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2006 DIGILAW 784 (CAL)

HIRENDRA NATH HALDER v. UNION OF INDIA

2006-12-12

DEBASISH KAR GUPTA

body2006
( 1 ) THE petitioner files this application under Article 226 of the Constitution of India praying for setting aside the charge-sheet dated October 31, 2000, enquiry report dated September 7, 2002, the final order dated October 10, 2002 as also the order dated May 13, 2003 passed by the appellate authority. ( 2 ) THE fact of the case is this the petitioner was a constable of industrial Security Force. While he was posted at Farakka Barrage Project, farakka in the District of Murshidabad a charge-sheet dated October 31, 2000 was served upon him. The charges levelled against the petitioner on the basis of the above charge-sheet were that while he was on duty at mechanical stores at Farakka Barrage Project Workshops on September 5, 2000, a theft took place at his place of duty due to his gross negligence. The second charge was that he was habitual offender for which he had previously earned punishments on seven occasions. The petitioner submitted a representation dated February 11, 2002 to the Enquiry Officer for supply of certain documentary evidences. But the Enquiry Officer refused to supply him those records. Subsequently, the petitioner submitted a representation dated February 23, 2002 to the disciplinary authority for change of the enquiry Officer, the disciplinary authority as per his communication dated march 10, 2002 rejected such prayer. When the enquiry proceeding was in progress, the prosecution witness No. 7, A. S. I. , B. V. V. Satyanarayana submitted a representation to the disciplinary authority raising a complain against the Enquiry Officer with regard to recording of evidences. The petitioner further filed a written defence statement dated August 19, 2002 to the Enquiry Officer. Then the Enquiry Officer submitted his report dated september 7, 2002 to the disciplinary authority a copy of which was sent to the petitioner giving an opportunity to him to submit representation. The petitioner submitted his representation dated October 4, 2002 to the above enquiry report. Then the disciplinary authority passed the final order dated october 10, 2002 in the matter removing the petitioner from the service. The petitioner preferred an appeal dated October 10, 2002 against the final order of dismissal passed by the disciplinary authority against him before the appellate authority. The appellate authority as per order dated May 13, 2003 rejected the appeal of the petitioner. Hence this writ application. ( 3 ) MR. The petitioner preferred an appeal dated October 10, 2002 against the final order of dismissal passed by the disciplinary authority against him before the appellate authority. The appellate authority as per order dated May 13, 2003 rejected the appeal of the petitioner. Hence this writ application. ( 3 ) MR. Achin Majumder, learned Advocate appearing on behalf of the petitioner submits that the charge-sheet was issued against the petitioner with closed mind because in the charge-sheet it was stated that it was established that the petitioner was a habitual indiscipline incorrigible member of the force, the offence committed by the petitioner amounted to gross misconduct and there was no mark of improvement on the part of the petitioner for performance of security duty/discipline. The second submission of Mr. Majumder is this the list of documents and list of witnesses relating to the first charge was not supplied to the petitioner. The charge-sheet is liable to be set aside on the above two grounds. The next submission of Mr. Majumder is this though there was a representation of the petitioner to change the Enquiry Officer, no step was taken to that effect. Further the prosecution witnesses No. 7 also raised a complain regarding the transparency of the procedure followed in course of enquiry proceeding but the disciplinary authority did not pay any hit to the same. Mr. Majumdar submits that the enquiry report is liable to be set aside on another ground that the relevant documents relied upon by the Enquiry Officer in preparing the enquiry report were not supplied to the petitioner. Mr. Majumder further submits that the Enquiry Officer allowed four additional witnesses and took into consideration additional documents without furnishing the list of the same to the petitioner. And as such the enquiry report is liable to be set aside. Mr. Majumder frther submits that though all the aforesaid irregularities were mentioned in the reply to the enquiry report, the disciplinary authority did not take into consideration those factors while imposing the punishment upon the petitioner by passing the impugned order of punishment dated october 10, 2002. As such the same is liable to be set aside. With regard to the order passed by the appellate authority, Mr. Majumder submits that the same is a non-speaking order as such the same is liable to be dismissed. ( 4 ) MR. As such the same is liable to be set aside. With regard to the order passed by the appellate authority, Mr. Majumder submits that the same is a non-speaking order as such the same is liable to be dismissed. ( 4 ) MR. Majumder, learned Advocate appearing on behalf of the petitioner relied upon the decisions of Surendra Chandra Das v. State of west Bengal and Ors. , reported in (1981)3 SLR 737, Bimala Kanta Mukherjee v. State of West Bengal and Ors. , reported in (1980)2 Cal HN 35, Kumaon mandal Vikas Nigam Ltd. v. Girja Shankar Pant and Ors. , reported in AIR 2001 SC 24 and Makar Dhwaja Das v. Union of India and Ors. , reported in (2002)4 SLR 745 to submit that when the charge-sheet is issued with pre-determined mind the same is liable to be dismissed. Mr. Majumder relied upon the decisions of State of U. P. v. Basisth Narain Singh and Anr. , reported in (1973)2 SLR 297, South Bengal State Transport Corporation and Ors. v. Jahar Goswami reported in (2000)1 SLR 157 and Eastern Coalfields Ltd. and ors. v. Amaresh Roy and Ors. , reported in (2000)3 SLR 2002 to submit that in a disciplinary proceeding if the list of documents and list of witnesses relating to the charges levelled in the charge-sheet are not supplied to the delinquent employee. The entire enquiry proceeding vitiates on the ground of violation of Article 14 with regard to the prayer for changing of Enquiry Officer. Mr. Majumder relied upon the decision of Ranjit Thakur v. Union of India and ors. , reported in AIR 1987 SC 2386 . Mr. Majumder further relied upon the decision of Anandram Jiandrai Vaswani v. Union of India andors. , reported in (1982)1 Cal LJ 8 to submit that the prayer for supply of document of the petitioner was rejected without assigning any reason. As such action cannot be sustained in law. Mr. Majumder also relied the decisions of Union of India and Ors. v. Inder Nath reported in (1978)1 SLR 1, Committee of Management, kishan Degree College v. Shambhu Saran Pandey and Ors. , reported in (1995)1 SCC 404 , Ministry of Finance and Anr. v. S. B. Ramesh reported in air 1998 SC 853 and Kuldeep Singh v. Commissioner of Police and Ors. v. Inder Nath reported in (1978)1 SLR 1, Committee of Management, kishan Degree College v. Shambhu Saran Pandey and Ors. , reported in (1995)1 SCC 404 , Ministry of Finance and Anr. v. S. B. Ramesh reported in air 1998 SC 853 and Kuldeep Singh v. Commissioner of Police and Ors. reported in (1999)2 SCC 10 to submit that adducing evidences of additional witnesses and relying some documents without furnishing the list thereof cannot be sustained in law and the enquiry proceeding in question vitiates on that ground alone. Mr. Majumder further relied upon the decisions of nand Kishore Prasad v. The State of Bihar and Ors. , reported in (1978)2 SLR 46 and Ananda Chakravorty v. Union of India and Ors. , reported in (1987)1 cal LJ 467 and submits that the appellate authority was under obligation to pass a reasoned order. Since it was not done in the case of the petitioner. The order of the appellate authority is liable to be set aside. ( 5 ) APPEARING on behalf of the respondent authority Mr. Pradip Kumar sen, learned Advocate submits that the petitioner had suffered from seven punishments on earlier occasions and the next incident for which disciplinary proceeding in question was initiated proved that the petitioner had failed to improve his performance. So the validity of the charge-sheet cannot be questioned on the ground of biasness of the disciplinary authority. With regard to the supply of list of documents Mr. Sen submits that the second charge related to the punishment imposed upon the petitioner on seven earlier occasions. Therefore, no document need be furnished him with regard to the second charge. With regard to the representation for changing of Enquiry officer, Mr. Sen submits that in course of enquiry proceeding the prosecution witness No. 7 did not raise any objection. Therefore, no weightage could be given to the subsequent objection raised by him. With regard to the supply of relevant documents, Mr. Sen submits that those documents were not relevant for the purpose of enquiry proceeding nor any of those documents was relied upon in the proceeding. With regard to adducing evidences of four additional witnesses and considering the additional documents without furnishing the list of the same to the petitioner, Mr. Sen submits that the petitioner participated in the enquiry proceeding and this was permissible. With regard to the validity of the impugned order Mr. With regard to adducing evidences of four additional witnesses and considering the additional documents without furnishing the list of the same to the petitioner, Mr. Sen submits that the petitioner participated in the enquiry proceeding and this was permissible. With regard to the validity of the impugned order Mr. Sen submits that the disciplinary authority passed that the order after taking into consideration the enquiry report, the representation of the petitioner and other documents. As such that is the validity in the eye of law. With regard to the order of the appellate authority Mr. Sen submits that the same was passed by the disciplinary authority following the procedure in accordance with law and taking into consideration the grounds for appeal. As such the same is also valid in the eye of law. According to Mr. Sen the writ application is liable to be dismissed. ( 6 ) MR. Sen relies upon the decision of Union of India v. Himmat singh Chahar reported in AIR 1999 SO 1980 and submits that the enquiry officer arrived at a decision in this case on the basis of the evidences adduced by the witnesses and our appreciation of such evidences in course of judicial review is not permissible. Mr. Sen further relied upon the decision of Depot manager. A. P. S. R. T. C. v. P. Basha and Anr. reported in (1999)9 SCC 190 to submit that it is not within the scope of the judicial review for a Court sitting in writ jurisdiction to reduce the punishment of an employee against whom an order of dismissal. Mr. Sen also relied upon the decision of R. S. Saini v. State of Punjab and Ors. , reported in (1999)8 SCC 90 to submit that in the event there is some evidence to reasonable support finding of enquiry authority, the Court in exercise of its writ jurisdiction will not reverse the finding on the ground of insufficiency of evidence. ( 7 ) I have heard the learned Counsels for the respective parties and i have given my anxious consideration to the materials on record. ( 8 ) FIRST of all I have to examine as to whether the charge-sheet dated October 31, 2000 was issued against the petitioner with a closed mind. ( 7 ) I have heard the learned Counsels for the respective parties and i have given my anxious consideration to the materials on record. ( 8 ) FIRST of all I have to examine as to whether the charge-sheet dated October 31, 2000 was issued against the petitioner with a closed mind. I find from the aforesaid charge-sheet that the disciplinary authority arrived at a positive and firm view that it was established that the petitioner was a habitual indisciplined and incorrigible member of the force and there was no mark of improvement on the part of the petitioner for performance of security duties. From the above language it appears to me that the disciplinary authority had really drawn a positive conclusion against the petitioner and thereafter started a disciplinary proceeding by issuing the charge-sheet in question only to afford him an opportunity to dispel the conclusion drawn against him. ( 9 ) IN this regard the law is well settled now. The relevant portion of the case of S. C. Das v. State of West Bengal (supra) are quoted below : -"5. After giving my anxious consideration to the submissions of the respective Counsels on this aspect, it appears to me that whether a charge-sheet has been issued with a closed mind or not cannot always be decided by a mere reference to the charge-sheet itself. The language used in the charge-sheet certainly renders a very important indication in the matter but other attending circumstances may at times throw light on the real intent and import of the charge-sheet. It is true that the charges levelled against a delinquent officer must be clear and inambiguous, but at the same time the charge-sheet should not be issued with a biased and closed mind. The real purpose of initiating a disciplinary proceeding is to enquire as to whether the facts, prima facie ascertained against a delinquent officer are correct or not. The purpose of a disciplinary proceeding cannot be to cause a secret enquiry against a delinquent officer and to form a positive and firm view about his complicity in the alleged misconduct and thereafter to give him an opportunity to dispel the conclusion already drawn against him. If therefore from the attending circumstances and also from the language of the charge-sheet. If therefore from the attending circumstances and also from the language of the charge-sheet. It appears that the disciplinary authority has really drawn a positive conclusion against a delinquent officer and thereafter has started a disciplinary proceeding by issuing a charge-sheet only to afford him an opportunity to dispel the conclusion drawn against him, then such disciplinary proceeding must be held to be bad, being vitiated by bias and a closed mind and having been all intents and purposes to started complete a formality in law. " ( 10 ) IN view of the above, the charge-sheet dated October 31, 2000 is liable to be set aside. ( 11 ) FROM the enquiry report dated September 7, 2002 of the Enquiry officer, I find that the enquiry officer examined seven prosecution witnesses out of which names of four witnesses were not included in the list of witnesses. The enquiry officer relied upon documents, i. e. theft report in godown No. (38yz) in mechanical stores dated 05. 09. 2000, 08. 09. 2000 submitted by Asst. Engineer Electrical FBP (P. W. 5) Extb-16, 17 and 18, verification report along with details of theft materials dated 13. 09. 2000, 19. 09. 2000, 30. 09. 2000/03. 10. 2000 and F. I. R report in godown Nos. 13 and 22 submitted by executive Engineer (Stores Division) to police station, farakka (P. W. 6) Exbt. Nos. 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28. But none of the above documents was included in the list of document supplied to the petitioner. ( 12 ) IN this regard the relevant portions of the decision of Kashinath dikshita v. Union of India reported in AIR 1986 SC 2118 are quoted below : "10. And such a stance was adopted in relation to an inquiry where as many as 38 witnesses were examined, and 112 documents running into hundreds of pages were produced to substantiate the charges. In the facts and circumstances of the case we find it impossible to hold that the appellant was afforded reasonable opportunity to meet the charges levelled against him. Whether or not refusal to supply copies of documents or statements has resulted in prejudice to the employee facing the departmental inquiry depends on the facts of each case. In the facts and circumstances of the case we find it impossible to hold that the appellant was afforded reasonable opportunity to meet the charges levelled against him. Whether or not refusal to supply copies of documents or statements has resulted in prejudice to the employee facing the departmental inquiry depends on the facts of each case. We are not prepared to accede to the submission urged on behalf of the respondents that there was no prejudice caused to the appellant, in the facts and circumstances of this case. The appellant in his affidavit page 309 of the SLP paper book has set out in a tabular from running into twelve pages as to how he has been prejudiced in regard to his defence on account of the non-supply of the copies of the documents. We do not consider it necessary to burden the record by reproducing the said statement. The respondents have not been able to satisfy us that no prejudice was occasioned to the appellant. 11. Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he would have needed the copies of the documents. So also he would have need the copies of the documents to enable him to effectively cross-examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself. We do not consider it necessary to quote extensively from the authorities cited on behalf of the parties, beyond making passing reference to some of the citations, for, whether or not there has been a denial to afford a reasonable opportunity in the backdrop of this case must substantially depend upon the facts pertaining to this matter. We do not consider it necessary to quote extensively from the authorities cited on behalf of the parties, beyond making passing reference to some of the citations, for, whether or not there has been a denial to afford a reasonable opportunity in the backdrop of this case must substantially depend upon the facts pertaining to this matter. " ( 13 ) ON the basis of the above admitted facts I have no hesitation to come to a conclusion that the enquiry proceeding under challenge cannot be sustain in law. With regard to the impugned order of punishment dated october 10, 2002, I find that the disciplinary authority arrived at his conclusion on the basis of the enquiry report dated September 7, 2002. But nothing appears from the impugned order of punishment dated October 10,2002 to show that the disciplinary authority applied his mind on the representation dated October 4, 2002 of the petitioner which was submitted by him on receipt of the enquiry report raising the question of procedural irregularities of the enquiry proceeding. I have already come to a conclusion that the enquiry proceeding under challenge cannot be sustained in law due to procedural irregularities. So, the impugned order of punishment dated october 10, 2002 is also liable to be set aside on the basis of the above admitted facts. ( 14 ) REGARDING the order dated May 13, 2003 passed by the appellant authority, I find that the appellate authority recorded all the grounds set forth in the appeal in respect of the procedural irregularities. But the appellate authority did not assign any reason in the above order for rejecting those grounds. As such the same cannot be sustained in law. ( 15 ) WITH regard to the decision of Union of India v. Himmat Singh chahar (supra) as relied upon by Mr. P. K. Sen, in my view, the above decision has no manner of application in this case. In the above decision it was held that re-appreciation of evidence is not permissible in course of judicial review by invoking jurisdiction under Article 226 of the Constitution of India. I have not decided this case by re-appreciation of the evidences adduced before the Enquiry Officer. With regard to the decision of Depot Manager. A. P. S. R. T. C. v. Basha and Anr. I have not decided this case by re-appreciation of the evidences adduced before the Enquiry Officer. With regard to the decision of Depot Manager. A. P. S. R. T. C. v. Basha and Anr. (supra), it was held in this case that once the High court comes to a conclusion that the punishment imposed upon the delinquent employee was disproportionate to the misconduct, it was necessary for the High Court discussed what, in its view, was an appropriate punishment. I do not think that this decision has any manner of application in this case. The other decision relied upon by Mr. Sen namely, R. S. Saini v. State of Punjab and Ors. (supra), in my opinion, has no manner of application in this case because in that case the grievance of the delinquent employee was that he was not given sufficient adjournments for further hearing. On the basis of such grievance it was held that there was no violation of natural justice. ( 16 ) IN view of the above the charge-sheet dated October 31, 2002, report of the Enquiry Officer dated September 7, 2002 the final order of punishment dated October 10, 2002 and the order passed by the appellate authority dated May 13, 2003 are quashed and set aside. ( 17 ) THERE will be, however, no order as to costs.