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2003 DIGILAW 191 (CAL)

State of West Bengal v. Jiban Krishna Das

2003-04-21

ASOK KUMAR GANGULY, DEBI PRASAD SENGUPTA

body2003
Judgment Ganguly, J. This appeal arises out of a writ petition being C.O. No. 8242 (W) of 1993, which was dismissed by a learned Judge of the writ Court by a judgment dated 08.01.2001. While dismissing the said writ petition the learned Judge was pleased to observe that there was no error on the part of the respondents in passing the order of dismissal of the writ petitioner/appellant from his service. 2. The relevant facts of the instant case are noted below :- At the relevant point of time, the writ petitioner/appellant was working as a Cleaner in the General Shift with the Kalyani Spinning Mills Limited, a Government of West Bengal Undertaking (hereinafter referred to as the "said Company") The appellant claimed that he was the working president of the Kalyani Spinning Mills Limited Workmen Union and he was previously the General Secretary of the recognised Trade Union and also the Vice-President of All Bengal Federation of Cotton Textiles Workers. It is the case of the appellant that, as a result of his trade union activities, he incurred the displeasure of the rival union. The learned Counsel for the appellant also referred to certain letters-of appreciation received by the appellant from the Management of the said Company. 3. However, the Manager of the said Company issued a charge-sheet against the appellant on 15.06.1989. The allegations in the said charge-sheet, inter alia, were to the effect that the appellant, not being satisfied with the reply from the Senior Officer of the said Company about the posting of a Waste Machine Tenter, threatened the said Senior Officer, viz. Sri Das, with the dire consequences of physically annihilating him, and being so threatened, the said Senior Officer directed the appellant to perform his allotted duty without causing any disturbance and, thereafter, the said Senior Officer left the place. According to the Management, the said action on the part of the appellant constitutes gross misconduct in terms of the Certified Standing Order of the said Company and the appellant was asked to explain his conduct and to State why disciplinary action should not be taken against him. 4. Pursuant to such a charge-sheet, the appellant gave a reply. In the said reply, the appellant denied that he ever threatened the said Senior Officer. 4. Pursuant to such a charge-sheet, the appellant gave a reply. In the said reply, the appellant denied that he ever threatened the said Senior Officer. The appellant further stated that he merely represented the grievances of the workmen and on hearing him representing such grievances, the said officer gave a reply which completely satisfied the appellant and no such incident as alleged in the said charge-sheet had ever happened. The appellant stated that the charges were drawn up motivatedly to victimise him. It may be noted, in this connection, that along with the said charge-sheet, the appellant was also placed under suspension. As the appellant disputed the fact stated in the said charge-sheet, the said Company decided to hold any enquiry against the appellant and, accordingly, appointed one Sri Sadhan Mukherjee, Security Officer of the said Company, to enquire the charges and one Sri Amitava Roy was appointed the Presenting Officer. It appears that the appellant moved a writ petition before this Hon'ble Court and this Hon'ble Court by an order-dated 04.09.1989 directed the change of the Enquiry Officer. In the said order, the learned Judge while ordering the change of the Enquiry Officer gave the following directions:- "I would direct that when the specific objection has been raised by the petitioner apprehending that he would not get justice from the said Enquiry Officer, it would be fit and proper that some other officer be appointed an Enquiry Officer in his place." 5. Pursuant thereto the Enquiry Officer was changed. 6. The learned Advocate for the appellant submitted that in connection with the said enquiry, prayer of the appellant for engaging a lawyer to defend himself in the said enquiry was turned down. The attention of this Court was drawn to a letter dated 18.10.1989 written by the appellant to the Enquiry Officer with a prayer for defending his case by a lawyer. But, the learned Counsel urged that such prayer of the appellant was refused. However, after an enquiry, in which the appellant participated, an enquiry report was submitted by the Enquiry Officer in the month of September, 1990. In fact the Enquiry Officer started his proceeding in the month of September, 1989 and the enquiry was held on several dates and the enquiry was completed on 20.08.1990 and about a month thereafter, the Enquiry Officer submitted his report. 7. In fact the Enquiry Officer started his proceeding in the month of September, 1989 and the enquiry was held on several dates and the enquiry was completed on 20.08.1990 and about a month thereafter, the Enquiry Officer submitted his report. 7. From the said report of the Enquiry Officer, it appears that the Enquiry Officer declined the prayer of the appellant to engage a lawyer, inter alia, on the ground that the Presenting Officer is not a legally trained person and that there is no provision in the said Certified Standing Order of the Company for allowing an Advocate to represent the delinquent. The Enquiry Officer also stated that the facts of the case are not so complicated as to justify the assistance of a lawyer. This Court is of the view that those reasonings given by the Enquiry Officer are acceptable and nothing has been shown either from the proceedings of the enquiry or from the charge-sheet that either the charges were very complicated or that the Presenting Officer is a legally trained person, nor the appellant could point out before us that the Certified Standing Order of the said Company contains any provisions which would entitle him to engage a lawyer. Therefore, in the facts of the case, the order of the Enquiry Officer was not an improper decision. However, the report of the Enquiry Officer is a detailed one and from the report of the Enquiry Officer, it appears that proper opportunity was given. This Court has gone through the report of the Enquiry Officer and going through the said report, this Court finds that there was a proper enquiry and the findings of the Enquiry Officer that the management of the said Company has been able to establish the charge against the appellant is based on evidence. Thereafter, a second show cause was issued to the appellant on 03.06.1993 and the appellant was asked to show cause why his service will not be terminated by way of punishment. 8. The learned Counsel appearing for the appellant raised various grounds while assailing the departmental proceedings initiated against the appellant. The first ground taken was that the appointment of the Enquiry Officer pursuant to the order of the High Court was not proper. The Enquiry Officer who was appointed was an outsider and as such the appointment is bad. This Court cannot accept the aforesaid contention. The first ground taken was that the appointment of the Enquiry Officer pursuant to the order of the High Court was not proper. The Enquiry Officer who was appointed was an outsider and as such the appointment is bad. This Court cannot accept the aforesaid contention. The order of the High Court did not indicate specifically whether any officer or employee of the said company should be appointed the Enquiry Officer. The High Court's order merely directed a change in the appointment of the Enquiry Officer. In fact pursuant to the order of the High Court a change was made and one Mr. H. Bhattacharjee, an Advocate practising in the industrial tribunal, was appointed the Enquiry Officer. Such appointment cannot be called bad under any provision of law. The learned Counsel for the appellant was not able to point out before us any legal provision or anything from the standing order of the said company to the effect that an appointment of all outsider the Enquiry Officer is bad. The argument on this aspect has no merits or substance. 9. The next point argued was about the engagement of a lawyer. This Court has already noted the reasons given by the Enquiry Officer justifying his refusal to allow the appellant to engage a lawyer. Learned Counsel for the appellant however relied on a decision of the Supreme Court in the case of Bhagat Ram v. State of Himachal Pradesh and Others reported in 1983 (2) SCC 442 in support of contention that rejection of the appellant's prayer to engage a lawyer amounted to violation of the rights of the appellant to defent his case. In the case of Bhagat Ram the facts were that the appellant Bhagat Ram was acting as a Forest Guard at the relevant point of time. On the allegation of illegal felling of trees, Bhagat Ram was proceeded against along with a Block Officer. A joint enquiry continued up to the point of recording of evidence. Thereafter, the Presiding Officer applied for separating the enquiry and then started examining the co-delinquent as a witness against Bhagat Ram. And then the Enquiry Officer submitted a joint report both against the co-delinquent and Bhagat Ram. On the basis of such report Bhagat Ram was removed from service. In the said enquiry it was found that co-delinquent of Bhagat Ram did not have even the assistance of a ......... And then the Enquiry Officer submitted a joint report both against the co-delinquent and Bhagat Ram. On the basis of such report Bhagat Ram was removed from service. In the said enquiry it was found that co-delinquent of Bhagat Ram did not have even the assistance of a ......... Bhagat Ram's co-delinquent was his superior officer. On those facts, the Supreme Court held that a Class-IV semi-literate Forest Guard cannot defend himself properly in such a situation. But in the instant case the facts are totally different. The charge in this case did not involve any complicated questions of fact. The appellant is not an illiterate or semiliterate employee. On his own showing, he is an experienced Trade Union leader. The appellant could have taken the assistance of a co-worker if he wanted that. But his prayer for engaging a lawyer was not a justified prayer and rejection of the said prayer also does not violate either principles of fairness or any principles of natural justice. The principles settled in the case of Bhagat Ram must be appreciated in the facts of that case and in the facts of the present appeal those principles are not attracted. 10. The learned Counsel for the appellant further urged that the measure of punishment inflicted upon the appellant for a solitary incident of alleged misconduct is totally disproportionate. He further submitted that the incident alleged against him is an isolated one. And this aspect of the matter was not considered by the Disciplinary Authority. 11. This Court is unable to agree with the aforesaid contention. The incident referred to in the charge-sheet mayor may not be the sole incident of misconduct by the appellant. Even if it is assumed to be the sole incident, the same is so grave and poses such a threat to maintenance of discipline in the said company that the Court does not find the punishment to be disproportionate. When a subordinate staff is involved in an angry exchange of words with the superior officer over posting of some of the staff members and when in the course of such altercation, the delinquent employee holds not severe threats to the superior officer including the threat of physically annihilating the superior officer, such incidents, even though solitary, are grave enough to warrant the punishment of removal. 12. 12. The learned Counsel for the appellant also raised the point of non-supply of the Enquiry Officer's report. But we find that on the request of the appellant the Enquiry Officer's report was supplied to him on 16th of June, 1993 and the appellant was given time to give his reply to the 2nd show cause notice after he was served with Enquiry Officer's report. Thereafter, the delinquent gave his reply to the 2nd show cause notice. Therefore, even though there was a delay in supply of the Enquiry Officer's report, the report was given to the appellant and only after that on 20th June, 1993 he gave his reply to the 2nd show cause notice. Therefore, no prejudice has been suffered by the appellant on that ground. 13. Learned Counsel for the appellant also submitted that version of the defence witnesses was ignored by the Enquiry Officer in submitting his report. This Court finds that the Enquiry Officer has considered the witnesses for the defence under a separate heading and this has been mentioned in the enquiry report. It appears from that heading that three witnesses were produced by the appellant. The Enquiry Officer on consideration of the evidence of defence witnesses found that they answered the questions mechanically as tutored witnesses. It is well known that the conclusion which an Enquiry Officer draws on the evidence of the witnesses is not an area on which the Writ Court can interfere. It is nobody's case that in the departmental proceedings in the instant case there was no evidence nor can it be said that the finding of the Enquiry Officer's report are based on no evidence. There is substantial evidence in support of the charge against the appellant. Therefore, from the approach of the Enquiry Officer it cannot be said that the Enquiry Officer has acted in a perverse manner in reaching the findings that the charges are proved. 14. Reference in this connection may be made in the decision of the Supreme Court in the case of Kuldeep Singh v. Commissioner of Police and Others reported in 1999 (2) SCC 10 . That was a case of a departmental enquiry against a Constable in Delhi Police. Reiterating the accepted principle, Supreme Court said that the Writ Court cannot sit in Appeal over the findings of the Enquiry Officer as a Court of Appeal. That was a case of a departmental enquiry against a Constable in Delhi Police. Reiterating the accepted principle, Supreme Court said that the Writ Court cannot sit in Appeal over the findings of the Enquiry Officer as a Court of Appeal. The power of judicial review is available to the High Court only in a case where there is no evidence to support the findings or the findings recorded are such as could not be reached by an ordinary prudent man or the findings were perverse or made at the dictates of the superior officer (See Paragraph-6). The same principles have been again reiterated in a subsequent judgment of the Supreme Court in the case of High Court of Judicature at Bombay v. Uday Singh reported in 1997 SCC ( L & S ) 1132. The learned Judges in Uday Singh held that preponderance of probabilities and some materials-on-record are sufficient to reach a conclusion whether or not the delinquent has committed the misconduct. The Court is only to see whether as a reasonable man the authority concerned has reached the conclusion (See para 10). 15. Applying the aforesaid tests, as we must, we find no infirmity In the Enquiry Officer's report or in the action taken by the Disciplinary Authority on the basis of such report. 16. Learned Counsel for the appellant also relied on the decision of the Supreme Court in the case of M/s. Glaxo Laboratories (I) Ltd. v. Presiding Officer Labour Court, Meerut and Ors. reported in 1984 (1) SCC 1 . But in Glaxo the learned Judges held that the acts of misconduct alleged by the company, assuming to be true, do not come within the meaning of misconduct mentioned in the Certified Standing Order of the Company. The facts in Glaxo Laboratories (I) Ltd. (supra) were that loyal workers were going in the company's chartered bus but :n the course of their journey to different places they were manhandled by the striking workers outside the company. On those facts the learned Judges of the Supreme Court held that the acts of commission or omission allegedly took place outside the precincts of the company. Those acts may give rise to law and order situation but are not, strictly speaking misconduct within the meaning of this standing order. The learned Judges held that the employers have no extra territorial jurisdiction. Those acts may give rise to law and order situation but are not, strictly speaking misconduct within the meaning of this standing order. The learned Judges held that the employers have no extra territorial jurisdiction. In the instant case the ratio in Glaxo is not applicable inasmuch as the misconduct alleged against the appellant took place inside the premises of the company and during working hours. This is not even disputed. Such disorderly behaviour with a clear threat to the officer of the company is a misconduct within the meaning of Clauses 18(c)(viii) and 18(c)(xxiv) of the Certified Standing Order. So the Glaxo case has no application here. Therefore, we are unable to sustain the contentions raised by the appellant's Counsel. And as such the appeal is dismissed. The judgment of the learned Judge of the 1st Court is affirmed. The Writ Petition also fails. There will be no order as to costs. Later-On the prayer of the learned Counsel for the parties. Let xerox certified copy of this judgment if applied for, be made available to the learned Counsel for the parties. Sengupta, J. : I agree.