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2005 DIGILAW 72 (CAL)

KALYAN KUMAR DUTTA v. UNION OF INDIA

2005-02-03

ASHIM KUMAR BANERJEE

body2005
ASHIM KUMAR BANERJEE, J. ( 1 ) WHO is superior? An elected representative of a body corporate or a paid employee engaged by the body. Answer of this question would play a key role in resolving the controversy germane in this writ petition. ( 2 ) RESPONDENT No. 2 is a body incorporated under Section 25 of the companies Act, 1956. Primary object of the respondent no. 2 is to assist and promote engineering export abroad. The members of the respondent no 2 are exporters doing their business within the country for exporting their products abroad. Under the Articles of Association for a prescribed term members elect their representative to the board which is called council. Head of the council is Chairman and under clause 22 he is the person primarily responsible for the affairs the council. There are various committees set up for the purpose of smooth administration of the council. Those committees are constituted from amongst the members. Apart from the members as well as the elected representatives to run day to day affairs of the council there are employees engaged by the council. Those employees are paid month by month their salaries and other perquisites out of the resources of the council and their services are regulated by the council through relevant rules prescribed therefor. ( 3 ) ALTHOUGH the council is an autonomous organization of the exporters they play a key role in having promotion of the exports including various subsidy schemes, propounded by the Union of India through Ministry of commerce. Central Government has various schemes for promotion of export so that the country can earn foreign exchange through engineering export and those schemes are available to the exporters through the instrumentality of the council. In other words, the council has been set up at the instance of the Central Government and the Central government has its control in running the said council. ( 4 ) RESPONDENT no. 4 and 5 are rhe paid employees of the council whereas respondent no. 3 is the Chairman of the council. ( 5 ) PETITIONER is also a paid employee of the council. He Joined the council in 1977 as ail Assistant and by dint of promotion from time to time he has been elevated upto the post of Deputy Director. 4 and 5 are rhe paid employees of the council whereas respondent no. 3 is the Chairman of the council. ( 5 ) PETITIONER is also a paid employee of the council. He Joined the council in 1977 as ail Assistant and by dint of promotion from time to time he has been elevated upto the post of Deputy Director. ( 6 ) IT is contended on behalf of the petitioner that while working under the council assuming various responsibilities he was awarded with various appreciations by the council. One of such resolution as quoted in page 6 of the petition is reproduced below :"working of the Regional Committee/regional Office a detailed discussion was held and all the members were of unanimous view that since the joining of Shri K K. Dutta as Regional Manager things have improved. The Committee wishes to bring on record that Shri k. K. Dutta is very sincere, dedicated to the Council and an honest officer. He has been very instrumental in solving the long pending problem with the landlords and thus saving a lot of revenue for the council. He mobilized maximum number of participants during india-TECH Expositions in Venezuela and Birmingham. Committee unanimously passed resolution that his services in Regional Officer should be retained. " ( 7 ) ON November 27, 2001 the writ petitioner was transferred to calcutta from New Delhi. Since the writ petitioner had been staying at new Delhi for a considerable period along with his family members he was to move to Calcutta not only with his family members but also with all his belongings. ( 8 ) HE purchased two sets of tickets for December 5, 2001 one for rajdhani Express and other for Kalka Mail. According to the petitioner he was doubtful as to whether he would be able to travel by Rajdhani express along with all his belongings and as such as abundant caution he purchased second set of tickets for Kalka Mail. Just two days before the journey on December 3, 2001 the petitioner cancelled the tickets for Rajdhani Express, however made xerox copies of the ticket of the rajdhani Express. Petitioner came to Calcutta by Kalka Mail and reached calcutta on December 6, 2001. While joining at Calcutta the writ petitioner informed the authority at Calcutta about his travel through kalka Mail. Petitioner came to Calcutta by Kalka Mail and reached calcutta on December 6, 2001. While joining at Calcutta the writ petitioner informed the authority at Calcutta about his travel through kalka Mail. The writ petitioner however, submitted his travel bill along with the xerox copy of the Rajdhani ticket. However, writ petitioner realized his mistake when it was pointed out to him and he did not withdraw any money on that account. ( 9 ) ON February 14, 2002 the writ petitioner was served with a show cause notice appearing at page 129 of the writ petition. The show cause notice was issued by the respondent no. 5 being the secretary of the council. It was alleged that although he had traveled by Kalka Mail he claimed reimbursement of train fare for Rajdhani Express by his letter dated December 10, 2001. On February 6, 2002 he again sent a photo copy of the ticket and claimed reimbursement on the basis thereof. The writ petitioner was charged with misconduct and was asked to reply to the show cause notice within 7 days. He approached this court by way of writ petition. This court extended the time to furnish reply to the show cause notice. On March 21, 2002 the writ petitioner replied to the show cause notice. In reply to the show cause notice the writ petitioner admitted his mistake. According to him he submitted his travel bill under the misapprehension that he was entitled to the fare for Rajdhani Express although he had not traveled by the said train. He also contended that the mistake was not intentional and it was done in haste. In the reply the writ petitioner also referred to his past record and claimed that because of him the council was benefited in the recent past. The authority was not satisfied with his reply. An enquiry officer was appointed. A detailed enquiry was held. The enquiry officer ultimately submitted his report on October 4, 2002 appearing at pages 135 to 152 of the writ petition. The writ petitioner was served with his second show cause notice cm December 20, 2002 appearing at page 155 of the petition. The writ petitioner replied to the show cause notice on January 13, 2003 appearing at pages 156 to 158 of the petition. The writ petitioner was served with his second show cause notice cm December 20, 2002 appearing at page 155 of the petition. The writ petitioner replied to the show cause notice on January 13, 2003 appearing at pages 156 to 158 of the petition. The writ petitioner was awarded punishment of dismissal from service by a letter dated January 15, 2003 appearing at page 170 of the writ petition. The content of the letter of the dismissal being relevant herein is quoted below:"i have considered your representation dated 13th January, 2003. The instances cited by you do not warrant any reduction in the penalty proposed, because by reason of the misconduct proved against you at the enquiry, the Management has lost confidence in you. There is also nothing in your past records to warrant any lesser punishment. You are hereby dismissed from the service of the Council with immediate effect. All your dues are being sent to you separately. '' ( 10 ) THE authority by the said letter informed him that as by reason of his misconduct proved against him at the enquiry the management lost confidence in him. The respondent no. 5 being signatory of the letter also informed him that there was nothing in his "past records to warrant any lesser punishment". ( 11 ) THE council thereafter in its meeting held on June 30, 2003 ratified the action on the part of the. respondent no. 5. The resolution has been annexed to the affidavit of the respondent no. 5 the relevant paragraph dealing with this aspect being relevant herein is quoted below: this issue of dismissal from the services of the Council of an employee featuring in the letters of the Executive Director and chairman also cropped up during the course of the discussion. It was clarified that the appointing authority had the power to dismiss and all actions taken by the Executive Director and the Secretary in this regard were in order. Shri S. S. Kapur. SI. Secretary, MOC, new Delhi wanted to know as to whether the present Rules of the council provide for any appellate authority to whom an employee aggrieved by any decision taken by the Secretariat may apply for redressal of his grievances. It was clarified that at present there is no such appellate authority as per the Council's present Rules. SI. Secretary, MOC, new Delhi wanted to know as to whether the present Rules of the council provide for any appellate authority to whom an employee aggrieved by any decision taken by the Secretariat may apply for redressal of his grievances. It was clarified that at present there is no such appellate authority as per the Council's present Rules. However, the Committee of Administration in future should consider a suitable provision for having a Appellate Authority which is higher than the Appointing Authority and the same can be incorporated in the service rules of the Council in future. " ( 12 ) AT this juncture the incident took a different turn. The then chairman of the Council one Mr. Satish Kumar Dhanda by his letter dated February 22, 2003 appearing at page 178 of the writ petition asked for an explanation from an Executive Director, Sukla being the respondent no. 4 as to why the relevant papers resulting the order of dismissal and the ultimate decision of order of dismissal was not placed before him before the actual order was served upon the petitioner. Mr. Dhanda in the penultimate paragraph asked Sukla to show cause why he would not be called upon to recall the order of dismissal. ( 13 ) ON February 26, 2003 Sukla gave a reply appearing at pages 180-182 of the writ petition. On perusal of this letter it seems to me that a paid employee being subordinate to the Chairman took it upon himself as a challenge to sustain the order of dismissal of the petitioner. It was contended by Sukla in the said letter that the enquiry report and the proposed punishment was placed before the Chairman and the Chairman instructed to inform the petitioner to the effect that the council proposed to dismiss him in view of the finding of the enquiry officer and to ask for his explanation on that score. Sukla also took it upon himself the responsibility with regard to the factum of dismissal. According to him he had full concurrence to the action of the secretary being the respondent no. 5 sending the letter of dismissal. ( 14 ) THE Chairman immediately replied by his letter dated March 4, 2003 appearing at pages 183-S4 of the writ petition and directed Sukla to recall the order of dismissal. According to him he had full concurrence to the action of the secretary being the respondent no. 5 sending the letter of dismissal. ( 14 ) THE Chairman immediately replied by his letter dated March 4, 2003 appearing at pages 183-S4 of the writ petition and directed Sukla to recall the order of dismissal. ( 15 ) BY his letter dated March 8, 2003 Sukla refused to recall the order of dismissal and gave his reasons therefor. ( 16 ) THE Chairman by his letter dated April 5, 2003 reminded Sukla of his earlier instruction of recall of the order of dismissal. Sukla again refused by his letter dated April 26, 2003 appearing at pages 1988-89 of the petition. The Chairman ultimately by his letter dated May 14, 2003 contended as follows:"i reiterate my order and maintain that Mr. K. K Dutta's dismissal order remains set aside and be should be allowed to join the duty immediately. In this connection please note that I will not entertain any further correspondence in this regard. You are talking of maintaining discipline in the Council etc. You must follow my instruction to maintain discipline in the Council from your end first. " ( 17 ) BY the said letter the Chairman made it clear that he would not entertain any further correspondence on that score. ( 18 ) PETITIONER approached this court again by way of this present writ petition on September 30, 2003. Before that he raised various disputes with regard to his terminal benefits as would appear from the writ petition i need not go into that question as according to me those may not be relevant herein. This court by an order dated November 10, 2003 directed exchange of affidavits. Matter came up for hearing before me and has been heard on the above mentioned dates. In course of hearing further sets of affidavits have been filed. ( 19 ) MR. Partha Sarathi Sengupta, learned counsel appearing for the petitioner has assailed the order of dismissal inter alia on the following grounds: i) Once the order of dismissal stood set aside as observed by the chairman in his letter dated May 14, 2003 the authority could not have acted on the basis of the order impugned. ii) The respondent nos. Partha Sarathi Sengupta, learned counsel appearing for the petitioner has assailed the order of dismissal inter alia on the following grounds: i) Once the order of dismissal stood set aside as observed by the chairman in his letter dated May 14, 2003 the authority could not have acted on the basis of the order impugned. ii) The respondent nos. 4 and 5 being paid employees of the council were to act on the instruction of the council, its elected representatives headed by the Chairman. Since the Chairman wanted to have the order of dismissal recalled the respondents nos. 4 and 5 could not have acted contrary thereto. iii) Looking to the incident it would appear that there might have been mistake committed by the petitioner by bonafide error of judgement as he was under the misapprehension that he was entitled to claim reimbursement of the Rajdhani fare irrespective of his travel by Kalka Mail. He by such mistaken act did not make any gain out it nor there was any attempt to do so. His past record would show that he helped the council for its development and obtained appreciation to his credit. Taking a sum total of these facts the authority should not have punished him. iv) Assuming the charge against the writ petitioner was proved the punishment awarded to him was totally disproportionate to the charges levelled and proved against him. ( 20 ) MR. Arijit Chowdhury, learned counsel appearing for the Council, its present Chairman, Sukla and Moitra being respondent nos. 2 to 5 has supported the order of dismissal inter alia on the following grounds: i) The Council is an autonomous organization. It is functioning through its Articles of Association and is not a "stage" within the meaning of Article 12 of the Constitution and as such is not amenable to writ jurisdiction. ii) The subject matter resulting the order of dismissal was out of a private employment being contractual in nature and as such it had no public law element involved warranting inference by the writ court under Article 226. iii) The charge leveled and proved against the writ petitioner would infer that the writ petitioner was a dishonest person and who knowing fully well that he did not travel by Rajdhani claimed the train fare for making personal gain not permissible under the service rules. iii) The charge leveled and proved against the writ petitioner would infer that the writ petitioner was a dishonest person and who knowing fully well that he did not travel by Rajdhani claimed the train fare for making personal gain not permissible under the service rules. Hence, the court should not interfere with the result of the said proceeding irrespective of the fact whether the writ petitioner actually got any benefit out of it and irrespective of the quantum of benefit, if any. iv) Under the Article of Association Council acts through its executive under the direct control of committee of administration. Hence the action on the part of the respondent nos. 4 and 5 were well within their scope of duty entrusted to them under the direct supervision of the committee and as such cannot be considered as an isolated fact dehors the articles. The writ petitioner was given appointment by the then secretary as would appear from his letter of appointment. His order of dismissal was also signed by the present Secretary being the respondent no. 5 and as such the same cannot he challenged on the ground that the respondent no. 5 had no authority to issue the order of dismissal. vi) Assuming the order of dismissal was issued by the respondent no. 5 unauthorisely such action stood ratified by the council in its meeting held on June 6, 2003. Hence, such action being ratified by the council cannot be assailed. ( 21 ) MR. Chowdhury lastly contended that assuming this court does not find favour with any of his submissions recorded above and is of the opinion that the proceeding was vitiated by regularity this Court should direct the council to proceed de novo from the stage of issuance of final order. ( 22 ) MR. Rudraman Bhartacharya, learned counsel appearing for Mr. Dhanda who was the Chairman at the relevant point of time has supported the writ petitioner. He has drawn my attention to clause 22 of the Articles of Association wherein it is provided that the Chairman of the Council shall ordinarily be the Chairman of the Committee of the Council and shall be responsible for the proper functioning of the Council. Relying on the said clause Mr. Bhattacharjee has contended that at the relevant point of time his client Mr. Dhanda was the supreme authority in the council. Relying on the said clause Mr. Bhattacharjee has contended that at the relevant point of time his client Mr. Dhanda was the supreme authority in the council. He further submits that assuming Mr. Dhanda was not the supreme authority he was atleast superior to respondent nos. 4 and 5 and respondent nos. 4 aria 5 were obliged to act as per his instruction. Since Mr. Dhanda was not satisfied with the punishment he initially asked for recall of the said order and ultimately observed that such punishment stood set aside. ( 23 ) PARTIES have cited the following decisions: i) AIR 1976. Supreme, Page 1766 (Regional Manager vs. Pawan kumar Duvey ). ii) AIR 1976, Supreme Court, Page 2216 (Kulchinder Singh vs. Hardayan Singh)iii) AIR 1979, Supreme Court, Page 1022 (Union of India vs. J. Ahmed ). iv) 1991. Volume-Il, Calcutta High Court Notes, Page 451 (Sri anupam Ghosh vs. Union of India and Ors.)v) AIR 1994, Supreme Court, Page 1074 (Managing Director, ecil, Hyderabad, etc. us. B. Karunakar)vi) 2003, Volume-Ill, Supreme Court Cases, Page 605 (Regional manager U. P. SRTC Si TAWAH vs. Hotilal and Anr.)vii) 2003, Volume-IV, Supreme Court Cases, Page 364 (P. C. Kakkar vs. Chairman and Managing Director, United commercial Bank)viii) 2003, Volume-IV, Calcutta High Court Notes, Page 446 (West bengal Electronics Industries Development Corporation ltd. and Ors. vs. Dr. K. K. Chakraborty and Ors. ). ix) 2003, Volume-IV, Supreme Court Cases, Page 239 (High court of Judicature of Rajasthan vs. P. P. Singh and Anr.)x) 2003, Volume-III, Supreme Court Cases, Page 70 (State of u. P. and Anr. vs. Chandrapal Singh and Anr.)xi) 2004, Volume - VIII, Supreme Court Cases, Page 218 (Regional Manager, Rajasthan State Road Transport corporation vs. Sohanlal): (i) AIR 1976, Supreme Court, Page 1766 (Regional Manager vs. Pawan Kumar Duvey): Paragraph 7 of this decision has been cited by Mr. Sengupta for the proposition that the principle of law declared by earlier precedents should be applied in the facts and circumstances of a particular case The Apex Court observed that one additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts. Sengupta for the proposition that the principle of law declared by earlier precedents should be applied in the facts and circumstances of a particular case The Apex Court observed that one additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts. ii) AIR 1976, Supreme Court, Page 2216 (Kulchinder Singh vs. Hardayan Singh) : Paragraph 11 of this decision has been cited by Mr, Chowdhury foi the proposition that where public law element is absent in a case the writ court must not interfere. The. Apex Court in the said case observed that the supplier of chalk in a Government School or Cheese to a government hospital cannot make a grievance with regard to the contractual breach in writ jurisdiction of the High Court iii) AIR 1979, Supreme Court, Page 1022 (Union of India vs. J. Ahmed) : Paragraph 11 of this decision has been relied upon by Mr. Sengupta. Here the Apex Court gave the proper meaning of the word "misconduct". The Apex Court was of the view that deficiency in attainment of higher standard or negligence becau. se of her inefficiency or error of judgment cannot be termed as "misconduct" unless there was an ill motive to make any personal gain. iv) 1991, Volume-II, Calcutta High Court Notes, Page 451 (Sri anupam Ghosh vs. Union of India and Ors.) : This decision has been cited by Mr. Chowdhury for the proposition that for a private employment the writ jurisdiction of this court cannot be invoked in absence of a public element involved therein. Paragraph 13 of this Division Bench decision of this court has been relied upon by Mr. Chowdhury. The Division bench observed that assuming the respondent authority was a state within the meaning of Article 12 since the writ petitioner's service was depending upon a private contract between the parties the termination cannot be challenged in writ jurisdiction. v) AIR 1994, Supreme Court, Page 1074 (Managing Director, ecil, Hyderabad, etc, vs. B. Karunakar, etc.): This 5 Bench decision of the Apex Court has been relied upon by Mr. Chowdhury in support of his alternative submission to the effect that in case this court is not satisfied with the impugned order it should permit the Council to start the proceeding de novo from the stage of the final order. Chowdhury in support of his alternative submission to the effect that in case this court is not satisfied with the impugned order it should permit the Council to start the proceeding de novo from the stage of the final order. vi) 2003, Volume-III, Supreme Court Cases, Page 605 (Regional manager U. P. SRTC and TAWAH vs. Hotilal, and Anr.) : paragraphs 11, 12, 13, 14, of this decision have been relied upon by Mr. Chowdhury for the proposition that when the incumbent is required to exercise higher standard of honesty and integrity and he has been charged with misconduct he should be dealt with properly and the court should not interfere with the administrative decision unless it was illogical or suffered from procedural impropriety or was shocking the conscience of the court following Wednesbury principle (1947, Vol-I, All England Law Reporter, Page 680 ). Paragraph 11 and 12 of this decision being relevant herein are quoted below:"11. The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the court would not look into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator the scope of judicial review is limited to the deficiency in decision making process and not the decision. ""12. To put it differently, unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/tribunal, there is no scope for interference. Further, to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed. "vii) 2003, Volume-IV, Supreme Court Cases, Page 364 (P. C. Kakkar vs. Chairman Si Managing Director, United commercial Bank): This case has also been cited by Mr. Chowdhury for the identical proposition referred to above. The apex Court here also observed in the same line as has been done in the case of Hotilal. "vii) 2003, Volume-IV, Supreme Court Cases, Page 364 (P. C. Kakkar vs. Chairman Si Managing Director, United commercial Bank): This case has also been cited by Mr. Chowdhury for the identical proposition referred to above. The apex Court here also observed in the same line as has been done in the case of Hotilal. viii) 2003, Volume-IV, Calcutta High Court Notes, Page 446 (West bengal Electronics Industries Development Corporation lad. and Ors. vs. Dr. K. K. Chakraborty and Ors.): This decision of the Division Bench has been relied upon by Mr. Chowdhury to support his contention on private employment. In this decision speaking from the Division Bench I observed that in case of a private employment where the service was totally governed by a contract so long the authority acted within the framework of the contract the order of termination issued in terms of the contract cannot be assailed. ix) 2003, Volume-IV, Supreme Court Cases, Page 239 (High court of Judicature of Rajasthan vs. P. P. Singh and Anr.): This decision has been cited by Mr. Chowdhury for the proposition that an unauthorized action can be ex post facto ratified and if the same is subsequently ratified the same cannot be challenged on the ground that the earlier action of the authority was unauthorized and not sustainable in law. Paragraph 42 of this decision has relied upon wherein the apex court considered its earlier judgment in the case of parameswari reported in 1973, Vol-II, Supreme Court Cases, page 543. In the said case the Apex Court observed that even it is assumed that the telegram or the letter of terminating service was in pursuance to an unauthorized resolution the subsequent ratification cured the defect and as such it was not open for challenge "on that score. x) 2003, Volume-III, Supreme Court Cases, Page 70 (State of u. P. and Anr. vs. Chandrapal Singh and Anr.) : This decision has been cited by Mr. Chowdhury for the proposition that when appointing authority, issued the order of dismissal the same is appropriate and there cannot be any challenge to the same on the ground of lack of authority. xi) 2004, Volume-VIII, Supreme Court Cases, Page 218 (Regional manager, Rajasthan State Road Transport Corporation vs. Sohanlal) : In this case the bus conductor was removed from service on the ground that his service was not required by the corporation. xi) 2004, Volume-VIII, Supreme Court Cases, Page 218 (Regional manager, Rajasthan State Road Transport Corporation vs. Sohanlal) : In this case the bus conductor was removed from service on the ground that his service was not required by the corporation. The termination was challenged before the tribunal. The tribunal found that the respondent, workmen had indulged in misconduct, which had not only laid to monetary loss to the corporation, but also the corporation lost confidence on him. The learned Single Judge refused to interfere with the order of dismissal. Before the Division bench a submission was made by the learned counsel appearing for the workman to the effect that he would not claim any back wages. Relying on such submission the order of dismissal was set aside by the Division Bench by directing his reinstatement. The Apex Court while setting aside the order of the Division Bench observed that when the Court found the punishment disproportionate to the misconduct proved the court was to record its finding to the said effect. The quantum of loss is. however, immaterial the Apex Court observed, it is less of confidence that matters. SUMMARY OF THE PRINCIPLE OF LAW DECIDED BY THE ABOVE precedents : i) The earlier precedent can only be applied to a later one after considering the facts and circumstances of that particular case. Any dissimilarity would result misapplication of such ratio. ii) If a service is guided by a private contract and the parties act upon the said contract such action cannot be challenged before the writ court even if one of the parties is amenable to writ jurisdiction by virtue of Article 12. iii) An invalid action coupled with Ex post facto ratification is not amenable to challenge as such unauthorized action stood ratified by subsequent authorized action. iv) When the appointing authority dismisses an employee such order of dismissal cannot be challenged on the ground of absence of authority. v) To come to a conclusion that the punishment is disproportionate to the charge levelled and proved against the incumbent the court is to consider the reasonableness of the said decision, infirmity in the decision making process, time to be consumed if the proceeding is permitted to start de novo (in case of a substitution of punishment by court ). v) To come to a conclusion that the punishment is disproportionate to the charge levelled and proved against the incumbent the court is to consider the reasonableness of the said decision, infirmity in the decision making process, time to be consumed if the proceeding is permitted to start de novo (in case of a substitution of punishment by court ). The court is not empowered either to appreciate the facts independent of what has been found out in enquiry nor the court is empowered to sit on appeal over the decision of the authority and come to a conclusion that the punishment is disproportionate. ( 24 ) LEGAL Proposition Raised: On the issue that the Council is not a "state" within the meaning of Article 12. Mr. Chowdhury has not seriously made any submission on that score. He has, however, made it clear that he has not given up the said point. As discussed above, on a total construction of Articles of Association, the work being carried out by the council, the principal object, it would appear that the Ministry of commerce has a deep control over the council. The government subsidies are released to the exporters by dint of recommendation from the Council. Various schemes for export propounded by the Ministry of Commerce are being implemented through instrumentality of the Council. Hence, it would not be proper for me to hold that the Council is not a "state" within the meaning Article 12 of the Constitution. From the averment made in the pleadings I am of the view that the council is a "state" within the meaning of Article 12 of the Constitution. I do not, however, wish to deliberate in detail as no such detailed argument has been made on that score before me. ( 25 ) WITH regard to private employment, both in case of Anupam Ghosh (Supra) as well as Dr. K. K. Chakraborty (Supra) the contract provided for termination without any reason by three months notice from either side or money in lieu thereof. In both cases the termination letter was issued strictly in accordance with the contract. Hence, under the Specific Relief act the same was not open, to challenge for to speak of approaching writ jurisdiction. In the instant case the writ petitioner was proceeded with departmentally. In both cases the termination letter was issued strictly in accordance with the contract. Hence, under the Specific Relief act the same was not open, to challenge for to speak of approaching writ jurisdiction. In the instant case the writ petitioner was proceeded with departmentally. There had been detailed enquiry proceeding as appears from the enquiry report running into pages and ultimately the writ petitioner was awarded punishment of dismissal from service. It would not be proper for me to refuse the writ petitioner solely on the ground that it was a private employment and this Court should not interfere in writ jurisdiction. In the case of AIR 1976,. Supreme Court, Page 2216 (Kulchinder Singh us. Hardayan Singh) (Supra) the facts were totally different and the Apex Court deprecated interference by the writ court in contractual matters. Such is not the case here. Hence, I hold that the impugned order of dismissal is open to challenge in writ jurisdiction under Article 226 of the Constitution. ( 26 ) PAST Record - Incident - Motive - Gain - Punishment : The chain of events if We consider it would appear that the person rose from the post of a petty assistant to the post of Deputy Director to his credit. The council appreciated his contribution as would appear from the resolution quoted (Supra ). There was not an iota of events atleast brought to me by the Council that during his service tenure the petitioner did anything which may be unbecoming of an employee of the Council. If that be the position why Moitra wrote last sentence of the order of dismissal is a question whose answer is not known. It would not be irrelevant for me to quote the last sentence of the letter for dismissal: There is nothing in your past records to warrant any lesser punishment. A sentence is used in a letter having great importance and the author of the said letter must have used it for a purpose otherwise it would be superfluous. When the author put the last sentence of the first paragraph it must be in his mind that there was no creditable past record which would warrant lesser punishment or there was some improper event recorded in the service record which did not deserve any sympathy from the authority. When the author put the last sentence of the first paragraph it must be in his mind that there was no creditable past record which would warrant lesser punishment or there was some improper event recorded in the service record which did not deserve any sympathy from the authority. ( 27 ) COMING back to the incident the person concerned was to move along with his ailing wife and other family members. For abundant caution he out of his own resources purchased two sets of tickets and got one cancelled just on the eve of the Journey resulting loss to a substantial extent. I am unable to find out as to what would be the quantum of gain he would achieve by doing this mischief holding a very high position in the Council. I am aware of the fact that the amount is immaterial. I am observing so to find out the reasonableness of the final decision. Purchasing two sets of ticket again taking the trouble of returning one set and thereby traveling with a lesser comfort would all be availed of by the incumbent only for a small sum, if any and that too by a person who to his credit resolution recorded in the meeting of the Council. I am unable to find out either any motive out of it or the actual gain if any. If that not be the position then what would have been the other cause. Admittedly he committed this mistake. It is not the case of the council that they detected the same and thereafter they proceeded against him. It was petitioner who informed the authority about such mistake, even after informing the authority he went on claiming the amount for rajdhani Express. That must be because of his misapprehension that he was entitled to Rajdhani fare irrespective of travel by Kalka Mail. Might be it was a mistake. Might be it was an error of judgment. Might by there was lack of proper application of mind. I am unable to term it as a 'misconduct' that would warrant dismissal from service depriving someone from bis means of livelihood and depriving his bread and butter not only for him but also for his family members depending upon him. How could I support the action of the Council on these facts as it shocks my conscience. I am unable to term it as a 'misconduct' that would warrant dismissal from service depriving someone from bis means of livelihood and depriving his bread and butter not only for him but also for his family members depending upon him. How could I support the action of the Council on these facts as it shocks my conscience. Even the ratio decided as discussed hereinbefore would not support the action on the part of the authority. ( 28 ) ON facts I do not find any reason to support the order of dismissal. The same is neither possible to be passed by a reasonable man having ordinary prudence nor can be supported by any well settled principles of law in service jurisprudence. ( 29 ) NOW conies the question that I have initially raised while delivering this judgment. This aspect of in- subordination by paid employees although not be so germane in this writ petition must be dealt with by me otherwise I would be failing in my duty. The respondent no. 4 and 5 are paid employees of the council. The Council acts through the chairman who is the supreme authority. The language of the letter written to the Chairman by the Respondent no. 4 the way the Chairman's contention was dealt with by the respondent no. 4. I do not find any appropriate word to deprecate the same, Mr. Sengupta has contended that once the order of termination stood set aside by the Chairman by his letter dated 14th May. 2003 the authority is not entitled to act upon the same. The present Chairman has come up to support the order of dismissal. He must have done so by application of his mind. He must have done so as per desire of the present committee. However, these are subsequent facts which have no relevance at all. On the relevant date when the order of dismissal was issued the concerned Chairman asked for its recall. It has been contended that the Chairman approved the same at the meeting. The relevant portion of the abstract from the minutes would show that how in a casual manner the issue was decided. It cannot be convincingly said that such abstract can be termed as proper ratification of the action of Moitra, However, I do not wish to go into this question any further. The relevant portion of the abstract from the minutes would show that how in a casual manner the issue was decided. It cannot be convincingly said that such abstract can be termed as proper ratification of the action of Moitra, However, I do not wish to go into this question any further. I find that the order of dismissal was shockingly disproportionate. I also find that the order of dismissal was passed without concurrence from the Chairman who repeatedly asked the same to be recalled. The said order of dismissal cannot stand any more. ( 30 ) IN the result, the order of dismissal dated 15th January, 2003 appearing at page 170 of the writ petition is quashed and set aside. The writ petitioner be reinstated in service forthwith with all his back wages. Mr. Chowdhury has prayed for leave to start the proceeding de novo. I leave it to the present Council to decide this aspect. I, however, make it clear that if the Council wants to proceed, they must proceed afresh from the stage of giving charge sheet. However, if the council ultimately decides to proceed afresh they must do so following the observations made by me in this judgment. Prayer for starting the proceeding de novo from the stage of issuance of the filial order is rejected in view of the fact that the entire proceeding from the initiation was vitiated by irregularity and the order impugned stood set aside and recalled by the Chairman do not warrant such prayer to be acceded to. ( 31 ) THE writ petition is disposed of accordingly. The respondent nos. 4 and 5 would personally pay cost of this application assessed at rs. 10,000/- (Rupees ten thousand only) each to the writ petitioner. ( 32 ) AT the end I wish to record my appreciation to the immense contribution made by Mr. Arijit Chowdhury, learned counsel appearing for the Council as well as Mr. Partha Sarathi Sengupta, learned counsel appearing for the petitioner in assisting me to arrive at this decision. ( 33 ) MR. Chowdhury has prayed for stay of operation of this order. The same is considered. There would be a stay of operation of this judgment and order for a period of fortnight from today, ( 34 ) URGENT xerox certified copy would be given to the parties, if applied for. writ allowed.