- (1.) THE petitioner was a ?constable? attached to State Armed Police. While he was working under the Battalion at Barrackpore, he got friendly with one of his colleagues, Smt. Pampa Saha. In course of time the acquaintance became intimate.
(2.) THEY were regularly meeting, at least Sudipta Das one of their fellow colleagues deposed to that extent. THEY were meeting at the residential quarter of Sudipta. Palash established physical relationship with Pampa assuring to marry her. THEY spent night on December 20 and 21, 2005 at the said residential quarter of Sudipta. Subsequently, Palash backed out from his promise and married another girl on February 07, 2006. Pampa lodged a complaint with the Commandant. She prayed for justice. The Commandant got the said complaint registered with the local Police Station and a criminal case was initiated under Section 376 of the Indian Penal Code against Palash. Subsequently, Pampa did not want to pursue her complaint and filed a declaration in the form of affidavit before the learned Magistrate. As per the declaration, Pampa wanted to withdraw her complaint. Accordingly the learned magistrate discharged Palash from the criminal case. The Authority was, however, serious on the issue. THEY issued a charge sheet dated May 10, 2006 and proceeded against Palash departmentally. Pampa adduced evidence to support the prosecution case as prosecution witness No. 1. Sudipta corroborated the case made out by Pampa as prosecution witness No. 3. The Enquiry Officer found the charges to have been proved as against Palash. The Authority ultimately dismissed him from service. Palash did not prefer any statutory appeal, instead approached the Tribunal as against the order of dismissal. The Tribunal, however, entertained his application and decided on merit. The Tribunal ultimately dismissed his application by holding, since the criminal Court did not record any observation on merit, the finding of the Enquiry Officer could not be disturbed. Being aggrieved, Palash has approached us by filing the instant application. Mr. Amal Baran Chatterjee, learned Counsel appearing for the petitioner contends as follows :- i) Once the Criminal Court discharged Palash from the charges brought against him under Section 376 and observed that the said charge would ultimately fail, in absence of appropriate materials, the Disciplinary Authority should have given due credence to the decision of the learned Magistrate and should not have initiated the departmental proceeding as against him. ii) From the evidence it would appear that at best the prosecution could make out a case of intimacy followed by promise, which was not kept. Such allegation could not be termed and/or included with the scope of "moral turpitude" deserving capital punishment of dismissal from service. iii) The alleged victim filed a declaration before the learned Magistrate to the effect that she was not willing to pursue the complaint hence, her evidence before the Enquiry Officer should have been given credence cautiously. iv) Assuming Palash was responsible for the alleged misconduct, such misconduct, if held to be proved, could not attract punishment of dismissal from service. Elaborating his argument, Mr. Chatterjee contends that the couple might have intimacy, which might have resulted a promise from Palash to marry Pampa, which he did not honour. Such fact, even if taken as sacrosanct, could not be termed as misconduct at the arena of administrative jurisprudence. In the alternative, Mr. Chatterjee contends that Palash should be imposed lighter punishment taking a lenient view particularly when the alleged victim observed that in the changed circumstances she did not want to pursue her complaint. Opposing the application Ms. Chaitali Bhattacharjee, learned Counsel appearing for the State contends as follows :- i) The application was inordinately delayed. The Tribunal dismissed the application vide judgment and order dated March 03, 2009, whereas the petitioner filed this application before this Court on June 28, 2011. No explanation is forthcoming on that score. ii) Once the Disciplinary Authority passed the order of dismissal from service the petitioner was not entitled to approach the tribunal directly without exhausting his remedy in law by preferring statutory appeal before the Appellate Authority. iii) The petitioner was discharged on technical ground by the Tribunal. He was not entitled to the benefit of the said acquittal in a departmental enquiry. iv) The victim should have a choice of her. She, in her wisdom, did not pursue her complaint before the Criminal Court, however, supported prosecution story in the departmental enquiry, which is permissible in law.
(3.) ELABORATING her argument Ms. Bhattacharjee relies upon the following decisions :- i) Manager, Reserve Bank of India, Bangalore Vs. S. Mani, reported in (2005) 5 SCC 100. ii) Southern Railway Officers Association Vs. Union of India & Ors., reported in (2009) 9 SCC 24. iii) S. Govinda Menon & Anr. Vs. Union of India & Ors., reported in AIR 1967 SC 1274. While giving reply Mr. Chatterjee contends that the learned Magistrate declined to frame charge as he was not satisfied with the materials on record, even to frame charge under Section 376 of the Indian Penal Code hence, there was no reason for the Enquiry Officer to hold it otherwise.;