Service Law; State of West Bengal Vs. Ratan Sarkar [Calcutta High Court; 03-08-2016]

Service Law – Whether an employee, who has been dismissed from service after a departmental enquiry, is entitled to be reinstated on his acquittal in a criminal case – Held, When the prayer made before the Tribunal was for setting aside the dismissal order on the basis of the judgment in the criminal case, it ought to have considered the fact that a Coordinate Bench had already upheld the dismissal order. Without that order having been set aside it was not proper for the Tribunal to grant reinstatement. However harsh the view may appear in the facts and circumstances of the case, when the Police Regulations do not provide for such a remedy, the Tribunal could not have granted such relief. The petition is therefore allowed and the order of the Tribunal is quashed and set aside.

# Criminal Case


IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE

The Hon’ble Justice Nishita Mhatre
And
The Hon’ble Justice Rakesh Tiwari

Judgment on : 03.08.2016

WPST 20 of 2016

The State of West Bengal & Others… Petitioners
vs.
Ratan Sarkar … Respondent

For the Petitioners/State : Mr. Yasin Ali; Mrs. Tapati Samanta

For the Respondent : Mr. Moloy Basu; Mr. Himadri Sekhar Chakraborty; Mr. Asit Kr. De

Nishita Mhatre, J.:

1. The short question involved in the present petition is whether an employee, who has been dismissed from service after a departmental enquiry, is entitled to be reinstated on his acquittal in a criminal case.

2. The facts in this case are not disputed. Two persons came to the office of the Reserve Officer claiming that they had been declared fit for appointment as a Constable by the Interview Board. However the Officer concerned suspected that someone had impersonated them in order to procure employment and Raiganj Police Station Case No.383 of 2007 was started against them under Sections 419, 420 and 120B of the IPC on the basis of his complaint dated 9th October, 2007. The respondent, a police constable in the State Armed Police, was posted at the relevant time at Raiganj. He applied for anticipatory bail and was granted the same on 28th January, 2008 by this Court. In the meantime the respondent had been transferred. On obtaining the anticipatory bail and after surrendering to the Raiganj Court as directed by this Court, the respondent sought to join at the Jalpaiguri Police Lines. But he was not permitted to do so. His second representation was also rejected. A charge sheet was issued on 23rd June 2008 to the respondent by the Superintendent of Police Jalpaiguri in proceeding No.16 of 2008. The allegation against him was that he had tarnished the image of the police in the eyes of public by his activities which had led him to be an accused in a criminal case. The respondent was asked to submit his explanation. However, as that was not found acceptable, it was decided that a departmental enquiry would be held against him. The charge sheet in the criminal case was submitted on 28th June, 2008, adding the name of the respondent as one of the accused persons. The trial proceeded against him as well.

3. The respondent attended the disciplinary proceedings and after the enquiry was completed, the second show cause notice was issued to him. He filed OA 1034 of 2011 challenging the same. By an order dated 17th November, 2011 the West Bengal Administrative Tribunal dismissed the original application and directed the disciplinary authority to expedite the recording of the final order after considering the representation made by the respondent against the second show cause notice. On considering the material before it, the disciplinary authority dismissed the respondent from service on 9th January, 2012. The reason for the dismissal was that he was involved in Raiganj Police Station case No.383 of 2007 and had thus tarnished the image of the police in the eyes of public by such activities. It was also noted that in the past he had suffered two major punishments for “misrepresentation by manipulating superior’s signature on a vital official paper” and for unauthorised absence. Besides this, he was awarded four minor punishments during the 15 years of his service. He had also been granted extraordinary leave for 229 days on 14 occasions. Considering the charges levelled against him and the fact that the criminal case against him was pending, the disciplinary authority dismissed him from service as it was of the view that there were no mitigating circumstances in his past service record. The appellate authority confirmed the order of the disciplinary authority by its order dated 11th April, 2012.

4. The respondent challenged the order of dismissal in OA 763 of 2012. By an order dated 16th April, 2013 the Tribunal upheld the order of dismissal. The Tribunal was of the view that the punishment of dismissal could not be considered to be either unfair or disproportionate having regard to the material facts in the case. More than one and half years later on 15th December, 2014 the Additional Chief Judicial Magistrate, Raiganj, Uttar Dinajpur acquitted the respondent in GR case 974 of 2008 arising out of Raiganj Police Station case No.383 of 2007. The Criminal Court convicted one of the three accused persons under Section 419 IPC. As regards the second accused person, the Court held that the prosecution has failed to prove its case against him beyond all reasonable doubt and therefore acquitted him. With respect to the respondent, the Court came to the conclusion that there was no iota of evidence against him and therefore he deserved to be acquitted.

5. On securing this judgment of acquittal, the respondent submitted a representation to the Superintendent of Police calling upon him to reinstate him in his original post. He pleaded that since he had been acquitted in the criminal trial, he was entitled to be reinstated in service and that the order of dismissal passed against him should be recalled.

6. The Superintendent of Police rejected this prayer made by the respondent on 13th January, 2015. Aggrieved by that decision the respondent filed OA 66 of 2015. The reliefs sought by him were as follows:

“(a) An order do issue directing the respondent authorities to forthwith re-instate your applicant in service in the light of the judgment delivered by the Ld. Criminal Court on 15.12.2014 without any further delay and to set- aside/cancel/revoke/rescind/quash the Memo No.59/RO dated 13.01.2015.

(b) An order do issue directing the respondent authorities to cancel/set aside/quash/revoke/rescind the entire departmental proceeding including issuance of charge sheet, enquiry officer’s report, final order of punishment, appellate authorities order and to reinstate your applicant in service immediately in light of the Criminal Courts judgment.

(c) A further order do issue directing the respondent authorities to transmit records pertaining to the instant case so that conscionably justice can be done.

(d) Any other appropriate order/orders direction/directions as this Hon’ble Tribunal may deem fit and proper to protect the right of the applicant and in the ends of justice.”

7. After considering the relevant material on record and the judgments cited at the bar, the Tribunal by its judgment dated 17th December, 2015 concluded that the respondent was entitled to be reinstated in service as he had been honourably acquitted in the criminal trial. The Superintendent of Police, Jalpaiguri was directed to reinstate the respondent in service and to regularise his period of absence from the date of dismissal till his date of joining within six months of the communication of the order.

8. The State of West Bengal and the officers of the police department have filed the present petition challenging the order of the Administrative Tribunal.

9. Mr. Yasin Ali, the learned Counsel appearing for the petitioner has argued that the judgment of the Tribunal is vitiated as it is hit by the principles of res judicata. He submitted that when a coordinate bench of the Tribunal had passed an order in OA 763 of 2012 affirming the order of dismissal passed by the authorities against the respondent, the Tribunal could not have, in any subsequent proceedings, taken a different view and directed reinstatement of the respondent. He further submitted that the Tribunal has transgressed its jurisdiction by ignoring the decision of a coordinate bench which found that the order of dismissal against the respondent was justified. The learned Counsel pointed out that merely because the respondent had been acquitted in a criminal trial it would not necessarily mean that he was entitled to reinstatement in service. He urged that it is now well-settled that proceedings in a criminal trial and those in a departmental enquiry stand on different footings, inasmuch as, the nature of proof required in both matters is not the same; the decision of the disciplinary authority is based on preponderance of probabilities whereas in a criminal trial the prosecution must prove the guilt of the accused to the hilt and beyond all reasonable doubt. The learned Counsel further submitted that the charge-sheet had been issued to the employee because he had tarnished the name of the police department by being involved in a criminal case where the charges levelled were under Sections 419, 420 and120B of the IPC. The learned Counsel then submitted that reinstatement is not a necessary corollary on obtaining an order of acquittal. An employee, who has already been awarded a punishment in a disciplinary enquiry, is not entitled to be reinstated unless the service rules specifically provide for such relief. Mr. Yasin Ali was at pains to point out that the respondent had not relied on any such rule. He submitted that there must be finality to judicial proceedings and the employee cannot insist on reinstatement only because he has been exonerated in a criminal trial.

10. Mr. Moloy Basu, the learned Counsel appearing for the respondent, drew our attention to the fact that the statement of allegations against the respondent contained in the charge-sheet issued to him on 23rd June, 2008 was that the respondent had tarnished the image of the police in the eyes of public by being involved in a criminal case. He further submitted that once the respondent had been acquitted in the criminal case which had allegedly tarnished the image of the police, the substratum of the charge against the respondent in the departmental enquiry no longer existed and therefore the respondent was entitled to reinstatement.

11. Indubitably the respondent has been acquitted in a criminal trial of the charges levelled against him under Sections 419, 420 and 120B of the IPC after he had been dismissed from service on the basis of a disciplinary enquiry. There is no dispute that the charge-sheet was issued to the respondent by the Police department only because he was involved in the Raiganj P.S. case. There is also no dispute that there is no rule in the Police Regulations of Bengal empowering the authorities to reinstate the person in service after he has been found guilty in a departmental enquiry only because he has been exonerated in a criminal trial.

12. With the aforesaid backdrop, it is now necessary to consider some of the judgments cited at the bar. In the celebrated case of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd reported in (1999) 3 SCC 679 the Supreme Court held after considering its earlier judgments, that if the departmental proceedings and the criminal case are based on identical or similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature involving a complicated question of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal trial. This judgment does not reflect upon a situation with which we are confronted. The departmental enquiry had already resulted in a dismissal and the acquittal in the criminal trial has been awarded after more than one and half years.

13. Mr. Basu was at pains to point out that since the substratum of the charge-sheet issued departmentally had been swept away by the respondent’s acquittal in the criminal case, the charge that that he had tarnished the name of the police by being involved in a criminal case cannot be sustained. He has relied on the judgment of a learned single Judge of the Bombay High Court in the case of Abdulla A Latifshah vs. Bombay Port Trust & Ors reported in (1992) LLJ 226 to submit that when there is an honourable acquittal and complete exoneration of the accused of a Criminal Court, a departmental enquiry cannot be held. This judgment has no application to the facts in the present case. The employee here was dismissed prior to his acquittal in the criminal case. The argument of Mr. Basu was that a general charge was levelled against the respondent, namely, that he had tarnished the image of the police force by his behaviour. According to him this cannot be considered as a charge under the Disciplinary and Appeal Rules applicable. The Court in Abdulla’s case (supra) held that in a case of an honourable acquittal by a Criminal Court, normally the employer ought not to start proceedings in a departmental enquiry unless there are strong and sound reasons to do so. Again these observations which have been relied on by Mr. Basu are of no avail to the respondent herein as they have been made in the fact situation before the Court where the criminal trial was completed prior to the employee being proceeded with in a departmental enquiry.

14. The learned Counsel has also relied on the judgment of the Supreme Court in

# G. M. Tank vs. State of Gujarat & Ors reported in (2006) 5 SCC 446

The Supreme Court concluded that in the case before it the departmental proceedings and the criminal case were based on identical or similar set of facts and that the charge in the departmental case against the employee and the charge in the Criminal Court were the same. The Court observed that it was a case of no evidence against the employee. Under these circumstances the Court held that it would be unjust and unfair to allow the findings recorded in the departmental proceeding to continue.

15. In the case of

# The Deputy Inspector General of Police & Anr vs. S. Samuthiram reported in (2013) 1 SCC 598

the Supreme Court dealt the meaning of honourable acquittal. After taking a conspectus of its earlier decisions the Court observed thus:

“24. We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under suspension and on acquittal by the criminal court, he be reinstated. In such cases, the re- instatement is automatic. There may be cases where the service rules provide in spite of domestic enquiry, if the criminal court acquits an employee honourably, he could be reinstated. In other words, the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. Such provisions are absent in the Tamil Nadu Service Rules.

25. In view of the above mentioned circumstances, we are of the view that the High Court was not justified in setting aside the punishment imposed in the departmental proceedings as against the respondent, in its limited jurisdiction under Article 226 of the Constitution of India. (Emphasis supplied) The Court was of the view that the High Court was not justified in setting aside the punishment imposed in the departmental enquiry after the employee had been acquitted in the criminal trial as the Service Rules did not provide for such an eventuality.

16. Mr. Basu has cited the judgments of the Supreme Court in the case of

# General Manager (Operations) State Bank of India & Anr vs. R. Periyasamy reported in (2015) 3 SCC 101

# S. Bhaskar Reddy & Anr vs. Superintendent of Police & Anr reported in (2015) 2 SCC 365

and

# Joginder Singh vs. Union Territory of Chandigarh & Ors reported in (2015) 2 SCC 377

These judgments, in our opinion, are not relevant for the present case.

17. In R. Periyasamy‘s case (supra) the Supreme Court considered the effect of an acquittal on departmental proceedings and observed that the departmental proceeding can proceed even though the person is acquitted when the acquittal is other than “honourable acquittal” because of the nature of proof required in the departmental enquiry.

18. In the case of Joginder Singh (supra), the Supreme Court, after considering S. Samuthiram‘s case (supra), observed that where the acquittal of an employee is “honourable”, the employee should not be deprived from being appointed to the post, in the public employment, by declaring him unsuitable.

19. In the case of S. Bhaskar Reddy (supra), the misconduct was committed by the employees while in service. They were charge-sheeted departmentally and a criminal case was also initiated against them for the same acts of misconduct. The original application filed by them challenging the dismissal orders was dismissed by the Tribunal and the order was affirmed by the High Court. The Supreme Court was of the view that since they had been honourably acquitted, the Tribunal and the High Court ought to have considered this fact and consequently no order of punishment should have been imposed.

20. These judgments have no application because the order of acquittal was passed prior to the order of dismissal and in these circumstances the Supreme Court was of the view that the order of “honourable acquittal” should be taken into consideration before the disciplinary authority imposed a punishment for the same charges.

21. The judgment in the case of

# State of West Bengal & Ors vs. Sankar Ghosh reported in (2014) 3 SCC 610

has been rendered by the division Bench of this Court in a fact situation which is almost identical to the present case. A sepoy working in the 2nd battalion of Kolkata Armed Police was charged for having committed offences under Sections 392, 395 and 412 of the IPC read with Section 25 and 27 of the Arms Act. He was arrested and immediately suspended. Later, he was remanded to police custody and then to judicial custody. Thereafter he was released on bail. Then a charge-sheet was issued to him by the department setting out the fact of his arrest and involvement in the criminal case. The last paragraph in the charge-sheet was as follows:

“4) You being a member of the disciplined force, your involved in such type of heinous crime tarnished the image/prestige of the Kolkata Police force in the estimation of the members of the public in large.”

This para is identical to the charge contained in the statement of allegation against the respondent where it has been mentioned as follows:

“1. It appears from the joining explanation dated 23-2.08 submitted by Const./1680 Ratan Sarkar of Line O.R Jalpaiguri together with the copy of enclosures regarding anticipatory bail granted against him in the High Court, Kolkata on 28-1-08 and subsequent prayer dated 5-3-08 submitted by Si-Biman Bose, In-Charge, Karnajhora O.P under PS Raiganj, Dist.-Uttar Dinajpur that during incumbency at SAP 4th Bn. Raiganj, Kasba, Dist.-Uttar Dinajpur, Const./1680 Ratan Sarkar of Line O.R Jalpaiguri (formerly Const./254 of SAP 4th Bn., Raiganj, Kasba, Dist.- U/Dinajpur) is involved in Raiganj PS Case No.-383/07 dated 9-10-07 u/s 419/420 IPC. Thus he has tarnished the image of police in the eyes of public by his such activities.” (Emphasis supplied)

22. In Sankar Ghosh (supra), after holding a departmental enquiry the employee was dismissed from service. The appellate authority confirmed that order. Two years thereafter he was acquitted in the criminal trial. The employee therefore filed proceedings before the Administrative Tribunal for reinstatement in service as did the present respondent. The Tribunal allowed the application and directed reinstatement of the employee. The State preferred a writ petition against this order of the Tribunal before the High Court. The High Court confirmed the order of the Tribunal. Aggrieved by that order the State challenged the order before the Supreme Court. The Supreme Court observed that the employee in that case had not been honourably acquitted as the acquittal was based on the fact that the accused employee was not identified in the TI parade. The Court further reiterated its observations in S. Samuthiram (supra) and concluded thus:

“16. We indicate that the Respondent could not lay his hand to any rule or Regulation applicable to the Police Force stating that once an employee has been acquitted by a Criminal Court, as a matter of right, he should be reinstated in service, despite all the disciplinary proceedings. In otherwise there is no rule of automatic reinstatement on acquittal by a Criminal Court even though the charges levelled against the delinquent before the Enquiry Officer as well as the Criminal Court are the same. On this aspect, reference may be made to para 27 of the judgment in S. Samuthiram (supra), which reads as under:

27. We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under suspension and on acquittal by the criminal court, he be reinstated. In such cases, the reinstatement is automatic. There may be cases where the service rules provide that in spite of domestic enquiry, if the criminal court acquits an employee honourably, he could be reinstated. In other words, the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. Such provisions are absent in the Tamil Nadu Service Rules.

17. Regulation 4 of Chapter 19 of the Police Regulations of Calcutta, 1968, which is applicable to the case in hand, specifically provides that acquittal or discharge in a criminal proceeding shall not be a bar to award punishment in a departmental proceeding in respect of the same cause or matter. The said Regulation is extracted below for each reference:

4. Discharge or acquittal not a bar to departmental punishment. – an order of discharge or acquittal of a Police Officer shall not be a bar to the award of departmental punishment to that officer in respect of the same cause or matter.

18. Above rule indicates that even if there is identity of charges levelled against the Respondent before the Criminal Court as well as before the Enquiry Officer, an order of discharge or acquittal of a police officer by a Criminal Court shall not be a bar to the award of the departmental punishment. The Tribunal as well as the High Court have not considered the above-mentioned provision and have committed a mistake in holding that since the Respondent was acquitted by a Criminal Court of the same charges, reinstatement was automatic. We find it difficult to support the finding recorded by the Tribunal which was confirmed by the High Court. “

23. It is difficult now to take any other view in the present case. After considering all the judgments cited before us we are of the view that the judgment in the case of Sankar Ghosh (supra) is applicable to the present case. It is true that the charge against the respondent has not been proved in the criminal trial. In fact, he has been honourably acquitted. However, there is no provision under the Police Regulations to reinstate an employee who has been acquitted of a criminal charge. We do not, therefore, find that the Tribunal was correct, in allowing the original application. In almost all the cases cited at the bar the departmental enquiry was either pending simultaneously with the criminal proceedings or had progressed to a certain extent till it was stayed during the pendency of the criminal trial. It is only in the case of Sankar Ghosh (supra) that the fact situation is the same as the one before us. When the prayer made before the Tribunal was for setting aside the dismissal order on the basis of the judgment in the criminal case, it ought to have considered the fact that a Coordinate Bench had already upheld the dismissal order. Without that order having been set aside it was not proper for the Tribunal to grant reinstatement. However harsh the view may appear in the facts and circumstances of the case, when the Police Regulations do not provide for such a remedy, the Tribunal could not have granted such relief.

24. The petition is therefore allowed and the order of the Tribunal is quashed and set aside.

25. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.

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