Basudev Dutta v. The State of West Bengal & Ors.

From the Judgment and Order dated 16.08.2023 of the High Court at Calcutta in WPST No. 106 of 2013 Appearances for Parties Raj Kumar Gupta, Mayank Agrahari, Shekhar Kumar, Advs. for the Appellant. Biswajit Deb, Sr. Adv., Anando Mukherjee, Shwetank Singh, Advs. for the Respondents. Judgment / Order of the Supreme Court Judgment R. Mahadevan, J. Leave granted.

Assailing the final judgment and order dated 16.08.2023 passed by the High Court of Calcutta1 in W.P.S.T. No. 106 of 2013, the appellant has come up with this appeal. Vide the said order, the High Court set aside the order dated 28.08.2012 passed by the West Bengal State Administrative Tribunal at Calcutta2 in O.A.No.331 of 2011,3 in which, the order of termination passed against the appellant herein 1 2 3 Hereinafter shortly referred to as “the High Court” Hereinafter shortly referred to as “the Tribunal” Basudev Dutta v. The State of West Bengal and Others Basudev Dutta v. The State of West Bengal & Ors. 422 [2024] 12 S.C.R. was set aside, however, the authority concerned was granted liberty to proceed against the appellant in accordance with law, following the principles of natural justice.

According to the appellant, when he was aged about 16 years, he along with his father by name Hariananda Dutta, came to India from East Pakistan (now Bangladesh) and his father was issued with a Migration Certificate being No.D/65/69 dated 19.05.1969 by the authority concerned. Subsequently, the appellant joined Bangabasi College, Calcutta and passed the Pre-University Examination in Science in May, 1971 under the University of Calcutta. Thereafter, he got admission in Regional Institute of Ophthalmology, Calcutta and successfully completed Ophthalmic Assistant Course in 1984. Later, he participated in the selection process and was appointed as Para Medical Ophthalmic Assistant by the Director of Health Services, Government of West Bengal, vide order dated 21.02.1985 and in terms of the said appointment order, the appellant joined at Kadambini Block Primary Health Centre, Monteswar, Burdwan on 06.03.1985. The Department received satisfactory report of the medical examination and Police Verification Roll from the concerned authorities. He continued in service and was granted yearly increment and other consequential service benefits. While so, based on the secret verification report dated 25.05.2010 of the Government of West Bengal, which was communicated by the police to the department on 07.07.2010, the appellant was served with a memo dated 23.08.2010, stating that he is ‘unsuitable’ for employment and directing him to submit his defense, within 10 days from the date of receipt of the memo. In response, the appellant sent the details of his candidature on 09.09.2010. However, by order dated 11.02.2011 passed by the Director of Health Services, Government of West Bengal, the appellant was terminated from service with immediate effect without any enquiry. Challenging the said order of termination, the appellant preferred Original Application No.331 of 2011, which was allowed by the Tribunal, by order dated 28.08.2012. Aggrieved by the same, the State filed a writ petition being W.P.S.T.No.106 of 2013 and the High Court by the order impugned herein, allowed the same by setting aside the order passed by the Tribunal and affirming the order of termination passed by the authority concerned. Therefore, the appellant is before us with the present appeal. Digital Supreme Court Reports [2024] 12 S.C.R. 423

The learned counsel for the appellant strenuously argued that on the basis of migration certificate issued in favour of the appellant’s father, in which, the appellant’s name also finds place, the appellant is a citizen of India with effect from 19.05.1969; he was issued with ration card, Voter Identity Card and Aadhaar Card by the Government of India and he participated in all local Assembly and Parliamentary elections; and he is also an assessee under the Income Tax Act and is regularly submitting his returns. Adding further, it is contended that upon participating in the selection process, the appellant was appointed as Ophthalmic Assistant, on 21.02.1985 and he joined the service upon submission of the satisfactory report of medical examination and police verification roll. After having rendered 26 years of unblemished service, the appellant was terminated from service, based on the secret verification report of the Government. While passing such order, the appellant was not given an opportunity of personal hearing and was not furnished the alleged verification report. Therefore, the order of termination passed against the appellant is arbitrary, illegal and in violation of the principles of natural justice.

4.1. The learned counsel for the appellant also emphatically submitted that it is mandatory on the part of the police authority to submit the police verification report within a period of three months from the date of appointment. Whereas, in the present case, though the appellant joined the service on 06.03.1985, the verification report was communicated by the police to the department only on 07.07.2010, that too, just two months prior to the date of retirement of the appellant. Hence, there was inordinate delay on the part of the police authority for submission of verification report to the appointing authority.

4.2. Ultimately, the learned counsel for the appellant submitted that considering the facts and circumstances of the case, the Tribunal rightly set aside the order of termination. However, the High Court erred in allowing the writ petition filed by the State by setting aside the order of the Tribunal. Therefore, the learned counsel prayed for allowing this appeal by setting aside the order of the High Court.

On the contrary, the learned senior counsel for the respondent(s) submitted that except the migration certificate, the appellant did not produce any document to prove that he is an Indian national. Basudev Dutta v. The State of West Bengal & Ors. 424 [2024] 12 S.C.R. Migration certificate does not recognize him as a citizen of India and he has to register his citizenship with the authority concerned. Though the appellant stated that he applied for citizenship certificate and the Government of West Bengal issued no objection certificate to him with respect to his citizenship, no such document was placed on record. The Aadhaar Card, voter ID and Pan Card are not the conclusive proof of evidence for citizenship or nationality as held by this Court. Thus, the appellant being a non-citizen, he cannot claim employment against the post reserved for the Indian citizen.

5.1. Elaborating further, the learned senior counsel for the respondent(s) submitted that it was clearly stated in the appointment order that the same is subject to satisfactory reports of police verification and medical examination; though the appellant cleared the medical examination, his police verification report was still awaited; upon receipt of the communication from the Deputy Inspector General of Police, Intelligence Branch, Kolkata, vide Memo No.1899/S.231-04/SA-I/VR dated 07.07.2010, pursuant to the secret verification report dated 25.05.2010 of the Government, to the effect that the appellant was considered as ‘unsuitable’ for employment to the post in question, the Director of Health Services, Government of West Bengal, issued a show cause notice by way of memo dated 23.08.2010, calling upon the appellant to submit his defence; accordingly, the appellant submitted his reply on 09.09.2010; being dissatisfied with the same, the authority concerned terminated the appellant from service with immediate effect on 11.02.2011. Thus, according to the learned counsel, only after receipt of the reply submitted by the appellant and upon considering the same, the termination order came to be issued and hence, there was no violation of the principles of natural justice.

5.2. Referring to the decisions of this court in Nirma Industries Ltd. v. Securities and Exchange Board of India; 4 State of UP v. Sudhir Kumar Singh; 5 and Dharampal Satyapal Ltd v. Deputy 4 5 [2013] 3 SCR 662 : (2013) 8 SCC 20 [2020] 13 SCR 571 : (2021) 19 SCC 706 Digital Supreme Court Reports [2024] 12 S.C.R. 425 Commissioner of Central Excise, Gauhati and Others,6 wherein, it was observed that ‘the principles of natural justice means, a fair hearing should be given to the concerned person and the same would not necessarily imply oral hearing’, the learned senior counsel for the respondent(s) submitted that merely because the appellant was not given an opportunity of hearing, that by itself is not sufficient to quash the proceedings, unless and until it is pointed out by him that he was prejudiced by the order, which was passed behind his back and therefore, the denial of personal hearing before passing the termination order would not amount to violation of the principles of natural justice.

5.3. Adding further, the learned senior counsel for the respondent(s) submitted that police verification is essential for joining any service and it is a settled principle of law that any act contrary to law cannot be given the sanctity of being legal under law by mere passage of time and hence, the delay in submission of the verification report, cannot be a ground to quash the termination order passed against the appellant.

5.4. Therefore, the learned senior counsel for the respondent(s) submitted that the High Court correctly set aside the order of the Tribunal and restored the termination order passed against the appellant herein, by a reasoned order, which does not call for any interference by this court.

By way of reply, the learned counsel for the appellant submitted that the grandfather of the appellant was a permanent resident of Calcutta and the father of the appellant was born in the year 1911 at Calcutta and through migration certificate, the appellant came to India along with his father in the year 1969, before creation of Bangladesh (Formerly East Pakistan) and hence, he is a citizen of India. Further, the police department has no authority to neutralize the citizenship of a person. However, based on the information provided by the police authority and without ascertaining the veracity of the same and without any report / order following the provisions of the Citizenship Act, 1955 and the Foreigners Act, 1946 (31 of 1946) and the Foreigners (Tribunal) Order, 1964, the authority concerned terminated the appellant from service with immediate effect, that 6 [2015] 6 SCR 437 : (2015) 8 SCC 519 Basudev Dutta v. The State of West Bengal & Ors. 426 [2024] 12 S.C.R. too, without affording an opportunity of hearing to the appellant to adjudicate his claim of nationality. Though the Tribunal set aside the said order of termination, the High Court erred in reversing the same, by the order impugned in this appeal. It is also submitted by the learned counsel that the right guaranteed under Articles 14 and 21 of the Constitution of India is seriously violated, in view of the State not taking proper steps to continue the service of the appellant and in failing to sanction and disburse the pensionary benefits to him, after having served nearly 26 years of service.

Heard the learned senior counsel/counsel appearing for the parties and also perused the materials available on record.

It cannot be disputed that as per the interim order of the High Court, the appellant received the amount of general provident fund, group insurance and leave Salary. However, the authority concerned did not disburse the pension, gratuity and arrears of salary.

As indicated earlier, by order dated 11.02.2011, the appellant was terminated from service after rendering 26 years of service, based on the police verification report that he was considered as ‘unsuitable’ for employment to the post of Ophthalmic Assistant. The said termination order was set aside by the Tribunal, by order dated 28.08.2012 in O.A.No.331 of 2011. However, the High Court reversed the order of the Tribunal and restored the order of termination passed by the authority concerned, by the order impugned herein.

The contentions raised by the learned counsel for the appellant, assailing the order of termination passed by the authority concerned, as affirmed by the High Court, are three-fold, though interlinked and intertwined. Firstly, the appellant claimed his nationality as Indian on the strength of the migration certificate dated 19.05.1969 issued in favour of his father. Secondly, in the show cause notice, there was no mention as to why the appellant was declared as ‘unsuitable’ for employment to the Government service; the alleged secret police verification report was not served on the appellant; and no opportunity of personal hearing was provided to the appellant to defend his stand and hence, there was total violation of the principles of natural justice. Thirdly, the appellant joined the service in the year 1985, but the police verification report, which was supposed to have been filed, within a period of three months from the date of appointment, was submitted to the department only in the year 2010 and thus, Digital Supreme Court Reports [2024] 12 S.C.R. 427 there was inordinate and unexplained delay on the part of the police authority in submission of the same. ANALYSIS

Let us consider the first contention. According to the appellant, he is an Indian citizen. Section 9 of the Foreigners Act, 1946 mandates that the onus of proving citizenship of a person is upon that person who claims to be a citizen of India. For better appreciation, Section 9 of the Foreigners Act, 1946, is extracted below:

9. Burden of proof.—If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person.

11.1. In Sarbananda Sonowal v. Union of India,7 this Court pointed out that ‘there is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one’s citizenship, normally he may be required to give evidence of his date of birth, place of birth, name of his parents, their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State’.

11.2. In Lal Babu Hussein v. Electoral Registration Officer,8 it was held by this Court that ‘the question whether a person is a foreigner, is a question of fact which would require careful scrutiny of evidence since the enquiry is quasi-judicial in character’.

11.3. In the instant case, the appellant claimed that his grandparents are Indian citizens because of their birth. The provisions relating 7 8 [2006] Supp. 10 SCR 167 : (2007) 1 SCC 174 [1995] 1 SCR 877 : (1995) 3 SCC 100 Basudev Dutta v. The State of West Bengal & Ors. 428 [2024] 12 S.C.R. to citizenship are enshrined in Part II of the Constitution of India under Articles 5 to 11. Section 4 of the Indian Citizenship Act, 1955, entitles the appellant’s father to be treated as a citizen by descent. The appellant is also entitled to citizenship by registration as per Section 5 of the Act. As per Section 5(1)(a), a person of Indian origin who has been an ordinary resident in India for seven years prior to the application and as per 5(1)(b), a person of Indian origin who is an ordinary resident of any country or place outside undivided India is entitled to citizenship. “Undivided India” has been defined in Section 2 (h) as “India, as defined in the Government of India Act, 1935” as originally enacted. The intention of the Central Government to award citizenship to minorities from neighboring countries has been spelled out by way of amendment to Section 2, by introducing Proviso in Section 2 vide Amendment Act No.47 of 2019 with effect from 10.01.2020, which states that the persons like the appellant herein are not be treated as “illegal migrants”. Once an application has been submitted, the authority concerned has to take appropriate decision within a reasonable time by taking into consideration all the applicable laws and the documents produced by the appellant. However, no decision has been taken against the appellant. Therefore, we answer the first contention in favour of the appellant.

Qua the second contention, we have carefully considered the documents placed before us. Vide Memo No. 944-P.S. dated 25.05.2010, the Assistant Secretary to the Government of West Bengal, Home (Political) Department, Secret Section, Kolkata, informed to the Additional Director General of Police, Intelligence Branch, West Bengal, Kolkata, that the Government considered the appellant ‘unsuitable’ for employment to the post of Ophthalmic Assistant under the Chief Municipal Officer of Health, Burdwan. Vide Memo No.1899/S.231-04/SA-I/VR dated 07.07.2010, the said information was communicated by the Deputy Inspector General of Police, Intelligence Branch, West Bengal to the Chief Municipal Officer of Health, Burden. Subsequently, by memo dated 04.11.2010, the Director of Health Services, Government of West Bengal, Kolkata, informed to the Special Superintendent of Police(C), Intelligence Branch, West Bengal, that the case of the appellant was referred to the Government to decide over the suitability or otherwise of the Digital Supreme Court Reports [2024] 12 S.C.R. 429 verification of his employment under the Chief Municipal Officer of Health, Burdwan, because the nationality of the appellant could not be determined as Indian national, during enquiry; and finally, the appellant was considered ‘unsuitable’ by the Government.

12.1. Curiously, in all these documents, including the show cause notice, no reason was mentioned as to why the appellant was considered as ‘unsuitable’ for employment to the post of Ophthalmic Assistant. Furthermore, the alleged police verification report was not served on the appellant. As such, the appellant was unable to make his defense with supportive materials. Resultantly, he was terminated from service vide order dated 11.02.2011 of the Director of Health Services, West Bengal. Even in the termination order, there was nothing about the unsuitability of the appellant for employment to the Government service.

12.2. It is settled law that every administrative or quasi-judicial order must contain the reasons. Such reasons go a long way in not only ensuring that the authority has applied his mind to the facts and the law, but also provide the grounds for the aggrieved party to assail the order in the manner known to law. In the absence of any reasons, it also possesses a difficulty for the judicial authorities to test the correctness of the order or in other words, exercise its power of judicial review. In this context, it will be useful to refer to the judgment of this Court in Kranti Associates (P) Ltd. v. Masood Ahmed Khan,9 wherein after a detailed analysis of various judgments, it was held as follows: