Kamalakshi Charan Bagchi vs State of West Bengal

Ashok Kumar Mathur, C.J.—This is an appeal directed against an order dated May 5, 1988 passed by the learned single Judge whereby the learned single Judge has dismissed the writ petition and directed that the Respondents may proceed with the departmental enquiry in accordance with law and it was observed that the Petitioner should be given all opportunities to defend himself and for this purpose he should be furnished with a copy of the report of the preliminary enquiry and related documents, if any, of which he has not been given inspection so far. The Learned single Judge further directed to complete the enquiry within a period of one hundred and twenty days from the date of communication of the order. It was further directed that the Petitioner should co-operate with the enquiry and in case he does not, the Respondents may hold and conclude the enquiry ex parte and pass the final order within the specified time. Aggrieved against this order the present appeal has been filed by the writ Petitioner.

Brief facts which are necessary for disposal of the present appeal are that the Petitioner was serving as Sub-Inspector of Police and he was served with a charge sheet on October 28, 1977 and a departmental enquiry was initiated on the basis of the said charge sheet. The charge sheet relates to misconduct of the Petitioner while he was posted as a Sub-Inspector of Police at Nakashipara Police Station in the District of Nadia in the year 1975. During the course of enquiry the Petitioner challenged the order of the Respondent authorities dated January 12, 1978 appointing Sri H. Chakravarty as Enquiry Officer. He also challenged another letter dated January 3, 1983 questioning the authority of Sri B. Chakravarty, successor to the earlier Enquiry Officer. Ultimately he served a notice of demand of justice and then filed the present writ petition and obtained an interim order restraining the Respondents from proceeding further with the enquiry. This order of stay continued till May 5, 1988 when the writ petition was dismissed.

The contention of the Learned Counsel for the Appellant was that the incident was of 1975 and no action could be taken thereon after a long lapse of about 3 years in view of the provisions of Section 42 of the Police Act which provides inter alia that allegations and prosecutions against any person which may be lawfully brought for anything done or intended to be done under the provisions of the Act or under the general police powers shall be commenced within three months after the act complained of and not otherwise. The learned single judge field that Section 42 has no relevance in the present case because it relates to prosecution for acts done in execution of his duty. In the present case the allegation was for receiving illegal gratification in course of discharging his duties and that cannot amount to acts done in execution of his duties. Therefore, the learned single judge negatived the contention.

Next it was contended by the Learned Counsel for the Respondent that the writ Petitioner was transferred from one police station to another police station which is not under the disciplinary control of the Superintendent of Police. This contention was also negatived by the learned single Judge. The learned single Judge held that the Petitioner may be transferred from one police station to another police station in West Bengal but that does not mean that action initiated by the disciplinary authority will come to an end. The learned single Judge ultimately concluded that looking to the gravity of the charges it will not be proper to drop the departmental enquiry and therefore the learned single Judge declined to interfere with the departmental enquiry and directed that the enquiry should be completed within the time specified in the order. It was observed by the learned single judge that the Petitioner is responsible for the delay as he obtained an interim order of stay which prevented further proceeding in the departmental enquiry. Therefore, the learned single judge held that the prayer for dropping the departmental enquiry cannot-be countenanced and he dismissed the writ petition with the observations referred to above.

Aggrieved against this order the writ Petitioner/Appellant filed the present appeal. During the pendency of the appeal the writ Petitioner/Appellant filed a supplementary affidavit, a copy of which was served to the Superintendent of Police, Nadia and the Deputy Commissioner of Police for Departmental Enquiries and Vigilance Commission, Government of West Bengal, but nobody appeared to contest this application and no affidavit was filed. The grievance raised by the Appellant in this supplementary affidavit is that another person, namely Mihir Chakravarty, who is also similarly situated i.e. a departmental enquiry was pending against him, has been promoted to the rank of Inspector of Police sometime in 1981, but the Petitioner was not given promotion due to pendency of the departmental enquiry. Therefore, the Petitioner sought parity of treatment and the Division Bench after considering the matter observed that the Appellant has suffered immense prejudice for not completing the departmental enquiry for no just cause for years together despite direction given by the Trial Court. It was observed by the Division Bench that -there is a gross discrimination against the Petitioner in not giving promotion, whereas a similarly circumstanced person have been promoted to the rank of Inspector of Police long back Therefore, the Division Bench directed that the Appellant should be promoted forthwith. However, it was clarified that this order will not stand in the way of withholding promotion against the Appellant, if for any other independent cause of action not connected with the departmental proceeding in question, such promotion can lawfully be withheld by the Respondents. It was also observed that if promotion is given to the Appellant the same will abide by the result of the appeal. This order was passed by the Division Bench comprising of Justice G.N. Ray and Justice P.K. Banerjee (as Their Lordships then were) on December 19. 1988. Again when the matter was taken up for hearing by this Division Bench another application being C.A.N. no, 7151 of 2002 was filed reiterating the same prayer that the enquiry proceeding should be dropped at this distance of time. An affidavit in opposition to this application was filed by the Respondent authorities but it was nowhere pointed out why the enquiry proceeding has not been concluded despite the order passed by the Trial Court way back in 1988. It is true that the charges against the Petitioner are very grave in nature and it was served way back in 1977, though the Petitioner obtained a stay order from this Court, but in 1988 when the writ petition was dismissed, no stay order was passed and there was no impediment on the Respondent authorities to conclude the enquiry proceeding. It appears that no step has been taken to prosecute the departmental enquiry. It is true that the departmental enquiry remained stayed till 1988 but after 1988 there was no stay, neither any stay order was granted by the Division Bench and there was no prohibition against the Respondent authorities to proceed with the departmental enquiry. But for the reasons best known to the Respondents the departmental enquiry was not proceeded and in the affidavit in opposition filed by the Respondent authorities they have not given any reason why departmental enquiry was not proceeded against the Appellant after 1988 except change of enquiry officer from time to time. It shows that the Respondent authorities themselves were not interested to proceed with the departmental enquiry after 1988 till 2003. When we posed the question to the Learned Counsel for the Respondent, they failed to point out any reason for withholding the departmental enquiry which started in 1977 and today in 2003 the said departmental enquiry has not seen the end of it. The question before us is that should the stale inquiry be allowed to continue more so when the Division Bench has directed the State Government to promote the incumbent to the post of Inspector. Learned Counsel for the Appellant has seriously urged before us that when the Respondent authorities are not interested in prosecuting the departmental enquiry, then no useful purpose will be served by permitting this departmental enquiry to continue. Learned Counsel for the Appellant in support of her contention invited our attention to a decision of the Apex Court in the case of Zunjarrao Bhikaji Nagarkar Vs. U.O.I. and Others, . This is a case in which a departmental enquiry was initiated against the incumbent against the quasi judicial order passed by him and it was found that the incumbent committed error in wrongly applying the law and there was no evidence that this was done with improper motive or due to extraneous consideration. In this background it was held that the charge sheet was not maintainable. In the present case we are not sitting over the question whether the charge sheet was properly framed or not. Suffice it say that there are serious allegations that the Appellant has misused his authority and arrested some people and then released them upon receiving some consideration. This kind of abuse of power by the incumbent cannot be countenanced.

Our attention was also invited to another Apex Court decision in the case of State of Andhra Pradesh Vs. N. Radhakishan, In this case their Lordships said that delay in conclusion of departmental enquiry has to be considered taking into account all the relevant facts and circumstances and the prejudice which is likely to cause to the incumbent. It was observed that the role of each employee not particularized in the charge sheet and there was a generalization on charges that several employees of Municipal Corporation permitted unauthorized construction with their collusion, but there was no particular allegation against any particular employee. Their Lordships after taking into consideration the overall picture felt persuaded not to allow the departmental enquiry initiated on the basis of vague and general allegation of corruption. However, their Lordships emphasized that each case should be examined and no hard and fast rule can be laid down.

Our attention was also invited to a decision in the case of The State of Madhya Pradesh Vs. Bani Singh and another, wherein their Lordships held that the department was aware of involvement of officer in alleged irregularities but they did not initiate departmental enquiry. Disciplinary proceeding was initiated atainst the incumbent after more than 12 years and on that consideration their Lordships felt persuaded that this kind of inordinate delay in initiating departmental enquiry for the delinquencies which is alleged to have been committed 12 years back cannot be allowed to continue. Therefore, their Lordships quashed the departmental enquiry.

As already mentioned above that the question of delay in departmental enquiry has, of course, great role to play, it will depend upon each case and no hard and fast rules can be laid down.

Now coming back to the facts of the present case, the incumbent was served with a charge sheet way back in 1977, then he filed a writ petition and obtained an order of injunction, as a result of which no further step could be taken in the departmental enquiry upto 1988 when ultimately the writ petition failed. Thereafter, aggrieved against the order of the Trial Court, the incumbent preferred an appeal and during the pendency of the appeal an application was moved before the Division Bench and the Division Bench by its order dated December 19, 1988, as aforesaid, directed that the incumbent should be promoted, however, subject to the result of the appeal. This was done because another person similarly situated have been promoted, but the Appellant was not given similar treatment and the Division Bench felt persuaded to pass the aforesaid order. In the present case it is not that the Respondent authority alone was responsible for the inodinate delay. It is true that the Respondent authority is responsible for not proceeding with the delinquency after 1988. But looking to the nature of the allegations that the incumbent has misused his power and detained some persons and released them after receiving some consideration, the nature of the charge is a very severe one and this tendency amongst the police personnel is not new and it has increased considerably. In the present state of affairs, therefore, it will not be correct to interfere with this departmental enquiry and put an end to it on the ground of inordinate delay in completing the departmental enquiry. The probity in the administration is fast eroding therefore in order to maintain the sanity every delinquency has to be pinned down. Therefore, we don''t propose to interfere with this departmental enquiry but at the same time we would not like injustice to be done by the inaction on the part of the Respondent authorities. There should be justice with every incumbent however illegally he has acted, each one should get a fair play in the matter. Therefore, we direct the. Respondent authorities to complete the departmental enquiry within 120 days from the date of receipt of this order and in case the Respondent authorities fait to complete the departmental enquiry within the time stipulated then the delinquent shall be deemed to have been exonerated. The Appellant/writ Petitioner is directed to co-operate in the departmental enquiry and in case he fails to cooperate, the Respondent authorities will be at liberty to proceed with the departmental enquiry ex parte. We dispose Of the appeal with the aforesaid direction. There will be no order as to costs.

Jayanta Kumar Biswas, J.

I agree.