BARUN KUMAR MALLA Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 11th November, 2009 passed by the learned single Judge dismissing the writ petition filed by the appellant/writ petitioner for seeking a mandamus to quash and set aside the departmental inquiry initiated against the appellant writ petitioner (memorandum of charges dated 15th October, 2007).

(2.) The appellant/writ petitioner is working as an inspector in Central Industrial Security Force (CISF for short). While the petitioner was working in the MAMC unit at Durgapur as a sub-Inspector in-charge of crime and intelligence wings, a complaint came to be filed against the petitioner in respect of an incident which occurred on May 5, 2000 at about 8:30 P.M. by one Smt. Manju Das, wife of Sri Fatik Das, Ganatantra Colony, P.S. NTSPS, Durgapur before the learned SDJM, Durgapur which came to be registered as M.P. Case No. 99 of 2000 for having committed offence punishable under Section 342/504/354/376/511 Indian Penal Code on the allegations that on 5.5. 2000 at about 6:30 P.M. when the complainant was returning back by performing her daily work from the quarter of B.S. Das, the appellant/writ petitioner along with three others confined her in front of the quarter of B.S. Das and started abusing filthy languages towards her by saying " SALIKO AKDIN UTHAKA LAY JYANGA" and hearing the same the complainant became agitated and restrained herself but protested, the appellant/writ petitioner caught hold of her hairs while the other accused pulled over the sari of the complainant and pressed her breasts. It appears that the learned Magistrate referred the case for investigation to NTPS Police Station. The police officer registered the said complaint as First Information Report and registered FIR No. 48 of 2000 dated 31.05.2000 against the appellant/writ petitioner and others named in the complaint by treating the original court complaint as FIR. It appears that the police officer in-charge of NTPS Police Station informed by a letter to the CISF in respect of the complaint filed by Smt. Manju Das against the appellant/writ petitioner and others with a request to produce the officers named in the complaint as accused at the police station at NTPS for the purpose of investigation.

(3.) On the basis of the aforesaid complaint case filed by Smt. Manju Das, a preliminary inquiry was conducted after issuing memorandum of charges dated 15th October, 2007 against the appellant/petitioner The appellant/writ petitioner in his reply to the memorandum contended that the said memo of charge is issued after a lapse of 8 years from the date of alleged incident and, therefore, it is not maintainable and liable to be quashed and set aside due to inordinate delay. It has also contended that the allegation contained in the FIR was known to the authorities immediately. In spite of knowledge of the allegations the authorities did not take any action for the last 8 years and, therefore, the alleged misconduct is deemed to have been condoned. The appellant/writ petitioner also took a stand that on the selfsame cause of action a criminal proceeding is pending and that he will be greatly prejudiced, and if he is called upon to disclose his defence in the departmental proceedings his defence in the criminal proceedings will be disclosed to his prejudice and requested for departmental proceeding to be kept in abeyance till finalization of the criminal proceedings and sought for relevant documents. It appears that the disciplinary authority was not satisfied with the reply given by the appellant/petitioner to the show cause notice and appointed an officer in the rank of Deputy Commandant as Inquiry Officer for initiating departmental inquiry into the charges framed against the appellant/writ petitioner. Aggrieved by this said decision, the appellant/writ petitioner moved the Hon'ble High Court by filing Writ Petition No. 26249(W) of 2007 for quashing and setting aside the departmental proceedings/inquiry pursuant to the memorandum of charges dated 15th October, 2007 on the ground that the alleged incident is related to year 2000 and, therefore, the issue of memorandum of charges in the year 2007 is extremely belated and liable to be set aside on the ground of delay and that at the relevant point of time the authorities were satisfied that the appellant was innocent and that the departmental case is grounded on the selfsame facts and selfsame witnesses and, therefore, the disclosure of defence by the petitioner at the departmental proceedings would cause irreparable loss and injury in the criminal proceedings. The appellant/writ petitioner also took stand that the Deputy Commandant after thorough investigation into the allegations arrived at a finding that the writ petitioner is innocent and, accordingly, has written a letter to the police officer and in such view of the matter the issue of the impugned memorandum of charges is mala fide. He also raised the contention that the petitioner was promoted as Inspector subsequent to the alleged incident which was reported by filing a criminal complaint case which amounts to condonation of the act of alleged misconduct by the disciplinary authority and raised other ancillary grounds.