of an offence is a statutory expression contained

under Section 320 of the Code. The learned Magistrate upon considering

the facts and circumstances of the case has jurisdiction to allow or to refuse

acquittal of the accused persons. In compounding, decision of the victim of

the offence not to prosecute and not to continue with prosecution is most

important. In Chakdah Police Station Case No.103 of 2011 dated 16th

March, 2011, the dispute was compromised and the accused persons were

acquitted by the learned Magistrate as the terms of such compromise were

legal. The offences alleged against Sukdeb are trivial in nature. In view

thereof and as the said offences are compoundable, it cannot be said that

acquittal on the basis of such compromise does not pass the muster. In the

said conspectus, it cannot be argued by the appellants that there was no

honourable acquittal of Sukdeb. Save and except the Chakdah Police

Station Case No.103 of 2011 dated 16th March, 2011, Sukdeb had no

antecedents and there was nothing against him on record in I.B. West

Bengal, as would be explicit from the memo dated 7th July, 2015 issued by

the District Magistrate, Nadia.

16. The contents of a judgment need to be considered together and

not in isolation. A particular clause cannot be taken up and highlighted.

Considering the contents of paragraph 38, the Hon'ble Supreme Court in the

case of Pawan Kumar (supra) observed inter alia that 'all matters cannot be

put in a straitjacket and a degree of flexibility and discretion vests with the

authorities, must be exercised with care and caution taking all the facts and

circumstances into consideration, including the nature and type of lapse'. In

the said conspectus, the argument of Mr. Ghosh that the recourses detailed

under paragraph 38.4 of the judgment of Avtar Singh (supra) are not

applicable in the present case since in Pawan's case conviction or acquittal

had already been recorded before filling of the attestation form, is not

acceptable to us.

17. In our considered opinion, the learned Single Judge has rightly

directed reinstatement of Sukdeb in service in the post of Constable at the

stage from where he was dismissed/discharged from his employment and

such direction is affirmed.

18. However, we are unable to agree with the direction towards

payment of full backwages with all consequential benefits to Sukdeb. It is

well-settled that reinstatement and payment of backwages are two

independent issues and an order of reinstatement does not mean that the

person would automatically become entitled to backwages. In the facts and

circumstances of the case such direction towards payment of full backwages

with other consequential benefits to Sukdeb is not sustainable and is,

accordingly, set aside. However, the appellants shall grant notional benefits,

including pay fixation and seniority to Sukdeb for the period from when he

was dismissed/discharged till the date of his reinstatement.

19. With the above observations and directions the appeal and the

connected application are disposed of.

20. There shall, however, be no order as to costs.

21. Urgent Photostat certified copy of this judgment, if applied for, be

given to the parties, as expeditiously as possible, upon compliance with the

necessary formalities in this regard.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)