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2001 DIGILAW 557 (CAL)

Adya Nath De v. West Bengal Electricity Board

2001-08-30

PRANAB KUMAR CHATTOPADHYAY

body2001
JUDGMENT 1. The petitioner was initially employed as an Assistant Engineer under the West Bengal Slate Electricity Board and ultimately on promotion was appointed on temporary basis to the post of Deputy Chief Engineer, (Electrical) in the said establishment. The charge-sheet was issued against the petitioner by the Disciplinary Authority on 16th September, 1997. It may be mentioned herein that the petitioner was to retire in the afternoon of 30th September, 1997 on attaining the age of superannuation. The petitioner by written representation dated 29th September, 1997 requested the Disciplinary Authority to allow inspection of certain documents mentioned in the said representation and also requested to grant 30 days time for preparation and submission of written statement of defence after inspection of the documents as mentioned in the said representation. The Disciplinary Authority, however, decided to hold an enquiry against the petitioner and for this purpose appointed Enquiry Officer and Presenting Officer by two Office Orders both dated 13th December, 1997. 2. It was stated by the petitioner that in spite of repeated requests made to the Disciplinary Authority as well as to the Enquiry Officer inspections of the relevant documents were not given to the petitioner herein. However, the enquiry proceeding was concluded on 8th September, 1999 and pursuant to the direction of the Enquiry Officer petitioner also submitted his written arguments in defence on 22nd September, 1999. 3. Since, the respondent authorities did not publish the outcome of the enquiry proceedings for a considerable period a writ petition was filed earlier by the petitioner herein which was finally disposed of by a Single Judge of this Court on 12th June, 2000 whereby the respondent authorities were directed to serve the enquiry report on the petitioner within a period of two weeks from the date of the said order and the petitioner was given liberty to submit his representation before the respondent authorities within a week from the date of receipt of the enquiry report and the respondent authorities were directed to pass necessary order within a week from the date of receipt of the said representation from the petitioner. 4. Pursuant to the aforesaid order passed by this Court, the Disciplinary Authority forwarded a copy of the report of the Enquiring Authority to the petitioner herein by enclosing the same with the letter dated 16th June, 2000 written by the said Disciplinary Authority. 4. Pursuant to the aforesaid order passed by this Court, the Disciplinary Authority forwarded a copy of the report of the Enquiring Authority to the petitioner herein by enclosing the same with the letter dated 16th June, 2000 written by the said Disciplinary Authority. In the said letter, the Disciplinary Authority also informed the petitioner about the reasons for non-accepting the findings furnished by the Enquiring Authority and opined that a re-enquiry into the charges levelled against the petitioner should be held by the Enquiring Authority. 5. The petitioner, thereafter, made a representation to the Disciplinary Authority on the point of the disagreement as recorded by the Disciplinary Authority in his earlier communication. The Disciplinary Authority, thereafter, decided to re-enquire the charges levelled against the petitioner and for this purpose appointed the Enquiring Authority and Presenting Officer. The said decision of the Disciplinary Authority was duly communicated to the petitioner herein. The petitioner filed the present writ petition challenging the aforesaid decision of the Disciplinary Authority to re-enquire the charges levelled against the petitioner and mentioned in the charge-sheet in view of non-acceptance of the findings of the Enquiring Authority by the said Disciplinary Authority. In spite of the specific direction passed earlier by this Court no affidavit-in-opposition has been filed on behalf of the respondent-Board in the present proceeding. 6. Mr. Swapan Kumar Dutta, learned Counsel appearing on behalf of the petitioner contended that the charges levelled against the petitioner are not only stale but also the same deemed to have been condoned in view of granting promotion to the petitioner first to the post of Superintending Engineer and then to the post of Deputy Chief Engineer (Electrical ). 7. The alleged events as contained in the article of charge relate to the petitioner's tenure as Divisional Engineer, Burdwan (O & M ) Division from 1982-83. Admittedly, audit reports for 1982-83 to 1984-85 of Burdwan (O & M) Division were furnished to the District Anti Corruption Unit, Burdwan under Memo No. AS/V-158/1270 dated 26.5.1989 of the Officer-on-Special Duty (Vigilance Cell), WESEB. The petitioner admittedly gave a reply to the Audit Reports under his Memo No. HGG/Estt./ Personnel/A-955 dated 15.7.1989. The petitioner's observations on internal Audit Reports of 1982-83 and 1983-84 were duly received by the Officer-on-Special Duty (Vigilance Cell), WESEB. Necessary action against the petitioner was directed to be taken under Memo No. FM/IA/Trans/80 (1013)/S-190 dated 25.10.89. 8. The petitioner admittedly gave a reply to the Audit Reports under his Memo No. HGG/Estt./ Personnel/A-955 dated 15.7.1989. The petitioner's observations on internal Audit Reports of 1982-83 and 1983-84 were duly received by the Officer-on-Special Duty (Vigilance Cell), WESEB. Necessary action against the petitioner was directed to be taken under Memo No. FM/IA/Trans/80 (1013)/S-190 dated 25.10.89. 8. In the statement of imputations of misconduct in support of article of charge framed against the petitioner, Disciplinary Authority specifically mentioned as under : "...... ...Sri Dey submitted parawise reply to the aforesaid Audit Report detailing the irregularities........." 9. From the aforesaid facts, it is clear that the respondent authorities had the knowledge of the alleged events or misconduct as contained 'in the charge-sheet dated 16th September, 1997 at least in the year 1989. The West Bengal State Electricity Board Authorities by the Office Memo dated 25th October, 1989 issued direction for taking necessary action against the petitioner. The authorities, however, did not take any step or action against the petitioner and on the contrary, the petitioner was promoted to the post of Superintending Engineer (Electrical) on 2nd December, 1989 and on 19th September, 1996 respondent-Board also by its written communication appreciated devotion and long services rendered by the petitioner for the organisation. Thereafter, the respondent-Board asked the petitioner to appear before the Standing Selection Committee for selection to the post of Deputy Chief Engineer (Electrical). The prescribed procedure for selection for promotion to be followed by Standing Selection Committee also includes that for the purpose of promotion from Superintending Engineer to Deputy Chief Engineer Posts 1.2 marks for the total year of service from the date of induction in service would be given subject to maximum of 30 marks. 10. The learned Counsel of the petitioner contended that following the aforesaid prescribed procedure for promotion, Standing Selection Committee found the petitioner suitable and ultimately the respondent authorities promoted the petitioner to the post of Deputy Chief Engineer (Electrical) and thereby the alleged misconduct of the petitioner should be deemed to have been condoned by the authorities. 10. The learned Counsel of the petitioner contended that following the aforesaid prescribed procedure for promotion, Standing Selection Committee found the petitioner suitable and ultimately the respondent authorities promoted the petitioner to the post of Deputy Chief Engineer (Electrical) and thereby the alleged misconduct of the petitioner should be deemed to have been condoned by the authorities. The learned Counsel of the petitioner placed reliance upon the following decisions in support of his aforesaid contention :- (1) AIR 1970 SC page 2089, State of Punjab v. Dewan Chunilal, para 14 ; (2) AIR 1982 SC page 793, D. Ramaswami v. State of Tamil Nadu, paras 3 & 4 ; (3) 1988 (8) SCC page 222, State of Punjab & Ors. v. Bakshish Singh, paras 11 & 12 ; (4) 1993 (1) CLJ 371 , Mrinal Kanti Chakraborty v. State of West Bengal, para 8. 11. Mr. Bhaskar Mitra appearing on behalf of the respondent-Board, however, opposed the aforesaid contentions of the learned Advocate of the petitioner and submitted that the promotion of the petitioner would not amount to condonation of misconduct as alleged against him. Mr. Mitra cited a decision of the Supreme Court reported in (5) AIR 1997 SC page 3548, State of M.P. v. R.N. Mishra, in this regard. 12. Now, from the aforesaid available facts, it is clear that the authorities had full knowledge of the alleged events or irregularities including various observations mentioned in the internal audit report against the petitioner for the period 1982-83 and 1983-84 even in the year 1989. The petitioner was called upon to make his comments on those irregularities. The petitioner gave a reply to the alleged irregularities. There was a recommendation for taking action against the petitioner. All these had happened in 1989. Ignoring and/or without attaching any importance to the above, the petitioner was promoted twice. The misconduct if any committed by the petitioner prior to his promotion, therefore, stood wiped out and/or condoned and/or deemed to have been condoned. 13. In view of the contrary decisions of the Supreme Court on the aforesaid point of condonation of misconduct on account of granting promotion to an employee, the High Court is not bound to follow the later judgment. 13. In view of the contrary decisions of the Supreme Court on the aforesaid point of condonation of misconduct on account of granting promotion to an employee, the High Court is not bound to follow the later judgment. The Special Bench of this Court in a decision reported in (6) AIR 1988 Calcutta at page 1, specifically held as under :- "...............Where there are contrary decisions of the Supreme Court rendered by Benches of equal strength, the High Court, in theory, being bound by each one, is, in effect, bound by none and is not necessarily obliged to follow the later in point of time, but may follow the one which, according to it, is better in point of law..... " 14. In view of the aforesaid decision of the Special Bench of this Court, I am not inclined to follow the decision cited by Mr. Mitra and reported in AIR 1997 SC page 3548, and following the decisions of the Supreme Court in the case of State of Punjab v. Dewan Chunilal (supra), and D. Ramaswami v. State of Tamil Nadu (supra), I hold that the alleged misconduct of the petitioner deemed to have been condoned by the respondent authorities in view of granting subsequent promotions to the petitioner. 15. Learned Counsel of the petitioner further contended that the charges being state, Disciplinary Authorities should not have initiated proceeding against the petitioner by issuing charge-sheet just eleven days before the actual date of retirement. The learned Counsel of the petitioner submitted that the Disciplinary Authority has not explained why it required about eight years to come to a conclusion that the petitioner's reply on the internal audit reports for the period 1982-83 and 1983-84 was not convincing and acceptable. It was also contended by the learned Advocate of the petitioner that no explanation has been offered for the inordinate delay in issuing the charge-sheet particularly when the authorities of the respondent-Board were a ware of the alleged irregularities. 16. Learned Counsel of the petitioner, accordingly, submitted that as there is no explanation for the inordinate delay in issuing the charge-sheet, it would be unfair to permit the respondent authorities to proceed with the departmental enquiry. The learned Counsel of the petitioner cited the decisions reported in (7) AIR 1990 SC page 1308, State of Madhya Pradesh v. Bani Singh & Anr. The learned Counsel of the petitioner cited the decisions reported in (7) AIR 1990 SC page 1308, State of Madhya Pradesh v. Bani Singh & Anr. para 4, and Mrinal Kanti Chakraborty v. State of West Bengal (supra). 17. The learned Counsel of the petitioner further contended that the issuance of charge-sheet by the respondent authorities only eleven days before the date of retirement is nothing but malicious and mala fide act of the respondent authorities and, accordingly, submitted that this Court should interfere even at tile stage of issuance of the charge-sheet for the aforementioned reasons. The learned Counsel of the petitioner referred to and relied upon a decision reported in (8) AIR 2001 SC page 343, State of Punjab v. V.K. Khanna, para 33. Mr. Dutta further contended that the Disciplinary Authority in the instant case appointed Enquiry Officer and Presenting Officer even before submission of written statement of defence by the petitioner herein. Referring to Regulation 63 (b) of the West Bengal State Electricity Board Employees Service Regulation. Mr. Dutta submits that after receiving the written statement of the delinquent employee, the competent authority of the Board is entitled to hold Enquiry into the charges or may appoint Enquiry Officer or Enquiry Committee to conduct the enquiry. According to Mr. Dutta, the petitioner by letter dated 29th September, 1997 sought for inspection of certain documents and had requested the Disciplinary Authority to grant thirty days time for preparation and submission of the written statement of defence from the date of allowing the inspection of the documents mentioned in the said representation. 18. Mr. Mitra, learned Counsel of the Board, however, submitted that the said written representation of the petitioner dated 29th September, 1997 was considered as reply to the charge-sheet and, thereafter, the Disciplinary Authority appointed the Enquiry Officer and Presenting Officer by Memo dated 13th December, 1997 and as such according to Mr. Mitra requirements of the aforesaid provision of Regulation 63(b) had been fully complied with. 19. I fail to understand how the Disciplinary Authority treated the aforesaid letter of the petitioner dated 29th September, 1997 as reply to the charge-sheet particularly when the petitioner specifically requested the Disciplinary Authority to grant inspection of certain documents and 'also to grant further 30 days time, thereafter, for the purpose of submission of written statement of defence. 20. 19. I fail to understand how the Disciplinary Authority treated the aforesaid letter of the petitioner dated 29th September, 1997 as reply to the charge-sheet particularly when the petitioner specifically requested the Disciplinary Authority to grant inspection of certain documents and 'also to grant further 30 days time, thereafter, for the purpose of submission of written statement of defence. 20. Accordingly, I am constrained to hold that the Disciplinary Authority had not only acted in violation of Regulation 63(b) of the West Bengal State Electricity Board Service Regulations but also disclosed its biased attitude towards the petitioner by appointing Enquiry Officer and Presenting Officer even before receipt of the petitioner's reply to the charge-sheet. 21. The learned Advocate of the petitioner cited a decision of the Supreme Court reported in AIR 2001 SC page 343, paras 21 & 34, State of Punjab v. V.K. Khanna, in this regard which, in my opinion, is very much applicable herein. 22. The learned Counsel of the petitioner also urged that the petitioner was denied reasonable opportunity to defend his case and thereby respondent authorities acted in violation of the principles of natural Justice. According to the learned Counsel of the petitioner, the Disciplinary Authority never asked the petitioner to make a representation on the enquiry report and only advised the petitioner to submit a representation on the reasons assigned by the Disciplinary Authority for his disagreement with the findings of the Enquiry Officer. The learned Counsel of the petitioner referred to and relied upon the following decisions of the Supreme Court in support of his aforesaid contention :- (9) 1993 (4) SCC page 727, Managing Director, E.C.I.L. v. B. Karunakar & Ors, paras 26, 29, 30(iv). 57 and 60 ; (10) 1998 (7) SCC page 84, Punjab National Bank v. Kunja Behari Mishra, Paras-17, 18 and 19: (11) 1999 (7) SCC page 739, Yogi Nath D. Bagde v. State of Maharashtra, paras 28, 29, 31, 35, 37 and 38. 23. Mr. Dutta, learned Counsel of the petitioner submitted that before taking the final decision on the enquiry report by the Disciplinary Authority an opportunity was required to be given to the petitioner to submit his comments on the report of the Enquiry Officer. 23. Mr. Dutta, learned Counsel of the petitioner submitted that before taking the final decision on the enquiry report by the Disciplinary Authority an opportunity was required to be given to the petitioner to submit his comments on the report of the Enquiry Officer. The learned Counsel of the petitioner further contended that without giving opportunity to the petitioner to make a representation on the enquiry report, the Disciplinary Authority should not have taken a final decision by expressing opinion regarding non-acceptance of findings of the Enquiring Authority upon furnishing the reasons in support of disagreement. Mr. Dutta, learned Counsel of the petitioner referred to and relied upon a judgment delivered by me in the case of (12) Shyamananda Jha v. State of West Bengal & Ors. reported in 2001 (1) CLJ page 24, paras 21 & 27. 24. Opposing the aforesaid contention of the learned Advocate of the petitioner, Mr. Bhaskar Mitra, learned Advocate of the respondent Board cited a decision of the Supreme Court reported in (13) AIR 1998 SC page 1150, State of Rajasthan v. M.C. Saxena, and contended that order of the Disciplinary Authority cannot be assailed on the ground that the delinquent employee was not granted a further opportunity of hearing before taking a decision on the enquiry report. Mr. Dutta, however, contended that the aforesaid decision of the Supreme Court should not be followed in the instant case as the decision cited by the learned Advocate of the petitioner in the case of Punjab National Bank v. Kunja Behari Misra (supra), and Yoginath D. Bagde v. State of Maharashtra (supra), are later decisions and furthermore, the case of Punjab National Bank v. Kunja Behari Misra (supra), is a decision of a larger bench of the Supreme Court consisting of three Judges whereas the decision of the Supreme Court in the case of State of Rajasthan v. M.C. Saxena (supra), was delivered by a two Judge Bench of the Supreme Court. 25. Considering the aforesaid rival contentions of the learned Counsel of the respective parties, I am not inclined to accept the contentions of the learned Advocate of the petitioner on the aforesaid point as the Enquiry Officer in his enquiry report specifically held that the petitioner has not been found guilty of the charges levelled against him. 25. Considering the aforesaid rival contentions of the learned Counsel of the respective parties, I am not inclined to accept the contentions of the learned Advocate of the petitioner on the aforesaid point as the Enquiry Officer in his enquiry report specifically held that the petitioner has not been found guilty of the charges levelled against him. Since the Enquiry Officer has admittedly exonerated the petitioner from the charges levelled against him, question of granting any opportunity to the petitioner to submit any comments on the enquiry report cannot and does not arise. 26. The learned Counsel of the petitioner, however, criticised the reasons for disagreement mentioned by the Disciplinary Authority in his written communication dated 16th June, 2000. According to the petitioner, the reasons for disagreement 'assigned by the Disciplinary Authority are improper, unreasonable, inadequate and perverse. 27. According to the learned Advocate of the petitioner, Disciplinary Authority was not happy with the findings of the enquiry report and only to harass the petitioner certain reasons have been furnished by the Disciplinary Authority for non-accepting the findings of the enquiry report though the said grounds, according to the learned Advocate of the petitioner, are totally vague, devoid of any merit and, therefore, not sustainable in the eye of law. 28. The Disciplinary Authority while disagreeing with the findings of the enquiry report contended that necessary documents in support of the allegations made against the delinquent in the form of imputations were relied upon and made available to the petitioner during the enquiry. The Enquiry Officer in the enquiry report has recorded. "I find from the record that the charged Officer was supplied copies of all the listed documents mentioned in the charge-sheet. But, the unlisted documents demanded by him could not be supplied............The' charged Officer did not eventually get those unlisted documents for the purpose of preparing his defence. But, from the above letter dated 15.5.1998, it is seen that the Disciplinary Authority was also satisfied that the unlisted documents as asked for by the charged Officer were necessary for the purpose of preparing his defence............" "............ in memo No.S/V-252/VC/67 dated 6.7.1998................... But, from the above letter dated 15.5.1998, it is seen that the Disciplinary Authority was also satisfied that the unlisted documents as asked for by the charged Officer were necessary for the purpose of preparing his defence............" "............ in memo No.S/V-252/VC/67 dated 6.7.1998................... In the said memo, the Secretary who is the Disciplinary Authority further stated that the remaining unlisted documents could not be traced and as such those documents could not be supplied.................." The reason No. II as mentioned in the Memo dated 16.6.2000 is belied by the Disciplinary Authority's own memoranda dated 15.5.1998 and 6.7.1998 and is against the clear finding of the Enquiry Officer that the documents sought for by the petitioner for his defence were not supplied. 29. The Disciplinary Authority has also not specified as to which of the documents sought for by the petitioner were not relied upon by the prosecution. According to the learned Advocate of the petitioner there was no failure on the part of the Enquiry Officer as has been alleged by the Disciplinary Authority. 30. For the aforementioned reasons, I am inclined to hold that the Disciplinary Authority is totally biased against the petitioner and in order to harass the petitioner refused to accept the findings of the Enquiry Officer as the said finding of the Enquiry Officer is admittedly in favour of the petitioner. 31. Considering the entire aspects of the matter, I find sufficient merit in the arguments advanced on behalf of the petitioner and for the foregoing reasons the writ petition succeeds and the same is, thus, allowed. The impugned Memo dated 16.6.2000, 8.7.2000 and 3.8.2000 being Annexures P/19, P/21 and P/28 to the writ petition, therefore, stand quashed and let appropriate writ be issued accordingly in this regard. In the facts and circumstances of this case, there will be, however, no order as to costs.