State Of West Bengal & Ors vs Sankar Ghosh

3. The respondent was working as a Sepoy in the 2nd Battalion of the Kolkata Armed Police. At the time of the incident, he was working as a Sepoy on deputation in the Traffic Department of Kolkata Police. He was arrested by the police in connection with Khardah P.S. Case No.383 dated 12.11.2013 and charged for the offences under Sections 392, 395 and 412 of the Indian Penal Code read with Sections 25 and 27 of the Arms Act for his complicity in the commission of a dacoity using a motor cycle bearing Registration No.WB-24/F-3050. On his arrest, he was produced before the Sub-Divisional Magistrate, Barrackpore, and he was remanded to police custody till 28.11.2003 and then to judicial custody till 30.3.2004. Later, he was released on 1.4.2004. The department placed the respondent under suspension w.e.f. 26.11.2003 and was later served with a charge sheet on 1.6.2004. The operative portion of the charge sheet reads as follows :-

3) It appears from the record that you have no stay out permission from the competent authority and you were involved in the criminal case in the jurisdiction of Khardah P.S. and also arrested from outside the Kolkata Police jurisdiction.

You are hereby directed to state whether you plead guilty to the charges or want an open enquiry into the matter. Your written reply should reach within 7 (seven) days of the receipt of this charge.

4. The respondent replied to the charge sheet and a detailed enquiry was conducted by the Enquiry Officer. On conclusion of the enquiry, the Enquiry Officer after perusing the materials on record and after hearing the parties drew up his report on the enquiry on 10.11.2004. The Enquiry Officer found the respondent guilty of the charges levelled against him. The Disciplinary Authority, after considering the Enquiry Report as well as after hearing the respondent, concurred with the views expressed by the Enquiry Officer and ultimately decided to impose the penalty of dismissal from service. The respondent was, therefore, served with the notice to show cause as to why he should not be dismissed from service. A detailed reply was submitted by the respondent. After considering the reply, the Disciplinary Authority dismissed the respondent from the Police Force w.e.f. 27.12.2004. The respondent then filed an appeal before the Appellate Authority.

5. The Appellate Authority gave a personal hearing to the respondent on 28.2.2005. The Appellate Authority after having noticed that the order of dismissal was not passed by the appropriate authority, set aside the order and left it to the appropriate authority to pass appropriate orders based on the Enquiry Report. The Deputy Commission of Police, 2nd Battalion, Kolkata Armed Police, who is the competent authority, after considering the entire matter passed a final order dismissing the respondent from service w.e.f. 2.6.2005. Against the said order, the respondent filed an appeal before the Appellate Authority i.e. the Joint Commissioner of Police (A.P.), Kolkata Police. The Appellate Authority after considering the entire matter, rejected the appeal vide its order dated 25.8.2005.

6. The Additional Sessions Judge, Barrackpore, who was trying the criminal case levelled against the respondent and five other accused persons for committing the offence under 395/412 IPC read with Section 25(1)(a)/27/35 of the Arms Act, in the meanwhile found that the charges levelled against the accused persons including the respondent were not found proved and consequently vide judgment dated 7.12.2007 acquitted all the accused persons. The respondent on his acquittal in the criminal case filed O.A. No.3961 of 2008 before the West Bengal Administrative Tribunal. The Tribunal after perusing the judgment of the Sessions Court acquitting the respondent and others took the view that the said judgment should have a bearing on the decision of the Enquiry Officer regarding disciplinary proceedings. Holding so, the appeal was disposed of with a direction to the Disciplinary Authority to reinstate the respondent in view of the acquittal order passed by the Sessions Court in the criminal case.

7. Aggrieved by the said order, the State of West Bengal along with two others, filed W.P.S.T. No.570 of 2009 before the Calcutta High Court. The High Court dismissed the appeal upholding the order of the Tribunal, against which this appeal has been preferred.

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. We, therefore, allow the appeal and set aside the order of the Tribunal, which was affirmed by the High Court. However, there will be no order as to costs.