S.N.Bhattacharjee, J. - (1.) In the instant writ application under Artticle 226 of the Constitution of India, the order and judgment dated 9.7.97 passed in O.A. No. 617 of 1996 by the State Administrative Tribunal dismissing the application of the petitioner has been challenged.
(2.) The petitioner, a Constable of Special Branch of Calcutta Police was booked for security guard duty of Dr. Sudipta Roy, MLA with another constable Nishakar Panda. According to the petitioner, on 20.1.90 there was an altercation between them over morning shift duties. It degenerated into a scuffle between the two and Nishakar who had revolver with him received shot injuries on his person as the bullet went off the revolver in the melie and the petitioner took up revolver from the ground where it dropped and absconded. A criminal case was started against him for committing offence under section 307 IPC which ended in the discharge of the petitioner under section 167(5) Cr.PC as the IO failed to submit charge-sheet within statutory period. The departmental proceeding which was initiated simultaneously was also dropped. A fresh departmental proceedings was initiated against the petitioner being proceeding No. 99 dated 14.11.94 by Dy. Commissioner of Police, Special Branch, Calcutta. That proceeding ended in a finding of guilt of the charges framed against the petitioner and second show cause notice was issued. The petitioner replied to the show cause notice but at the same time filed application before the Tribunal challenging the second show cause notice dated 24.7.91 (annexure K to the petition), inter alia, on the following grounds: I. That after the order of discharge being passed by the courts in the criminal case, the first departmental proceeding case No. 69 dated 5.7.93 against the petitioner was dropped and thereafter on the same question the second departmental proceeding case No. 99 dated 14.11.94 initiated against the petitioner and service of second show cause notice are bad in law; para xxxii, page 35-36 of P.B.) II.That charges based on the same incident have been altered in the second departmental proceeding and same of the witnesses of the first departmental proceeding have been omitted in the subsequent proceedings (xxxiv, page 37-38 of P.B.) III.That statements of Kalpana Das recorded under section 161 Cr. PC during investigation of the criminal case was wrongly relied upon by the Enquiry Officer without serving a copy of the statement upon the petitioner and without examining her during enquiry; IV.That the report of the Enquiry Officer is in violation of the mandatory provision of Police Regulation Act as he had not discussed evidence of each of the charges and had travelled beyond the allegations under the charge. The learned Tribunal dismissed the petition holding, inter alia, i. The departmental proceeding on the self-same facts are maintainable although the criminal case resulted in a discharge, or even acquittal. ii. Despite some discrepancy about the fact as to how the revolver changed hands fron the possession of Nishakar Panda to that of the applicant, the broad fact remains that the applicant opened the fire from the said revolver aimed at Nishakar Panda causing serious injuries to the victim and there is ample material in the file of the departmental proceeding to support such a finding. iii. The evidence of Kalpana Das recorded in the criminal case during investigation under 161 Cr. PC was wrongly relied upon by the Enquiry Officer although she was not examined in the proceedings. Reception of illegal evidence does not vitiate the whole enquiry process and if the findings, devoid of such evidence, can be sustained, the applicant cannot have any cause for grievance. iv. The Tribunal will not interfere as an appellate authority over the departmental authority and if there is some evidence in support of the charges this Tribunal cannot interfere. v. As no final order has been passed as yet in the departmental proceedings the petition is premature and the applicant should have waited till the final order is passed. On such findings the learned Tribunal dismissed the petition.
(3.) It has been argued by the learned counsel appearing for the petitioner that the Enquiry Officer in his report did not discuss seperately each charge nor did he arrive at a finding on each charge as required under rule 9(5)(a)(b) of Police Regulation Act, Calcutta and as such the report is bad in law. The Enquiry Officer relied upon the evidence of Kalpana Das recorded under section 161 Cr. PC although she was not produced before the Enquiry Officer for recording her evidence and for cross-examination by the petitioner. The copy of her statement under section 161 Cr.PC has also not been supplied to the petitioner. It has been further argued that the Disciplinary Authority out of bias did not arrive at a conclusion as to which of the charges have been proved against the petitioner although he wanted to dismiss the petitioner. Lastly, he has argued that the learned Tribunal failed to appreciate the above points and the Judgment/Order under challenge is liable to be set aside.;