Calcutta High Court (Appellete Side)
The State Of West Bengal & Ors vs Dipak Kumar Roy on 16 October, 2023
Form No. J(2)
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 157 of 2023
The State of West Bengal & ors.
Vs.
Dipak Kumar Roy
For the Sate/writ petitioners : Mr. Tapan Kr. Mukherjee,
Senior Advocate & Ld. A.G.P.
Ms. Sangeeta Roy, Advocate
For the respondent : Mr. G. P. Banerjee, Advocate
Mr. M. N. Roy, Advocate
Mr. B. Nandy, Advocate
Hearing on : 16.10.2023
Judgment on : 16.10.2023
DEBANGSU BASAK, J.:-
1. The writ petition is at the behest of the State.
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2. The writ petition is directed against an order dated June 21, 2023
passed by the West Bengal Administrative Tribunal in O.A.178 of 2023.
3. Learned Senior Advocate appearing for the writ petitioners submits
that, private respondent was a Sub-Inspector of West Bengal Police. A
departmental proceeding was initiated as against him. The departmental
proceeding is governed by the provisions of the Police Regulations of
Bengal, 1943. In particular, he draws the attention of the Court to the
Regulation 861. He submits that, such Regulation does not enjoin a duty
upon the authorities to appoint a presenting officer in a disciplinary
proceeding. He points out that in the facts and circumstances of the
present case, the enquiry report was accepted by the disciplinary
authority. Disciplinary authority imposed punishment. A statutory
appeal was carried. Revision was also preferred by the private
respondent. Thereafter, the private respondent approached the Tribunal.
4. Learned Senior Advocate appearing for the State points out that,
the Tribunal, relied upon a Notification dated September 19, 2014. He
submits that, such notification relates to West Bengal Services
(Classification, Control and Appeal), Rules, 1971. Such Rules of 1971 do
not apply to Sub-Inspector of Police and members of subordinate police
force in terms of Rule (1)(iv) of the Rules of 1971.
5. Learned Senior Advocate appearing for the State submits that, the
Tribunal, misconstrued and misapplied the ratio of (2018) 7 Supreme
Court Cases 670 (Union of India and others versus Ram Lakhan
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Sharma). He also relies upon an unreported judgment and order dated
June 28, 2023 passed in W.P.S.T. 57 of 2016 (Hemayet Mia vs. The
State of West Bengal & ors.).
6. Learned advocate appearing for the private respondent draws the
attention of the Court to the recordings made in the enquiry proceeding.
He submits that, oral evidence of prosecution witnesses were taken
without any presenting officer. He points out that, documents were
marked as Exhibits through prosecution witness without any presenting
officer being present. Consequently, he submits that, the enquiry
proceeding stood vitiated in absence of presenting officer.
7. A departmental proceeding was initiated as against the private
respondent on June 26, 2020. At that point of time, the private
respondent was a Sub-Inspector working with the West Bengal Police.
8. An enquiry report was submitted on February 2, 2020 finding the
private respondent guilty of the charges framed.
9. The disciplinary authority passed final order dated August 31,
2020 as against the private respondent. The private respondent preferred
an appeal therefrom. Such appeal was dismissed by an order dated
October 12, 2020. A revision was preferred against the order of the
appellate authority which was dismissed by an order dated January 15,
2021.
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10. Thereafter, the private respondent approached the Tribunal by way
of O.A.178 of 2023 in which the impugned order dated June 21, 2023
was passed.
11. The Tribunal in the impugned order notes that there is no specific
mention regarding the appointment of a presenting officer in the Police
Regulations of Bengal, 1943 but such Regulation does not stop the
disciplinary authority from engaging a presenting officer. The Tribunal
referred to the Ram Lakhan Sharma (supra) and the Notification
No.4956/1(500)-F(P) dated September 19, 2014 of the Finance
Department and found that such notification makes it obligatory on the
disciplinary authority to appoint a presenting officer during the enquiry.
12. The Notification dated September 19, 2014 bearing no.4956-F(P) of
the Finance Department introduces amendments specified therein to the
West Bengal Services (Classification, Control and Appeal) Rules, 1971.
13. Rule 2(1)(iv) of the Rules, 1971 is as follows:-
"2. Application.- (1) These rules shall
apply to all Government servants except -
..................................................................
..................................................................
.................................................................
(iv) Inspectors of Police and members of
the Subordinate Police Force; and
.................................................................
..........................................."
14. By virtue of Rule 2(1)(iv) of the Rules, 1971, the disciplinary
proceeding as against the private respondent herein is not governed by
the Rules of 1971. Consequently, the Notification dated September 19,
2014 is not attracted so far as the disciplinary proceeding as against the
private respondent is concerned.
15. Ram Lakhan Sharma (supra) deals with principles of natural
justice and effect of non appointment of presenting officer in an enquiry
proceeding. It is of the following view:-
"33. The Division Bench after elaborately
considering the issue summarised the principles in
para 16 which is to the following effect:
"16. We may summarise the principles thus:
(i) The Enquiry Officer, who is in the
position of a Judge shall not act as a
Presenting Officer, who is in the position of a
prosecutor.
(ii) It is not necessary for the
disciplinary authority to appoint a Presenting
Officer in each and every inquiry. Non-
appointment of a Presenting Officer, by itself
will not vitiate the inquiry.
(iii) The Enquiry Officer, with a view to
arrive at the truth or to obtain clarifications,
can put questions to the prosecution
witnesses as also the defence witnesses. In
the absence of a Presenting Officer, if the
Enquiry Officer puts any questions to the
prosecution witnesses to elicit the facts, he
should thereafter permit the delinquent
employee to cross-examine such witnesses on
those clarifications.
(iv) If the Enquiry Officer conducts a
regular examination-in-chief by leading the
prosecution witnesses through the
prosecution case, or puts leading questions
to the departmental witnesses pregnant with
answers, or cross-examines the defence
witnesses or puts suggestive questions to
establish the prosecution case employee, the
Enquiry Officer acts as prosecutor thereby
vitiating the inquiry.
(v) As absence of a Presenting Officer by
itself will not vitiate the inquiry and it is
recognised that the Enquiry Officer can put
questions to any or all witnesses to elicit the
truth, the question whether an Enquiry
Officer acted as a Presenting Officer, will have
to be decided with reference to the manner in
which the evidence is let in and recorded in
the inquiry.
Whether an Enquiry Officer has merely acted
only as an Enquiry Officer or has also acted
as a Presenting Officer depends on the facts
of each case. To avoid any allegations of bias
and running the risk of inquiry being
declared as illegal and vitiated, the present
trend appears to be to invariably appoint
Presenting Officers, except in simple cases.
Be that as it may."
16. The private respondent is governed by the Police Regulations of
Bengal, 1943. Regulation 861 thereof is silent on the requirement of
appointment of a presenting officer in an enquiry proceeding.
17. In the facts and circumstances of the present case, the private
respondent is unable to demonstrate any prejudice being caused to him
by non appointment of a presenting officer in the enquiry proceeding.
Attention of the Court was drawn to the fact that, in the enquiry
proceeding, documents were introduced and marked as Exhibits by the
prosecution witnesses.
18 We perused the records made available to us with regard to the
enquiry proceeding. We find therefrom that, prosecution witnesses made
statements before the enquiry officer which were recorded by the enquiry
officer. In course of making such statements, the prosecution witnesses
produced certain documents which were marked as Exhibits. Nothing is
on record to show or suggest that, the enquiry officer placed leading
statements to the prosecution witnesses.
19. The issue of prejudice being caused by absence of a presenting
officer was not taken at the time of the enquiry proceeding. In fact, it was
not taken till the Tribunal stage.
20. That apart, the prosecution witnesses were allowed to be cross-
examined by the private respondent. The cross-examination was
recorded in the question answer format.
21. In such circumstances, we are unable to return a finding that, the
introduction of documents through the prosecution witnesses and
recording of the statements by the enquiry officer of the prosecution
witnesses, caused any prejudice to the private respondent, in the facts
and circumstances of the present case.
22. The ratio laid down in Ram Lakhan Sharma (supra) was followed
and applied in Hemayet Mia (supra) .
23. In view of the discussions made above, it would be appropriate to
set aside the impugned order of the Tribunal.
24. Learned advocate appearing for the private respondent submits
that, the private respondent raised other points before the Tribunal in
the Original Application and therefore, it is appropriate that, the Original
Application be heard and disposed of by the Tribunal on merits.
25. The contention of the private respondent in this regard being
reasonable is accepted.
26. The Tribunal is requested to hear and dispose of the Original
Application on merits save and except the issue with regard to the
prejudice and breach of principles of natural justice as decided herein.
Tribunal is requested to hear and dispose of O.A.178 of 2023, preferably
within a period of four months from the date of communication of this
order to it.
27. WP.ST 157 of 2023 is disposed of without any order as to costs.
(Debangsu Basak, J.)
28. I agree.
(Md. Shabbar Rashidi, J.)
CHC
