Nemat Nag Choudhury vs State of West Bengal

Arun Kumar Dutta, J.—By the instant writ application under Article 226 of the Constitution of India the Petitioner has prayed the Court for issue of writs as follows:

(a) A writ of and/or a writ in the nature of mandamus commanding the Respondents and each of them their men agents and servants

(i) to withdraw, cancel and rescind the charge-sheet being No. 8331-J dated 25.5.1993 and to quash the order dated 10.12.93 passed by the Commissioner for Departmental Enquiries, Vigilance Commission, West Bengal, and the proceeding being G.R. No. 204/90 pending before the 11th Metropolitan Magistrate, Calcutta ;

(ii) to forthwith direct the appropriate Respondents to disburse all dues in the shape of pension, leave salary, gratuity increment, provident fund, etc. ; (iii) to direct the Court below i.e. 11th Metropolitan Magistrate to admit and allow the compromise petition in the light of the decision of the Hon''ble Supreme Court of India reported in Criminal Law Journal 1988 S.C. 121;

(b) A writ and/or a writ in the nature of certiorari commanding Respondents and each of them to certify and transmit the records relating to the criminal case No. G. R. 204/90 to this Hon''ble Court for doing conscionable justice by quashing the purported charge-sheet and the order and to declare the said proceeding is not maintainable ;

(c) A writ and/or a writ in the nature or Prohibition commanding the appropriate Respondents and each of them from giving any effect and/or from acting any further pursuant to and in furtherance of the said criminal case being case No. 204/90 and the purported charge-sheet dated 28.5.1993 and order dated 10.12.1993 and to direct the Court below to effect the compromise petition made by the dc facto complainant pending before the said Metropolitan Magistrate Court;

The Petitioner has also prayed for an Injunction restraining the Respondents from giving any effect and/or further effect to and/or from taking any step pursuant to and in furtherance of the impugned charge-sheet No. 8331-J dated May 28, 1993 and the order dated December 10, 1993.

The Petitioner contends that he was in the field of education all-through his life, and had been rendering his service to the Government of West Bengal in the Judicial Department as Assistant Public Prosecutor since 1975 till May 31, 1993, when he had retired from the service on superannuation. During his tenure of service as Assistant Public Prosecutor he has been falsely implicated in a criminal case for alleged offence punishable under Sections 420/170, Indian Penal Code, before the Metropolitan Magistrate, Eleventh Court at Calcutta. The de facto complainant of the said case, S. N. Chaudhury, who has since died on October 22, 1992, had made an application before the Court for withdrawal of the said case against the Petitioner by compounding the- alleged offence in writing. But the said criminal case, being G.R. case No. 204/90, is still pending, and no charge has been framed in the matter as yet, resulting in abuse of his (Petitioner''s) personal liberty, which ought to have been compounded. The Petitioner also sought to contend that after the demise of the de facto complainant he has not been substituted as yet.

The Petitioner further contends that on the self-same allegations an Enquiry proceeding has also been initiated against him, being No. 8831-J dated May 28, 1993, which was served upon him on June 3, 1993, after his retirement from the service on May 31, 1993. The Petitioner had challenged the maintainability of the said Departmental proceedings which had been rejected by the Commissioner for Departmental Enquiries, Vigilance Commission, by order dated December 10, 1993. It is contended by the Petitioner that since there is no master and servant relationship between him and the State Government after his retirement on May 31, 1993, the relevant Departmental proceedings cannot be proceeded against him. He has also been deprived of his legitimate right to draw pension after his retirement and to receive his legitimate emoluments, leave salary, gratuity, provident fund, etc. in violation of the principles of natural justice and fair play. There has been colourable exercise of power by the Respondents in not giving him his legitimate pecuniary dues, amounting to victimisation, causing hardship to him and the member^ of his family. Hence the instant Writ Application for the reliefs prayed for in the absence of any other adequate alternative remedy available to him.

The Petitioner''s writ application is opposed by the opposite party State of West Bengal.

By the instant writ application the Petitioner has mainly sought for quashing the charge-sheet issued against him in the aforesaid relevant Departmental proceedings, being No. 8331-J dated May 28, 1993, pending before the Commissioner for Departmental Enquiries, Vigilance Commission, West Bengal, as also the aforesaid relevant criminal proceedings, being G.R. case No. 204/90, pending before the Eleventh Court of Metropolitan Magistrate at Calcutta. The prayer for quashing the aforesaid two separate proceedings pending before two separate authorities could hardly be entertained. Should there be any illegality, impropriety or incorrectness on the part of the learned Magistrate in proceeding with the aforesaid relevant criminal case it is open to the Petitioner to move the Revisional Court for appropriate redress according to law. The writ Court cannot certainly be allowed to be exercised for exercising the function of a Revisional Court.

As regards the aforesaid relevant criminal case the Petitioner sadly sought to contend that even though the de facto complainant S. N. Choudhury has since died, he has not been substituted as yet. To that I would note with a minute of dissent that there is no provision in the Code of Criminal Procedure, 1973, for substitution of de facto complainant/informant, as applicable to civil proceedings under the. Code of Civil Procedure. The State is the prosecutor in case of cognizable offences where the death of informative facto complainant is of little consequence. The mere fact that the informant/We facto complainant, S. N. Choudhury, is stated to have since died could clearly, therefore, be no ground for not proceeding with the relevant criminal case. It had also been contended on behalf of the Petitioner, as indicated above, that the alleged offence had been compounded by the aforesaid informant by filing an application for withdrawal of the case before the Court. It is indeed for the learned Magistrate concerned to consider whether there was really any valid application by the de facto complainant for compromise/ withdrawal which could be entertained by the Court according to law, and whether the offence alleged is compoundable or not in terms of the provisions of Section 320 of the Code of Criminal Procedure. It is certainly not for the writ Court to enter into such questions of fact and law, which could be agitated before the appropriate Court. If the Petitioner is aggrieved by any order of the learned Magistrate in respect thereof, it is open to him to exercise (he Revisional Court for appropriate redress, as may be available to him according to law. But, unhappily for him, there is not the merest and faintest whisper within the four corners of the writ application that he is aggrieved by any specific order of the learned Magistrate in the relevant criminal proceedings. He has also feebly sought to contend in para. 5 of his application that there has been inordinate delay in disposing of the relevant criminal proceedings since January 16, 1990, and no charge has been framed in the matter as yet, resulting in abuse of his personal liberty. There is nothing on record to indicate that there had really been any inordinate delay in proceeding with the relevant case. There is neither any material on record to indicate which of the two parties, the prosecution or the accused, is responsible for the delay in the relevant proceedings, if there be any. Even most charitably assuming for the sake of argument that there has been delay in the aforesaid relevant criminal proceedings infringing the Petitioner''s right to speedy trial, as guaranteed by Article 21 of the Constitution, it is open to him to move the Revisional Court u/s 482 of the Code of Criminal Procedure for appropriate redress. The writ Court could not clearly be exercised for any such relief. The writ Court would neither exercise its discretion in favour of the Petitioner when alternative efficacious remedy is available to him according to law.

As regards the aforesaid relevant departmental proceedings pending before the Commissioner for Departmental Enquiries, Vigilance Commission, West Bengal, in terms of the charge-sheet issued against the Petitioner, being No. 8331-J dated May 28, 1093, all that the petitioner sought to contend is that the same had been served upon him on June 3, 1993,. after his retirement from service on superannuation on May 31, 1993, when there was no master and servant relationship between him and the Stale of West Bengal. The relevant Departmental proceeding against him is not maintainable according to law and the relevant Rules as such. But the said contention could neither be sustained. With things, as they are, the relevant Departmental proceedings, undisputedly, had been instituted on May 28, 1993 when the statement of charges had been issued to the Petitioner, being No. 8831-J dated May 28, 1993, while he was very much in service. The mere fact that the said order was served upon him on June 3, 1993, after his retirement (on May 31, 1993) could not render the proceedings bad in view of the relevant provisions of the relevant Rules, as they are. Clause (a) of the proviso to Rule 10 of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 (hereinafter referred to as Rules), which is, admittedly, applicable to the Petitioner, provides as follows:

Such departmental proceeding if instituted while the officer was in service, whether before his retirement or during his re-employment shall after the final retirement of the officer, be deemed to be a proceeding under this article and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service.

unmistakably making clear that Departmental proceedings, if instituted during the service of an employee, is to be deemed to be proceeding under the Rules and may be continued and completed even after his retirement. So also held by a Single Judge of this Court in the decision in Hirendra Kumar Nag v. Collector of Calcutta 1979 (2) C.H.N. 291 with which I am in complete agreement.

It would also seem significant and observable to note that Clause (b) of the proviso to Rule 10 of the Rules as well provides that such a departmental proceeding, if not instituted while an employee was in service, may be instituted with the sanction of Governor in respect of any event which took place within a period of four years before such institution, clearly indicating that departmental proceedings can be instituted and proceeded against employees even after retirement in appropriate case in terms of the aforesaid provision.

From the Annex. ''C to the writ petition. it would oddly appear that the Petitioner, while functioning as Assistant Public Prosecutor in the Court of Judicial Magistrate, Chinsura, Hooghly, during the year 1990, had allegedly cheated M/s. Navee Electronics and Electrical, a unit of M/s. Wachel Molla & Sons Pvt. Ltd., of 8, Lenin Sarani, Calcutta-13, on January 16, 1990, at abou1: 3 p.m. by falsely personating Sri I. K. Samaddar, Assistant Secretary to the West Bengal Legislative Assembly, and taking delivery of three colour T.V. sets valued at Rs. 36,000 only from the Manager of the said firm, Sri Satyen N. Chowdhury, on false pretext of receiving those T.V. sets for the Speaker and Ministers, by dishonestly inducing the said Manager to supply the said three T.V. sets worth Rs. 36,000 only against Cash Memo Nos. 2411 and 2412 dated January 16, 1990, and handing over to the said Manager a false cheque of Rs. 36,000 only drawn on U.C.O. Bank. Both the relevant Departmental proceedings and the relevant Criminal proceedings, undisputedly, have been instituted much within the period of four years from the date of the said alleged event, which had allegedly occurred on January 16, 1990. The Annex. ''C would further make clear that the Governor himself had proposed to hold the relevant Departmental enquiry against the Petitioner under Rule 10 of the West Bengal Services (Classification, Control and Appeal) Rules, 1971. On no reckoning, therefore, could any of the aforesaid criminal proceedings and the Departmental proceedings be held to be invalid as such.

It would also be pertinent to note from the aforesaid Annex. ''C that there are nine witnesses in the aforesaid relevant Departmental Proceedings, including responsible officers like Sri Lakshmi Kanta Pal, Secretary, Assembly House, and Sri Jayantalal Majumdar, Marshal, Assembly House, who had allegedly witnessed the alleged event. The offence alleged is indeed a grave one amounting to grave misconduct on the part of the Petitioner. The relevant criminal proceedings and the relevant Departmental proceedings instituted on the basis of the aforesaid allegations could hardly be quashed by the writ Court without allowing the Court and the Enquiring Authority concerned to deal with the same according to law and the Rules applicable thereto. The Court would also be chary to interfere with the aforesaid domestic enquiry, in the aforesaid facts and circumstances and in the nature of the allegations made in the matter. Upon the premises above, the Petitioner''s prayer for issue of writs, the way prayed for, could hardly be entertained.

It has been submitted on behalf of the Petitioner that his pension has been withheld by the State as a result of which he has been stranded with the members of his family. True it is in terms of Rule 10(1) of the aforesaid Rules the Governor reserves to himself the right of withholding of withdrawing a pension or any part of it whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in a departmental or judicial proceeding to have been guilty of grave misconduct or negligence, during the period of his service, including service rendered on re-employment after retirement.

Even so, the Petitioner''s plea cannot be lightly discarded. Even an employee under suspension, while in service, on being found guilty of misconduct in a Departmental proceeding or during the pendency of such proceeding, is entitled to subsistence allowance for his subsistence. There is little reason why an employee, after retirement, would, not be entitled to some pensionary benefit when a Departmental proceeding is pending against him so as to enable him to sustain. And, sub-Rules (2) and (3) of the aforesaid Rule 10 being, what they are. there could be no mistaking that the Petitioner would be entitled to be paid provisional pension thereunder from the date of his retirement till the aforesaid relevant proceedings are finally disposed of. So also conceded by Mr. Sarkar appearing for the opposite party State, in his usual frankness and wisdom. The Petitioner''s prayer for directing the opposite party State to pay him provisional pension cannot be discarded as such.

A question arose as to whether the aforesaid two proceedings should continue simultaneously or not. There is indeed no bar in proceeding with them simultaneously. But the criminal action and the Disciplinary proceedings in the instant case appear to be grounded upon the same set of facts. If the two proceedings are allowed to be proceeded with simultaneously the defence of the Petitioner-accused in the relevant criminal proceedings is likely to be disclosed before the trial which is likely to prejudice him. That apart, when the aforesaid two proceedings are grounded on the same set of facts, it is highly desirable that the Departmental proceedings should not be proceeded with when the other matter (on same set of facts) is sub judice before a competent Criminal Court. In that view of the matter it seems to me that the relevant departmental proceedings should remain stayed till the disposal of the relevant criminal case. My aforesaid view would also be fortified by the decision of the Supreme Court in the case Kusheshwar Dubey Vs. Bharat Coking Coal Ltd. and Others, .

In the result, the instant writ application should be disposed of in the manner indicated above. The Petitioner''s prayer for issue of writs, as prayed for, be rejected. The opposite party State shall pay provisional pension to the Petitioner commencing from "the date of his retirement till the conclusion of the aforesaid relevant proceedings. The Petitioner shall co-operate with the State in getting the relevant papers ready, if so required for the said purpose. The provisional pension should be paid by the State to the Petitioner in terms of this order, as early as possible, preferably within a period of two months from this date. The relevant Departmental proceedings shall remain stayed till the disposal of the aforesaid relevant criminal proceedings, which must be expedited. The learned Magistrate concerned shall seek to dispose of the same with utmost expedition, preferably within a period of six months from the date of communication of this order. The parties concerned shall co-operate with the Court in the matter of early conclusion of the trial. The learned Magistrate shall not allow adjournment to any of the parties on frivolous grounds seeking to delay the disposal of the case.

The instant writ application stands accordingly disposed of. No order for cost.

Parties to act on signed copies of the order.