Union of India v. Sushil Kumar Gunguly — 1986 DIGILAW 419 (CAL)

Judgment : Mookerjee, J. : Sushil Kumar Ganguly, the Respondent No. 1 at the relevant time was an Examiner in the Air Sorting Office, Dum Dum Airport under the Collector of Customs, Calcutta, Sri P.G. Pal, Assistant Collector of Customs held an enquiry under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 against the present Respondent No. 1 in respect of two articles of charge. By his report, the Enquiry Officer found him guilty of the first charge which was to the effect that while functioning as the Examiner posted at Air Sorting Office at Dum Dum Airport on 17th December, 1978, he was found to be under the influence of intoxicating drink and had thereby violated Rule 22(a) of the Central Civil Services (Conduct) Rules, 1964. The Enquiry Officer, however, found that the prosecution could not prove against the present Respondent No.1 the second charge that he had attempted to pilfer some article, namely one silken shirt and one handkerchief, from one registered package during examination in the Air Sorting Office, Dum Dum Airport on 17th December, 1978 and that he had failed to maintain absolute integrity and bad, acted in a manner highly unbecoming of a government servant and had violated sub-rules (i) and (iii) of Rule 2(1) of the Central Civil Services (Conduct) Rules, 1964. By his order dated 8th January, 1981, the Collector of Customs, Calcutta disagreed 'with the aforesaid finding of the Enquiry Officer. The Collector of Customs held that the second' charge of attempting to pilfer articles from one registered package curing examination on 17th December, 1978 had been fully established against the Respondent No. 1. The Collector of Customs found that there was no doubt of the fact that on 17th December, 1978 during duty hours the Respondent No. 1 had consumed liquor but there was no conclusive proof in his behaviour or otherwise during the relevant time that he was in a state of intoxication so as to attract the provisions of Rule 22(b) of the Conduct Rules. The Collector of Customs, Calcutta, imposed he penalty of compulsory retirement upon Respondent No. 1, Sushil Kumar Ganguly. 2. Sushil Kumar Ganguly, the Respondent No. 1 herein, filed an application under Article 226 of the Constitution of India challenging the said disciplinary proceedings against him which culminated in issue of tine order for his compulsory retirement. The Collector of Customs, Calcutta, imposed he penalty of compulsory retirement upon Respondent No. 1, Sushil Kumar Ganguly. 2. Sushil Kumar Ganguly, the Respondent No. 1 herein, filed an application under Article 226 of the Constitution of India challenging the said disciplinary proceedings against him which culminated in issue of tine order for his compulsory retirement. Upon the said application Civil Rule No. 601(W) of 1981 was issued. On 18th July, 1984. the Hon'ble Mr. Justice Samir Kumar Mookerjee made the said Rule absolute obtained by Sushil Kumar Ganguly (the Respondent No. 1 herein) and quashed the impugned order for his compulsory retirement and also the entire enquiry proceeding. The learned Judge ordered that a Writ of Mandamus be issued commanding the respondents not to give effect or further effect to the said order for compulsory retirement. The learned Trial Judge also directed the respondents to reinstate the writ petitioner with all due benefits in accordance with law and to pay all his dues treating to be in service. Being aggrieved, by the said judgment dated 18th July, 1984 of Samir Kumar Mookerjee, J., the Union of India, the Collector of Customs and others have presented this appeal under Clause 15 of the Letters Patent. 3. The learned trial Judge, inter alia, held that the Disciplinary Authority did not record reasons for his disagreement with the findings of file Enquiry Officer and had merely stated that the findings of the Enquiring Officer were not acceptable Mr. Banerjee, who had appeared on behalf of the appellants, has pointed out that as the Disciplinary Authority the Collector of Customs had in fact recorded his own reasons for finding that the delinquent Officer was not guilty of Charge No. 1 but he was guilty of Charge No.2. The learned trial Judge himself in his judgment had observed "No doubt it (i.e. the Disciplinary Authority) has tried to arrive at his own finding upon an appraisal of the evidence but such finding could not be said to be findings which a reasonable man could or should on the existing state of evidence reach." In other winds according to the learned trial Judge the findings of the Disciplinary Authority about the charges framed against the respondent officer were in effect perverse. The Disciplinary Authority was not expected to write out a judgment in the manlier an ordinary court law does. The Disciplinary Authority was not expected to write out a judgment in the manlier an ordinary court law does. Under sub-rule (2) of Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 in case of its disagreement with the findings of the Enquiring Officer on any article of charge, the Disciplinary Authority is to record its reasons for such disagreement and also to record its own findings on such charge if the evidence on record is sufficient for the purpose. 4. The learned trial Judge, with respect was not correct in observing that the writ court can certainly re-appraise evidence and scan the same to find out if the conclusions reached by the Disciplinary Authority are reasonable based on such evidence. The decision of the Supreme Court in the case of (1) State of Assam v. Mohan Chandra Kalita, AIR 1972 SC 2535 , is not really an authority for such a board proposition. In the said case of State of Assam v. Mohan Chanora Kalita (Supra), in an enquiry against a sub-Deputy Collector an a charge of illegal collection of money from the villagers, some evidence was led in respect of matters extraneous to the charge prejudicing the enquiry. The Enquiry Officer also based his conclusion on conjectures and there was no evidence to show that the amount as alleged was realised by the delinquent himself or at his instance or even by his connivance. In the case of State of Assam v. Mohan Chandra Kalita (Supra), the Supreme Court upheld the position and the High Court quashing the punishment order of the Additional District Magistrate, Tezpore because the findings of guilt in the said case were erroneous on the face of the record inasmuch as there was no evidence to prove the charge of illegal collection of money by the officer, In the case of (2) Sunil Kumar Banerjee v. State of West Bengal, AIR 1980 SC 1170 . Chinnappa Reddy, J. had observed" A learned Single Judge of the High Court went into the matter in detail, almost as if he was hearing a regular appeal, perhaps because one of the arguments urged before him was that there was no evidence to sustain any of the charges". Chinnappa Reddy, J. had observed" A learned Single Judge of the High Court went into the matter in detail, almost as if he was hearing a regular appeal, perhaps because one of the arguments urged before him was that there was no evidence to sustain any of the charges". The object of examining the evidence by the writ court is to find out whether or not the order of the Disciplinary Authority is erroneous on the face of the record i.e. whether the findings of guilt are based on no evidence or the same are perverse. Distinctions have been also drawn between the errors of fact and errors of law. The Supreme Court in the case of (3) State of Madras v. Sundaram, AIR 1965 SC 1103 enunciated the legal principles thus :- "High Court in the exercise of its jurisdiction under Article 226 of the Constitution of cannot sit in appeal over the findings of fact recorded by a competent tribunal in a properly conducted departmental enquiry except when it be shown that impugned findings were not supported by any evidence it cannot consider adequacy of that evidence to sustain the charge." 5. Before we proceed to examine in the light of the above principles of law the order passed for compulsory retirement of the Respondent No. 1, we may dispose of certain other points raised before us. Mr. Mukherjee, who has appeared on behalf of the petitioner, submitted that the enquiry proceedings against his client were liable to be quashed on the ground that in terms of Rule 14(18) of Central Civil Services (Classification, Control & Appeal) Rules, 1965 the Enquiring Authority after close of the case did not examine the delinquent officer and question him on the circumstances appearing against him in the evidence for the purpose of enabling him to explain any circumstances appearing in the evidence against him. This provision of Rule 14(18) are almost part materia with. Rule 8(19) of the All India Services (Discipline and Appeal) Rules, 1969. The Supreme Court in the case of Sunil Kumar Banerjee v. State of West Bengal (Supra), had rejected a similar argument that failure to comply with the requirements of the said Rule vitiated the enquiry. Only in case prejudice is established, an enquiry may be officer did not examine the officer on the circumstances appearing against him in the evidence. 6. Only in case prejudice is established, an enquiry may be officer did not examine the officer on the circumstances appearing against him in the evidence. 6. In arriving at his finding that delinquent officer was guilty of second charge, the Collector of Customs as the Disciplinary Authority had purported to rely upon the statements of Chittaranjan Kundu and K.C. Talukdar recorded during one of the preliminary enquiries into the incident of 17th December, 1979. The delinquent officer was given copies of the previous statements of these witnesses and the said statements were made parts of the records of the enquiry. Therefore, the delinquent officer in his writ application could not have validly complained against the Disciplinary Authority considering the previous statements of some of the witnesses who were also examined before Sri P.G. Pal. the Enquiring Officer. 7. On behalf of the Respondent No.1, who was the petitioner in the court below. It has been urged that the disciplinary enquiry was vitiated by reason of refusal on the part of the authorities to supply the preliminary enquiry reports. The learned trial Judge upheld this contention and held that the reasons for withholding the said reports of preliminary enquiry were illegal and in, violation of principles of natural justice, and thereby the disciplinary enquiry became invalid. In Annexure 2' of the Memorandum of Charge one report dated 18th December, 1978 of Sri D.M. Chanda and another report dated 18th December, 1978 of Sri S. Biswas were mentioned among the documents by which the Articles of Charges framed against the officer were proposed to be sustained. The delinquent officer by his letter dated 18th August, 1979 had prayed for inspection among others, reports submitted to the Disciplinary Authority by officers appointed to hold preliminary enquiry to asserting facts. The Enquiry Officer by his letter dated 4th January, 1980 informed tile petitioner, inter alia :- "It has been repented by the Disciplinary Authority that no reference to the above item had been made in the relevant statement of allegations. Privilege had been claimed by the Disciplinary Authority in the public interest in terms of proviso to sub-rule (13) of Rule 14 of the CCS (CCA) Rules, 1965 and hence the charged officer's request for inspection and taking copies thereof cannot be accede to." 8. Privilege had been claimed by the Disciplinary Authority in the public interest in terms of proviso to sub-rule (13) of Rule 14 of the CCS (CCA) Rules, 1965 and hence the charged officer's request for inspection and taking copies thereof cannot be accede to." 8. Thus, the writ petitioner was denied inspection and also copies of other fact-finding enquiry reports on two grounds :- (1) The said reports were not mentioned in the statement of allegations. (2) The Disciplinary Authority had claimed privilege under proviso to Sub-rule (13) of Rule 14 of the Rules. 9. The learned trial Judge has held as bad the above ground for withholding the preliminary enquiry reports asked for by the delinquent officer. The learned trial Judge was justified in finding that the holding of the documents was not justified under proviso to sub-rule (13) of Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules. In the first place, there was nothing on record to indicate that the authority having the custody for forming his satisfaction that the production of the same would be against public interest or security of the State. The Enquiring Officer did not annex to his letter dated 4th January 1980 the alleged order by which the authority having custody or possession of the said preliminary enquiry reports had recorded that he was satisfied in the manner required under proviso to Rule 14(13) of the Rules. At the time of the hearing of the writ application of this appeal, there was nothing before the court to establish that there was any relevant material before the said Authority for forming his satisfaction that the production of said enquiry reports would be against the public interest of security of the State. Such decision to uphold on grounds of public interest or security of India, production of and document before the court or tribunal was not final and by analogy of sections 123 and 161 of the Evidence Act, we are inclined to hold that the writ court is entitled to consider whether such claim of privilege ought to be upheld or not. The Authority who withheld the document did not affirm any affidavit in this court. Secondly the said enquiry reports were in respect of the conduct of the delinquent officer while he was functioning as Examiner posted at Air Sorting Office, Dum Dum Airport. The Authority who withheld the document did not affirm any affidavit in this court. Secondly the said enquiry reports were in respect of the conduct of the delinquent officer while he was functioning as Examiner posted at Air Sorting Office, Dum Dum Airport. There is no material on record to establish that even prima facie any question of public interest or security of the State would be affected by production of the preliminary enquiry reports against the delinquent officer. 10. Even if the claim of privilege under Rule 14(13) of the said Rules be rejected, the court has to decide the validity of other grounds given by the Enquiring Authority for denying inspection and copies of preliminary enquiry reports. The said enquiry reports were not mentioned in the statement of allegations and the prosecution did not intend to establish by relying alongwith other evidence upon the said enquiry reports. But there is some force in the submission of Mr. Mukherjee, learned Advocate on behalf of the respondent, that even in case the prosecution did not intend to rely upon the said reports will in aid of his defence the delinquent officer may himself ask for production of the report. In this connection, the learned trial judge had relied upon the Supreme Court in the case of (4) State of Maharashtra v. Bhaisankar Joshi, AIR 1969 SC 1302 , which had affirmed the earlier decision of the Supreme Court in the case of (5) Union of India v. H. C. Goel, AIR 1964 SC 364 . The Court at the same time had pointed out that the question whether reasonable opportunity has or has not been afforded to Government servant must depend on the facts of the each case but it would be very rare case indeed, when it could be said that the Government servant is not prejudiced by the non-supply of the report of the Enquiring Officer. The last part of the observations ought to be read in the context of the facts of the case in State of Maharashtra v. Bhaisonkor Joshi (Supra). In the said case the enquiry report was not annexed to file notice by which the delinquent officer was asked to show came why the punishment of dismissal nom service should not be inflicted upon him. In the said case the enquiry report was not annexed to file notice by which the delinquent officer was asked to show came why the punishment of dismissal nom service should not be inflicted upon him. The Supreme Court in the case of (6) Krishna Chandra Tandon v. Union of India, AIR 1974 SC 1589 , upon facts of that case came to the conclusion that the Enquiry Officer and the punishing authority not having relied upon the preliminary report against the delinquent officer or arriving at the conclusions the servant could not make a grievance of a denial of reasonable opportunity on the ground of non-supply or these reports. In the instant case, the annexures to the charge sheet mentioned two other preliminary enquiry reports and admittedly the copies of such preliminary enquiry reports were supplied to the petitioners Merely because prior to initiation of the departmental enquiry there might have been other enquiries which were in the nature of inter-departmental papers; The delinquent officer cannot claim inspection of such reports which were not relied upon in framing charges and upon which the Enquiry Officer and the Disciplinary Authority did not rely in determining the guilt of these charges. 11. As already observed, it was the case of the delinquent officer himself that on 17th December, 1978 he had consumed alcoholic drink and at the time of the examination of the foreign postal covers in the Air Sorting Officer at Dum Dum Airport whatever he had done was under influence of such drinks. The Enquiring Officer found him guilty of the charge of intoxication and found that the second charge of pilferage had not been sustained. The Disciplinary Authority reversed the said finding. Therefore, in his report Mr. Chandra, an officer of the Customs Department, found the explanation of the delinquent officer to be prima facie correct. It was for the Enquiry Officer and the Disciplinary Authority to decide which version regarding the incident ought to be accepted. Therefore, we conclude that by with holding the preliminary enquiry reports no prejudice was caused to the delinquent officer and on this ground the Disciplinary enquiry against him was not liable to be quashed. 12. Even if the findings made by the learned trial Judge be sustained in their entirely, we fail to see how the charge-sheet framed against the petitioner could have been quashed. 12. Even if the findings made by the learned trial Judge be sustained in their entirely, we fail to see how the charge-sheet framed against the petitioner could have been quashed. In the writ petition itself the Authority frame the two charges against him were not questioned by the writ petitioner. The trial court did not record any finding regarding the legality of the charge sheet. Therefore, the trial court ought not to have quashed the charges. 13. For the reasons presently indicated we however hold that the order of compulsory retirement passed against the writ petitioner ought to be quashed with a direction upon the Disciplinary Authority to consider afresh in accordance with the law the report of the Enquiry Officer in respect of the two charges framed against the petitioner and decide whether the Disciplinary Authority would take action under sub-rule (2) of Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules. We have already observed that the impugned order of the Disciplinary Authority regarding disagreement with the finding of the Enquiring Officer on the Articles of Charge could not be successfully assailed on the ground that the Disciplinary Authority did not record reasons of his disagreement. We have however already pointed out that in the instant case the first and the second charges framed against the delinquent officer were closely related and practically arise out of same or associated facts. The Disciplinary Authority found the delinquent officer guilty of the second charge of pilferage of a shin and a handkerchief from a foreign postal cover. The Disciplinary Authority did not accept the finding made at the time of 'on-the-spot' preliminary enquiry and the finding made by Mr. Pal, the Enquiry Officer, that 'at the time of the incident the delinquent officer was under the influence of alcohol. The expression 'pilferage' means to pillage, i.e., to rob, plunder or steal especially, in small quantity. Therefore, in substance the second charge was of dishonest removal of said two items. In case the first charge was sustained against the officer, the Disciplinary Authority may have to consider whether the officer had intentionally and with consciousness of what he was had allegedly opened the foreign postal cover in question and had taken out a shirt and a handkerchief. 14. In case the first charge was sustained against the officer, the Disciplinary Authority may have to consider whether the officer had intentionally and with consciousness of what he was had allegedly opened the foreign postal cover in question and had taken out a shirt and a handkerchief. 14. The Disciplinary Authority accepted the case of the delinquent officer that at the relevant date he had taken two pegs of brandy. In our view, the Disciplinary Authority was not justified in observing that it was a pity as to whether the officer was habituated to alcoholic drink or had taken such drink only on the date of incident to relieve him of his stomach upset. It was for the prosecution to establish whether the officer was habitually addicated to drink find whether even after he had consumed two pegs of brandy, he was fully aware of what he doing at the time of the examination of the foreign postal cover. The Disciplinary Authority also committed an error apparent on the face of the record by observing that there was no conclusive proof from his behaviour or otherwise during the relevant time that he was in a state of intoxication. In our view, standard of conclusiveness of proof is not required in a departmental proceeding and therefore, the grounds for rejecting the officer's claim that on the date of the occurance he was under the influence of drink are erroneous on the face of the record. 15. Once we reach the conclusion that the reasons by the Disciplinary Authority in respect of the finding of the Enquiry Officer regarding the first charge are manifestly wrong, the Disciplinary Authority ought to be directed to again consider whether the officer was guilty of the second charge or the defence pleaded by him ought to he accepted. Undoubtedly, the Disciplinary Authority was entitled to take a different view of the evidence as regards the alleged removal of the items in question from a foreign postal cover but it would be still necessary for him to further decide whether such act constituted pilferage or not. In other words, the Disciplinary Authority had still to consider whether or not at the relevant time the delinquent officer was under the influence of liquor or he had committed the alleged acts intentionally and consciously. In other words, the Disciplinary Authority had still to consider whether or not at the relevant time the delinquent officer was under the influence of liquor or he had committed the alleged acts intentionally and consciously. The said findings may have important bearing also on the question of the particular penalty which may be imposed upon the delinquent officer. The Disciplinary Authority not having at all applied his mind to these relevant facts, his order for compulsory retirement of the delinquent officer ought to be set aside and with liberty to again proceed with the enquiry from the stage subsequent to submission of the enquiry report by the Enquiry Officer. We express no opinion as to whether the Respondent No. 1 was guilty what punishment, if any, ought to be imposed upon him. For the foregoing reasons, we allow the appeal in part, modify the judgment passed by the learned trial Judge. We set aside his order for quashing the charge-sheet and the enquiry proceeding up to the submission of the report by the Enquiry Officer. We, however, uphold the order of the learned trial Judge quashing the impugned order of the Disciplinary Authority finding the delinquent officer guilty of the Charge No.2 and finding him not guilty of Charge No. 1 and also imposing penalty of compulsory retirement from service. We command the Disciplinary Authority again to act and proceed in accordance with law and in terms of the relevant clause of Rule 15 of the Central Civil service (Classification, Control and Appeal) Rules. There will be no order as to costs. Ahmed, J.: I agree.