Research › Search › Judgment

Calcutta High Court · body

2005 DIGILAW 351 (CAL)

STATE OF WEST BENGAL v. DULAL CHANDRA MONDAL

2005-05-20

ALOKE CHAKRABARTI, S.P.TALUKDAR

body2005
TALUKDAR, J. ( 1 ) THE Judgment/order dated 14th May, 2004 passed by the West Bengal Administrative Tribunal, hereinafter referred to as' the tribunal', in O. A. No. 1148 of 2001 has been sought to be assailed by the petitioner/state of West Bengal and Others. ( 2 ) GRIEVANCES of the petitioners as ventilated in the instant application under Article 226 of the Constitution of India, may briefly be stated as follows:-The respondent while functioning as a Record Supplier in the Directorate of Library Services allegedly took an amount of rs. 25. 000/- on 30. 01. 1992 from some outsiders by giving them false assurance of employment of their relatives in the Directorate of Library services. He was served with the charge Memo dated 10. 03. 1993. Respondent thus wilfully committed an act of gro. ss mis-conduct. On the basis of such charge, enquiry was conducted. Enquiry report was submitted before the disciplinary authority who passed final order of compulsory retirement from service. An appeal was preferred against such final order but in absence of any response, the respondent, as applicant, approached the Tribunal with a prayer for setting aside the impugned order of compulsory retirement dated 04. 12. 1993. The said application was, however, rejected on the ground that the petitioner made representation without waiting for the requisite period of six months as provided under Section 21 of the Administrative Tribunal act as also on the ground that it was barred by limitation. He, thereafter, moved a writ application which was registered as WPST no. 450 of 1998 praying for revoking the impugned order of compulsory retirement dated 07. 12. 1993 as also the order dated 27. 02. 1998 passed by the Tribunal in O. A. No. 870 of 1997. The division Bench of this Court by its judgment dated 20. 11. 2000 in wpst No. 450 of 1998 disposed of the application with the direction upon the appropriate authority to dispose of the petitioner's representation as contained in Annexure to the writ application. ( 3 ) THE authority concerned being the Director of Public Instruction in compliance with the aforesaid order of the Hon'ble Court passed a reasoned order dated 17. 04. 2001 thereby disposing of the representation with the observation that the punishment, as awarded to the petitioner, is in commensurate with the charge established against him. The final order of compulsory retirement was thereby upheld. 04. 2001 thereby disposing of the representation with the observation that the punishment, as awarded to the petitioner, is in commensurate with the charge established against him. The final order of compulsory retirement was thereby upheld. ( 4 ) THE respondent herein, as petitioner, thereafter approached the tribunal challenging the aforesaid order passed by the Director of Public instruction. ( 5 ) THE petitioner authorities herein, as respondents, contested the case by filing written reply denying inter alia all the material allegations and claimed that the entire enquiry proceeding was conducted in due compliance with the procedural formalities and after observing all established norms. It was also claimed that the present respondent was treated in a fair manner and the principle of natural justice was in no way violated. It was also stated that the present respondent clearly admitted that he took an amount of rs. 25,000/- from outsiders on the assurance that he would provide them with employment. ( 6 ) IT appears that the main point argued before the Tribunal was that the enquiry proceeding was conducted in a biased and motivated manner and in utter defiance of the principles of natural justice. It was further argued on behalf of the petitioner before the Tribunal that the petitioner was not given copies of the documents. The Tribunal after taking into consfderation all relevant facts and materials allowed the application filed by the present petitioner and directed re-instatement of the petitioner and the petitioner was further given all pay and allowances including arrear salaries and service benefits on and from 10. 03. 1993 till the date of his joining. ( 7 ) BEING aggrieved by and dissatisfied with the said order, the petitioner filed the instant application. ( 8 ) MR. Tarun Roy, Learned Counsel for the petitioner/state authorities submitted that the impugned judgment of the Tribunal reflects lack of appreciation of the facts and materials. He contended that there was no such material before the Tribunal so as to infer that the enquiry proceeding against the respondent was initiated in a motivated way and conducted in a mala fide manner. Referring to the materials-on-record, particularly the copy of the written complaint lodged by as many as four persons, with copy of receipt showing payment of Rs. 25,000/-, it was submitted that the authority was under obligation to initiate an enquiry. Referring to the materials-on-record, particularly the copy of the written complaint lodged by as many as four persons, with copy of receipt showing payment of Rs. 25,000/-, it was submitted that the authority was under obligation to initiate an enquiry. He contended that such enquiry was conducted in accordance with law and strictly in compliance with the principles of natural justice. ( 9 ) IMPUGNED judgment dated 14. 05. 2004 clearly reveals that the tribunal was of the view that non-supply of the copies of documents in connection with the preliminary enquiry was in violation of the principle of natural justice. It observed that non-supply of the copies of the information/ allegations before commencement of enquiry was unjustified. The Tribunal was of the view that such conduct on the part of the authority reflected bias. ( 10 ) MR. Dutta, learned Counsel for the respondent, contended that the authorities proceeded against the respondent with a pre-determined purpose to get rid of him. ( 11 ) IT is perhaps necessary to mention that the basi 5 of enquiry is a written complaint made by as many as four persons. It was supported by a receipt showing payment of Rs. 25,000/- to the present respondent. It was alleged that the respondent took Rs. 25,000/- from outsiders promising to provide them with employment. On perusal of the records, it appears that in the record of the enquiry proceeding against the respondent showing the proceeding held on 3. 6. 1993, it was noted clearly by the enquiry officer that the respondent was allowed an examination of the originals of all documents. This minute was signed by the respondent on the same day. Therefore, in course of the disciplinary proceeding the respondent was given inspection of all documents which include the copy of the complaint. Therefore, this grievance of the respondent has no leg to stand upon. ( 12 ) LEARNED Counsel for the petitioner/state authorities submitted that the West Bengal Services (Classification, Control and Appeal) Rules, 1971 was promulgated in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. The said Rules are made in exercise of legislative mandate and have statutory force. ( 12 ) LEARNED Counsel for the petitioner/state authorities submitted that the West Bengal Services (Classification, Control and Appeal) Rules, 1971 was promulgated in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. The said Rules are made in exercise of legislative mandate and have statutory force. ( 13 ) RULE 10 (3) of the said Rules lays down as follows :-"the disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the article of charge and the statement of imputations of misconduct or misbehaviour prepared under clause (ii) of sub-rule (2) and shall require the Government servant to submit to the inquiring authority within such time as may be specified a written statement of his defence and to state whether he desires to be heard in person. " ( 14 ) RULE 10 (4) (i) reads as follows :- (i) The disciplinary authority shall in all cases for the purpose of enquiry appoint an inquiring authority and forward to it: (a) a copy of the articles of charges and the statement of the imputations of misconduct or misbehaviour (b) a copy of the statement of witness, if any ; (c) evidence proving the delivery of the documents referred to in sub-rule (2) to the Government servant. " ( 15 ) ACCORDING to Mr. Roy, there could be little scope for any grievance in the matter of appointment of an inquiring authority even prior to submission of written statement. Having regard to the relevant rule, as mentioned hereinbefore, and Rule 10 (3) that the disciplinary authority requiring the Government servant to submit to the inquiring authority within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person, it cannot be said that such appointment was made in a motivated manner and with the pre-determined idea to punish the Government employee concerned. It is true that the appointment of inquiring authority while initiating inquiry cannot be found to be irregular nor there can be any rational justification for finding fault with it. ( 16 ) LEARNED Counsel, Mr. Roy contended that the respondent was given copies of the documents which were sought to be relied upon by the disciplinary authority. No doubt, statement of imputations of misconduct or misbehaviour was served upon the respondent. ( 16 ) LEARNED Counsel, Mr. Roy contended that the respondent was given copies of the documents which were sought to be relied upon by the disciplinary authority. No doubt, statement of imputations of misconduct or misbehaviour was served upon the respondent. On perusal of the records, it appears that in the record of the enquiry proceeding against the respondent in the hearing held on 3. 6. 1993, it was noted clearly by the enquiry officer that the respondent was allowed an examination of the originals of all documents. This minute was signed by the respondent on the same day. Therefore, in course of the disciplinary proceeding the respondent was given inspection of all documents which include the copy of the complaint. Therefore, this grievance of the respondent has no leg to stand upon. ( 17 ) LEARNED Counsel for the petitioner/state authorities referred to the decision in the case of State Bank of Patiala and Ors. v. S. K. Sharma, reported in AIR 1996 SC 1669 , in support of his contention that an order passed imposing a punishment on an employee upon a Disciplinary/ departmental inquiry in violation of the Rules/regulations/statutory provisions governing such inquiries should not be set aside automatically. It was held therein that the Court or the Tribunal should inquire whether (a)the provision violated is of a substantive nature or (b) whether it is procedural in character. ( 18 ) IT, however, cannot be denied that there may be certain procedural provisions which are of fundamental character and violation of the same by itself proof of prejudice. ( 19 ) ON behalf of the petitioner it was repeatedly urged that the real test is to ascertain whether the charged employee was prejudiced in any manner or not. But prejudice is not always visible, nor it has any concrete shape or character. ( 20 ) ETYMOLOGICALLY the word 'prejudice' means "preconceived opinion that is not based on reason or actual experience". It may also mean injury that results or may result from some action or judgment. ( 21 ) IT was submitted that non-supply of the written cc mplaint and the supporting receipt, in the facts and circumstances of the present case, may not strictly speaking be a technical lapse causing no prejudice whatsoever. It may also mean injury that results or may result from some action or judgment. ( 21 ) IT was submitted that non-supply of the written cc mplaint and the supporting receipt, in the facts and circumstances of the present case, may not strictly speaking be a technical lapse causing no prejudice whatsoever. Such failure to supply copy of a document which is practically the architect of the entire unpleasant controversy goes a long way to suggest that it was something more than an omission. But Rule 10 (4) of the West Bengal services (Classification, Controland Appeals) Rules, 1971 provides that with the charge-sheet the employer is to supply a list of documents proposed to be relied upon in the proceeding for proving the charges. There is no requirement under the said rule to supply copy of the documents. Therefore, while considering the complaint of the petitioner against violation of said rule 10 (4) by non-supply of documents, we find that along with charge sheet there is an Annexure which contains the list of documents and therefore, requirement of said rule was duly satisfied. ( 22 ) RELYING upon the decision in the case of State Bank of Patiala and ors. , it was further argued that the Tribunal was not justified in directing reinstatement and payment of all arrear salaries etc. in favour of the respondent but could very well direct initiation of fresh enquiry. ( 23 ) MR. Roy relied upon the decision in the case of State of Karnataka and Anr. v. Mangalore University Non-Technical Employees' Association and ors. , reported in 2002 (3) SCC 302 , in support of his contention that in all cases of violation of principles of natural justice, the Court exercising jurisdiction under Article 226 of the Constitution need not necessarily interfere and set at naught the action taken. The Apex Court in the said judgment observed that "the genesis of the action contemplated, the reasons thereof and the reasonable possibility of prejudice are some of the factors which weigh with the Court in considering the effect of violation of the principles of natural justice. The Apex Court in the said judgment observed that "the genesis of the action contemplated, the reasons thereof and the reasonable possibility of prejudice are some of the factors which weigh with the Court in considering the effect of violation of the principles of natural justice. " ( 24 ) IT was further submitted on behalf of the petitioners that in absence of a proper reply as to what was the prejudice suffered by the respondent for non-supply of the written complaint, there could'be no reason for the court to interfere as no prejudice could be established. In this context reference was made to the decision in the case of S. K. Singh v. Central bank of India and Ors. , reported in 1996 (6) SCC 415 . ( 25 ) MR. Roy thereafter, referred to the decision in the case of Canara bank v. Debasis Das, reported in 2003 (4) SCC 557 , wherein it was held that in absence of prejudice there could be no violation or principles of natural justice. ( 26 ) OUR attention was invited to the decision of the Apex Court in the case of Managing Director, ECIL, Hyderabad etc. etc. v. B. Karunakar, etc. etc. In the said case it was held that to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The Apex Court observed that "where, therefore, even after the furnishing of the report, no different consequences would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. " The said case concerned non-furnishing of a copy of the enquiry report. ( 27 ) AS regards the enquiry report, it does not appear that there is any complaint by the respondent either before the disciplinary authority or before the Tribunal that the said report was never supplied to the respondent. Therefore, in absence of any such complaint on facts such contention of the learned Advocate for the respondent of alleged non-supply of copy of the enquiry report, cannot be allowed to be raised at this stage. ( 28 ) WITH regard to complaint of non-furnishing imputation to the concerned employee, it appears that charge-sheet itself contains an annexure narrating the imputation of charges and therefore, the said requirement has also been duly satisfied. ( 28 ) WITH regard to complaint of non-furnishing imputation to the concerned employee, it appears that charge-sheet itself contains an annexure narrating the imputation of charges and therefore, the said requirement has also been duly satisfied. ( 29 ) IN the case of Ramchandra Keshav Adke (Dead) v. Govind Joti chavare and Ors. reported in AIR 1975 SC 915 , it was held that "where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden. " The command to do the thing in a particular manner implies a prohibition to do it in any other manner, {ref: AIR 1936 PC 253 (2) Maxwell on Interpretation of Statutes. } ( 30 ) IN the case of Macfoy v. United Africa Co. Ltd. , reported in 1961 (3) All England Law Reporter 1169, it was observed that "if an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without moro ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. " ( 31 ) IT is settled position of law that where a statute vests certain power in an authority, that power has to be exercised only in that manner. ( 32 ) REFERENCE was made to the decision in the case of Ratan Lal sharma v. Managing Committee, Dr. Hari Ram (Co-education) Higher secondary School and Ors. , reported in AIR 1993 SC 2155 , wherein it was held that rules of natural justice are foundational and fundamental concepts and law is now well settled that the principles of natural justice are part of the legal and judicial procedures. Learned Counsel for the respondent relying upon the aforesaid decision submitted that a plea not raised before the tribunal cannot be allowed to be raised for the first time in writ proceeding. We, however, fail to find justification for such reference. Learned Counsel for the respondent relying upon the aforesaid decision submitted that a plea not raised before the tribunal cannot be allowed to be raised for the first time in writ proceeding. We, however, fail to find justification for such reference. ( 33 ) LEARNED Counsel for the respondent also relied upon the decisions in the case of State ofu. P. v. Mohd. Sharif (dead) through L. Rs. , reported in AIR 1982 SC 937 , and the case of State of U. P. v. Shatrughan Lal and anr. , reported in AIR 1998 SC 3038 , while submitting that there is no material to the satisfaction of the judicial conscience of the Court to show that the respondent was offered access to the documents which were sought to be relied upon in connection with the enquiry. It was contended that mere allowing inspection is not necessarily a substitute for non-supply of a document particularly when it was not pleaded that such documents would be so voluminous that it would be difficult to arrange supply of copy of the same. ( 34 ) REFERENCE was also made to the decisions in the case of committee of Management, Kisan Degree College v. Shambhu Saran pandey and Ors. , reported in 1995 (1) SCC 404 and the case of Hans Raj gupta v. State of Punjab, reported in 1992 (1) SLR 146. ( 35 ) THE learned Advocate for the respondent argued on non-supply of copy of preliminary enquiry report. With regard to this, the law is settled that if the employer relies upon the preliminary report in proving the charges in regular disciplinary proceeding, the same cannot be done without supplying the copy of the preliminary enquiry report to the concerned employee. But in the present case, admittedly the report of the preliminary enquiry was not relied upon in the disciplinary proceeding and therefore, the employee being not entitled to supply of copy of the preliminary enquiry report, cannot make a grievance of its non-supply. But in the present case, admittedly the report of the preliminary enquiry was not relied upon in the disciplinary proceeding and therefore, the employee being not entitled to supply of copy of the preliminary enquiry report, cannot make a grievance of its non-supply. ( 36 ) WITH regard to contention of the employee that charges were not placed properly in the way of stating the charges and explaining the same to the petitioner, the proceeding records show clearly that on the very first day of the proceeding at first the charges were read out to the employee first in English and then explained in Bengali and therefore, the above allegation of the employee has no basis. There is no material to show that above recording is incorrect in any manner and there is no sufficient allegation on facts contrary to the aforesaid. Therefore, this contention of the employee also cannot stand. ( 37 ) WITH regard to alleged adminission made by the delinquent, as it does not appear that the employee was granted sufficient opportunity as regards his alleged admission of guilt, consideration of such admission at a late stage of the disciplinary proceeding, cannot be relied upon. But as the finding in the proceeding was not solely on the basis of such admission but on other materials proving serious charges contention of the employee regarding this admission also does not appear to be sufficient for quashing the final order. ( 38 ) IT is the settled law that an administrative authority who purports to act by its regulation must be held bound by it. This finds support in the decision in the case of Sukhdev Singh v. Bhagatram, reported in AIR 1975 sc 1331 . ( 39 ) MR. Justice Frankfurter observed in the case of Vitarelliv. Seaton, 1959 (359) US 553, as follows :-"an executive agency must be rigorously held to the standards by which it professes its action to be judged. . . . Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. . . . . This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. . . . . This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword. " ( 40 ) THE question may arise as to how far this Court can really interfere in the matter of a disciplinary proceeding. In the case of U. S. State Transport corporation v. Mahesh Kumar Mishra, reported in AIR 2000 SC 1151 , it was held that High Court can interfere when punishment is shockingly disproportionate and substitute the same. ( 41 ) IT is perhaps necessary to mention that even in the matter of disciplinary proceeding, the High Court cannot afford to remain a passive onlooker when it finds that in the conducting of it there had been violations of the principles of natural justice or that the authority concerned acted with bias. ( 42 ) ONE cannot also be unmindful to the fact that Court's will lose efficacy if they cannot respond to the needs of the society. Moreover, the society demands that the Court adopt a justice oriented approach. ( 43 ) WITH regard to the contention of the employee that there was a failure on the part of the authority concerned to act in a free and fair manner, as it does not appear that there was any substantial failure which amounts to any violation of any principle of natural justice or violation of any rule governing the disciplinary proceeding which amounts to illegality in the decision making process, such contention of the employee also cannot be accepted. Therefore the writ petition is allowed and the impugned judgment is set aside. The original application is dismissed. No costs. Urgent xerox certified copy of this order, if applied for, be supplied to the parties after due compliance with the legal formalities.