Dipankar Datta, J. - (1.) The petitioner was a Sub-Inspector of the Central Reserve Police Force. An order compulsorily retiring the petitioner from service, following disciplinary proceedings initiated against him, is challenged in this writ petition.
(2.) The pleaded case reveals a chequered history. A preliminary enquiry was conducted which prima facie revealed the involvement of the petitioner in acts of commission/omission amounting to misconduct. A formal charge-sheet was issued vide memorandum dated May 21, 2007 by the Deputy Inspector General of Police, CRPF, Durgapur, respondent No. 4 (hereafter the disciplinary authority), containing five articles of charge. The articles of charge read as follows: Statement Of Articles Of Charges Framed Against No 911580146 SI(M) Maninder Kumar Of Office Of DIGP CRPF Durgapur (W/b) Article - I That the said No 911580146 SI(M) Maninder Kumar of office of DIGP CRPF Durgapur (W/B). While functioning as SI (Ministerial) and holding the charge of Establishment-II, attachment/temporary transfer etc) has committed a serious misconduct in his capacity as a member of the Force under section 11(1) of CRPF Act, 1949, in that he under a pre planned and well hatched conspiracy, told No 851311713 CT (Dfty) Khagendra Barik of the same office to arrange and prepare some candidates of written examination of CT(GD) dated 11/4/07, by taking money ad he could be in the know-how of the questions being recruitment clerk. This act of his amounts to breach of trust and misuse of official position, which is unbecoming of a Govt servant. Article - II That the said No 911580146 SI(M) Maninder Kumar of Office of DIGP CRPF Durgapur (W/B) while functioning as SI(Ministerial) and holding the charge of Establishment-II, attachment/temporary transfer etc) has committed a serious misconduct in his capacity as a member of the Force under section 11(1) of CRPF Act, 1949, in that even though he came to know certain questions of written examination for recruitment of CT(GD) scheduled to be held on 11/4/07, from No 901310057 Peom Amulya Ratan Roy of GC CRPF Durgapur but he concealed the same from his immediate superiors with ulterior motive. This act of his amounts to violation of oath of secrecy taken by him at the time of entry into Govt service and his this act is prejudicial to good order and discipline of the Force. Article - III That the said No. 911580146 SI(M) Maninder Kumar of Office of DIGP, CRPF, Durgapur (WB) while functioning as SI(Ministerial) and holding the charge of Establishment-II, (dealing with the subjects of recruitment, transfer, attachment/temporary transfer etc.) has committed a serious misconduct in his capacity as a member of the Force under section 11(1) of CRPF Act, 1949, in that he failed to maintain absolute secrecy of secret official documents due to which photocopy of an important secret message bearing No. T. IX- 48/07/ES/Estt-I dated 21/3/07, which was supposed to be under the safe custody of said No. 911580146 SI(M) Maninder Kumar, was found to be in possession of No. 851311713 CT (Dfty) Khagendra Barik of the same office. This act of his is prejudicial to good order and discipline of the Force. Article - IV That the said No. 911580146 SI(M) Maninder Kumar, of office of DIGP, CRPF, Durgapur (WB) while functioning as SI(Ministerial) and holding the charge of Establishment-II, (dealing with the subjects of recruitment, transfer, attachment/temporary transfer etc.) has committed a serious misconduct in his capacity as a member of the Force under section 11(1) of CRPF Act, 1949, in that while processing the transfer case of executive personnel in bulk for filling up vacancies of GC, CRPF, Siliguri during 2005, did not observe or mention the criteria, based on which out of 60 names nominated by Durgapur Range Units, he proposed names of 40 personnel at his own including three ineligible personnel for posting to GC CRPF Siliguri violating the laid down norms and thus acted in a manner unbecoming of Govt servant. Article -V That the said No. 911580146 SI(M) Maninder Kumar, of office of DIGP, CRPF, Durgapur (WB) while functioning as SI(Ministerial) and holding the charge of Establishment-II, (dealing with the subjects of recruitment, transfer, attachment/temporary transfer etc.) has committed a serious misconduct in his capacity as a member of the Force under section 11(1) of CRPF Act, 1949, in that one civilian candidate namely Shri Prosun Roy of village-Sreepur, PO: Mahdyamgram, Kolkata-130 has preferred a written complaint to the IGP E/S, CRPF alleging that through he had cleared the review medical test held on 24/1/05 at Base Hospital-I, CRPF, New Delhi, his case for appointment to the post of HC(M) in CRPF was not considered. He also alleged that one person approached him and advised to contact the Mobile phone No. 9810265907 and accordingly he contacted and that person demanded Rs. 1.5 lakhs as bribe for appointment. In the said complaint the complainant has categorically stated that said SI(M) Maninder Kumar and his wife Sukla Ghosh were very well aware about this fact. Despite that said SI(M) Maninder Kumar though responsible for all recruitment matters at Range level being Recruitment clerk, did not reveal this fact to his immediate superior authority till he was asked by the department, which is unbecoming of a Govt servant.
(3.) An enquiry followed where 13 (thirteen) prosecution witnesses were examined and 8 (eight) documents exhibited. After conducting a full-fledged enquiry, the enquiry officer submitted a report dated February 25, 2009 holding that none of the charges levelled against the petitioner had been established. The report of enquiry was placed before the disciplinary authority who went on to record his disagreement with the findings of the enquiry officer by a note dated May 20, 2009. The report of enquiry together with the disagreement note was forwarded to the petitioner by a letter dated May 27, 2009 seeking his representation or submission, if any, in writing within fifteen days of receipt thereof. A representation dated June 5, 2009 followed at the instance of the petitioner. While consideration of the representation was pending, the petitioner invoked the writ jurisdiction of this Court for the first time by presenting W.P. No. 9786(W) of 2009. He had challenged the letter dated May 27, 2009 in such writ petition. The writ petition was taken up for consideration by a coordinate Bench on June 22, 2009, when it was submitted on behalf of the petitioner that the disciplinary authority in its disagreement note had virtually arrived at a final conclusion regarding the guilt of the petitioner and that the opportunity extended to submit a representation was a mere formality. Upon hearing the parties, this is what the coordinate Bench held: After careful consideration of all the relevant facts and circumstances, this court is of the view that the manner in which the disciplinary authority has proceeded cannot be appreciated. It is not for the said authority to conclude regarding any charges against the writ petitioner while giving him an opportunity to submit a representation. True, while disagreeing with the findings of the enquiry authority, it is for the disciplinary authority to come to certain tentative findings and such findings are required to be communicated to the concerned person so as to give him a chance to respond thereto. Mr. Chatterjee quite rightly mentions that the sprit of the said report of the disciplinary authority rather suggests that the guilt had already been established. After careful consideration of all relevant aspects, this court disposes of the writ application with the following directions:- The disciplinary authority is hereby directed not to act upon such conclusion regarding the guilt of the writ petitioner as reflected from its report, copy of which was communicated to the writ petitioner. The findings of the disciplinary authority in the said report be also deemed to be tentative and the disciplinary authority must proceed with the matter with their open mind - certainly without being guided by the observations already made. The writ petitioner is hereby directed to submit a representation to the said report and of course, in the light of the observations made hereinbefore. If such a representation is filed within a period of four weeks from this date, the disciplinary authority must consider the same in its proper perspective and take appropriate action/pass necessary order in respect thereof. This must be done within a period of six weeks from the date of receipt of the said representation. There will, however, be no order as to costs.;