Pratap Kumar Ray, J. - (1.) HEARD the learned Advocates appearing for the parties.
(2.) ASSAILING the order dated 4th May, 2007 passed in O.A. No. 1613 of 2001 by the West Bengal Administrative Tribunal, this writ application has been filed. The impugned order reads such: "4.5.2007 -This is an application under section 19 of the Administrative Tribunals Act, 1985, filed at the instance of Md. Khairul Alam, petitioner herein, paying for a declaration that the enquiry initiated against the applicant through Proceeding No. 17 dated 06.12.1999 should not be given any effect or further effect with further prayer praying for not to interfere with the service of the present applicant. Subsequently, after taking leave of this Tribunal, the petitioner has filed one supplementary application challenging the final order passed in the aforesaid departmental proceeding praying for quashing the same. The short facts leading to the filing of this application are as follows: The petitioner is an employee of the West Bengal Police having No.C/3657, now posted at Calcutta Airport, and he was discharging his duties and responsibilities quite efficiently to the satisfaction of his superiors. It has been alleged by the petitioner that he was falsely implicated in a case being Bharatpur Police Case No.2(6) 88 under section 148/149/326/ 506 of IPC, but the said case has been amicably settled before the Court of the Learned Sub/Divisional Judicial Magistrate, Kandi on 02.08.1988. But after lapse of almost 11 years, one departmental proceeding was initiated on the basis of the aforesaid Article of charges, which by then became stale, and in the aforesaid proceeding, proper procedure was not followed, and the Enquiring Officer compelled the application to put his signature on the papers, wherein purported two declarations were obtained from him one was to the effect that the applicant was unwilling to produce defence witness, and secondly applicant was unwilling to submit written statement of defence. And subsequently, relying on those declarations, enquiry proceeding was concluded, and the finding were made against the petitioner, when it is quite well settled position that on the self-same cause of action, departmental proceeding and the criminal proceeding cannot go side by side, and thereafter in utter violation of the procedural norms, provisional order as also the final order have been passed. It has further been alleged on behalf of the petitioner that the punishment, as inflicted in the present case, was passed in violation of Rule 856 of PRB, and the punishment is absolutely disproportionate, and as such, it should be interfered with. Hence, this prayer. This application, however, has been resisted on behalf of the State Respondents by filing reply, denying all the material contentions raised by the petitioner in his application. It has, inter alia, been contended on their behalf that when the petitioner was posted at D.A.P., North 24 Parganas, he went to his native village and got himself involved in Bharatpur P.S. Case No. 02 dated 20.06.1988 under sections 148/149/326/506, and he was forwarded to Kandi Court on 21.06.1988, and he was released on bail. Again on 15.11.1994, he was involved in Bharatpur P.S. Case No.78 dated 15.11.1994 under sections 147/148/149/323/324/427/307 of IPC and % of ES Act. In connection with the aforesaid case, he was arrested and forwarded to Kandi Court on 21.11.1994, and the above case, he was remanded to jail custody till 26.1.1994. On the basis of the aforesaid allegations, Proceeding No. 17 was initiated against him, wherein, Bangshi Badan Mondal, CLA of North 24 Parganas was appointed as Enquiry Officer, and the concerned Enquiry Officer, maintaining all formalities, concluded the proceeding of the enquiry and submitted findings to the Respondent Authority stating that the charge against the petitioner has been proved, and the petitioner was given all possible opportunities to defend his case. It was further contended on their behalf that the departmental proceeding and the criminal proceeding being separate and scope being different, and there being no specific clear-cut guideline or rule, such departmental proceeding may continue, even if criminal case is pending. So, It was contended on behalf of the Respondents that there was no illegality or irregularity in the aforesaid departmental proceeding, and as such, no interference need be made in the connected matter. Consequently, they pray for dismissal of this case. Now, the only question which we are called upon to decide here is as to whether the petitioner is entitled to the reliefs as prayed for or not. We have heard the learned counsels appearing for the parties in length. We have also perused the available materials on record with meticulous care. In the instance case, the petitioner before us has come up challenging the departmental proceeding initiated against him, and also by challenging the provisional order and final order passed in the aforesaid proceeding, alleging mainly that charges against the petitioner, brought in the departmental proceeding, were in relation to the incident which had taken place in the year 1988 and 1994, but the proceeding was initiated by serving Article of charges during the year 1999, and by that time, the charges had already become stale, and as such, no proceeding could be proceeded with such stale charges. It is true that in a proceeding, where charges have become stale, it would be unfair to permit the departmental enquiry to be proceeded with such Article of charges, but here in this case, the situation is something different, because from the materials available before us, it is revealed that first criminal case, in which petitioner was involved, was initiated on 20.06.1988, and the second incident of criminal case took place on 15.11.1994. In fact his department was aware of both the cases but certainly they took time for initiating the aforesaid proceeding. Now, the question would be - whether for initiation of such proceedings during the year 1999, it would be regarded that the changes against the petitioner for his involvement in the criminal cases, have become stale or not. In this connection, it may be indicated that it is our general knowledge and common expedience that normally disposal of criminal cases take long years in our country. There is also divergence of opinion as to the issue - whether or not the criminal case and the departmental proceedings could go on simultaneously or not. In a situation like this, if the concerned authority waited for some years for initiation of the departmental proceeding against the present petitioner for his involvement in the criminal case, in our view, it cannot be accepted that charges of this nature have become stale. So, we find no force in the contention of the present petitioner, and consequently, we do not find any reason for our interference on this ground. Second objection that has been taken on behalf of the petitioner against the final order and provisional order is to the effect that no reason has been given in the final order as also in the provisional final order. But looking into the provisional order as also the final order passed in the connected matter, we find that it is quite true that no elaborate discussion has been made by the concerned authority in passing the provisional order as also the final order, yet, in due consideration of the material available on record, and for not filing written statement and for not examining defence witnesses by the petitioner during enquiry proceeding, the aforesaid findings were made. It is also quite settled position of law that tribunal cannot sit as a court of appeal over a decision on the basis of the findings of the Enquiring Authority in the disciplinary proceeding, and where there is some relevant materials, which the Disciplinary Authority has accepted, and which material reasonably support the conclusion reached by the Disciplinary Authority, it is not the function of the Administrative Tribunal to review the same and reach different findings than that that of the Disciplinary Authority. Examining the materials available on record, on the basis of the aforesaid board settled principes, we find no infirmities in the provisional final order as also the final order. So on these count also, we find no merit in the claim of the petitioner. Furthermore, it is quite settled position of law that in judicial review, Courts or tribunal are mainly concerned with the infirmities/illegalities in the decision-making process and not to the decision itself. But here in this instant case, nothing of that kind could be urged before us with regard to the illegalities/ infirmities in the decision making process. Rather, scrutiny of the materials on record reveals that all reasonable opportunities were given to the present petitioner in the departmental proceeding, and it is he who himself has chosen not to file written statement and to examine defence witnesses. Consequently, we find no reason for our interference with the disciplinary proceeding and the findings made therein. Last but not the least is the objection that has been taken in the instant case is that the punishment that has been inflicted against the petitioner is disproportionate to the gravity of misconduct, and as such, it is violative of Article 14. It is quite settled position of law that penalty imposed must be commensurate with the gravity of misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article-14 of the Constitution. It is also quite settled position of law that relation of punishment or quantum of punishment to be imposed is a matter purely within the domain of the Disciplinary Authority, and the scope of interference by way of judicial review is very limited. But that does not mean that in appropriate case, Court or tribunal cannot interfere with such punishment inflicted on a person. In a case where the punishment is strikingly disproportionate and not in commensurate with the proven guilt, the Court or tribunal may interfere, and it cannot allowed to remain uncorrected in judicial review. So, having examined the materials record, in the background of the aforesaid settled position of law, we are not in a position to accept at the punishment imposed upon the present petitioner was strikingly disproportionate and no in commensurate with the proven guilt, as it has been held by the authority that the charges being serious in nature, his continuance in service would be highly prejudicial in the interest of public service. Consequently, we hold that on this ground also, there is no scope or reason for interference by us in the connected matter. So, having examined the entire materials available on record, we find that in the instant case, there is no scope for interference by us. We therefore find no merit in the instant application, and as such, the same is dismissed on contest but without any cost in the circumstances of the case." On a bare reading of the impugned order, it appears that learned Tribunal below did not commit any illegality for which the Writ Court should interfere. From the impugned order, it appears that a departmental proceeding was initiated against a police officer for his involvement in two criminal cases one Bharatpur P.S. Case No.2 dated 20th June, 1988 under sections 148/149/326/506 of IPC and other case being Bharatpur P.S. Case No.78 dated 15th November, 1994 under sections 147/148/149/323/324/ 427/307 of IPC read with section % of ES Act. The said Bharatpur P.S. Case No.2 was compromised and writ petitioner was acquitted. So far as the subsequent criminal case being Bharatpur P.S. Case No. 78 dated 15th November, 1994, the same was culminated to a criminal trial being T.R. No. 725 of 2002 and on 21st January, 2011 learned Judicial Magistrate at Kandi, District-Murshidabad acquitted the writ petitioner and released him from bail bond on the finding that prosecution failed to prove the case beyond all reasonable doubts. The relevant portion of the finding of learned Judicial Magistrate reads such: "In view of the above facts, I am of the opinion that there is no materials on record regarding the involvement of the case persons in the alleged offence and the prosecution has failed to prove its case beyond all doubts and in the result the prosecution case fails and it is: ORDERED That the accused persons are found not guilty to the charge under sections 148/323/324/427/34 IPC and acquitted under section 248(1) Cr PC. They are released from their respective bail bonds and set to liberty at once. Seized articles as per charge-sheet be destroyed as per section 452 Cr PC."
(3.) A departmental charge memo No. 17 dated 6th February, 1999 was issued initiating a disciplinary proceeding by Superintendent of Police, North 24-Parganas which reads such: CHARGE "You C/3657 Khairul Alam of D.I.B. North 24-Parganas are hereby charged with misconduct, involvement in Bharatpur P.S. dist. Murshidabad case No.2(6)88 and case No.78(11)94 and unbecoming the member of police force in that: 1) On 20.6.88 while you were posted at D.A.P. North 24-Parganas you went to your native village and involved in Bharatpur P.S. case No.2 dt. 20.6.88 under sections 148/149/326/504 IPC. You were arrested in c/ w that case and forwarded to Kandi Court dist. Murshidabad on 21.6.88 and released on bail. 2) Again on 15.11.94 you were involved in Bharatpur P.S. dist. Murshidabad case No. 78/94 dt. 15.11.94 under sections 147/148/149/ 323/324/427/307 IPC and 3/4 E.S. Act. You were arrested in c/w that case and forwarded to Kandi Court on 21.11.94. You were remanded to J/C till 26.11.94. You are hereby directed to state in writing within 7 days from the date of receipt of the charge as to whether you plead guilty to the charge in full or part thereof or want an open enquiry. The statement of allegation on the basis of which the charge has been framed is annexed herewith". Statement of allegation of said departmental proceeding reads such: "Statement of allegation On 20.6.88 while the Constable-3657 Khairul Alam was posted at DAP North 24-Parganas he went to his village an involved in Bharatpur P.S. Case No. 2 dt. 20.6.88 under sections 148/149/323/504 IPC. He was arrested in c/w that case and forwarded to Kandi Court, district Murshidabad on 21.6.88 and released on bail. 2. On 15.1.94 the Constable was involved again in Bharatpur P.S. dist. Murshidabad case No. 78/94 dt. 15.11.94 under sections 147/148/149/ 323/324/427/307 IPC and 3/4 E.S. Act. He was arrested in c/w that case and forwarded to Kandi Court on 21.11.94. He was remanded to J/ C till 26.11.94. P.W.s to be examined 1. SI R.P. Maitra, O/C Bharatpur PS dist. Murshidabad on 20.6.88. 2. SI Kamal Krishna Das of Bharatpur PS dist. MSD. on 4.7.88. 3. Kamruddin Sk., S/4 Rahim Sk. Vill : Jhikira, PS: Bharatpur, dist. Murshidabad. 4. SI M. Haque of Bharatpur P.S. dist Murshidabad on 15.11.94. 5. Nidhiram Hazra, S/o. Bhakti Bhusan Hazra, Vill: Jhikira, PS: Bharatpur, dist. Murshidabad. And any other witnesses if required during enquiry. List of documents. 1. RTM dt. 21.6.88 of O/C Bharatpur PS dist. MSD. 2. FIR of Bharatpur PS case No. 2(6)88. 3. Report of SI K.K. Das of Bharatpur PS dt. 4.7.88 4. Report of SI M. Haque O/C Bharatpur PS dt. 25.2.97. 5. FIR of Bharatpur PS case No.78(l 1)94. And any other documents if required during enquiry." ;