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2007 DIGILAW 20 (CAL)

RATAN GANGOPADHYAY v. UNION OF INDIA

2007-01-16

TAPEN SEN

body2007
T. SEN, J. ( 1 ) THE short points involved in this Writ Petition is as to whether under the Calcutta (now Kolkata) Port Trust Employees' service Regulations, 1987, the Petitioner being a Class-I Officer and being proceeded against, can take the assistance of a retired employee as his Assisting Officer during the course of departmental proceedings? ( 2 ) THE short points that are relevant for purposes of this case are that the Petitioner joined the Calcutta (now Kolkata) Port Trust on 28. 3. 1984 in the capacity of a Junior Executive Engineer which was subsequently re-designated as an Executive Engineer under the mechanical Engineering Department of the Kolkata Dock System of the said Port Trust. According to the Petitioner, he is presently working as a Container Terminal Manager w. e. f 20. 2. 1995 in the grade of a Depuy chief Mechanical Engineer. According to him, he has been awarded with various Certificates expressing appreciable performance as well as Certificates of commendation and has, to his credit and experience, about 31 years in project work. He was sent for a full-time study programme in the U. K. According to the petitioner, his experience in the aforementioned post of a Container Terminal Manager as Container terminal "in-charge" in the grade of a Deputy Chief Mechanical engineer has been more than 11 years. He became eligible for the post of Chief Mechanical Engineer but, in order to eliminate him from the zone of consideration, some adverse remarks were communicated to him on 28. 9. 2005 as after-thought and these related to the years 2002-2003; 2003-2004; and 2004-2005. In fact on 6. 2. 2004 a charge-sheet was also issued and the Departmental Proceeding was kept pending deliberately so that the Petitioner could not be considered not only because of the pendency of the departmental proceedings but also because of the adverse entries made in his Confidential Reports. ( 3 ) THE Petitioner has stated that the Respondents did not complete the process of selection and kept the matter pending. Challenging the belated adverse entries and the intentional act of stagnating the departmental proceedings as well as also challenging a notification introducing fresh criteria for the post of Chief Mechanical Engineer, the Petitioner filed a Writ Petition being W. P. No. 2043 of 2005. The said Writ Petition was disposed of on 23. 11. Challenging the belated adverse entries and the intentional act of stagnating the departmental proceedings as well as also challenging a notification introducing fresh criteria for the post of Chief Mechanical Engineer, the Petitioner filed a Writ Petition being W. P. No. 2043 of 2005. The said Writ Petition was disposed of on 23. 11. 2005 with a direction, inter alia to conclude the proceedings as early as possible and preferably, within a period of 6 (six) months from the date passing of the said Order. It is evident upon a perusal of the said Order, that the Respondents had made a statement before the Court to the effect that they would consider the case of the Petitioner for recruitment in terms of the Notification. So far as the adverse entries were concerned, the Chairman of the Kolkata Port Trust (hereinafter referred to for the sake of brevity as the KPT) was directed to consider the representation of the petitioner after giving an opportunity of hearing to him. The Order dated 23. 11. 2005 is annexure P-3, appended to the Writ Petition. ( 4 ) IT is stated that thereafter the Chairman of the KPT considered the representation of the Petitioner and, by an Order dated 20. 12. 2005 (as stated in Paragraph 10), finally held that the adverse entries were baseless and that the Reporting Officer had made comments without at all going into the merits of the allegations and in any event, those comments were all general in nature. ( 5 ) THE other statements made in the Writ Petition are not necessary because extensive arguments have been made only on the question framed above. In that view of the matter, Paragraphs 16 to 20 of the writ Petition are worth considering. 1]. In Paragraph 16 it has been stated that this Court had directed the Respondent-authorities to complete the disciplinary proceedings within 6 months from the date of Order. e. 23. 11. 2005 but in the enquiry proceedings, the petitioner was victimized in relation to the rules relating to departmental proceedings of the employees of the KPT. It has been submitted that the petitioner being an employee of the said kpt is entitled to take assistance by engaging another employee or a retired employee of the KPT subject to the condition that such Assisting officer has not, with him, two pending disciplinary cases at the material time. It has been submitted that the petitioner being an employee of the said kpt is entitled to take assistance by engaging another employee or a retired employee of the KPT subject to the condition that such Assisting officer has not, with him, two pending disciplinary cases at the material time. These Rules will be dealt with in the later paragraphs. 2]. In Paragraph 17 it has been stated that right from the first day of the Enquiry [which started on 23. 09. 2005,. e. after more than 1 (one) year and 7 (seven) months from the date of issuance of the charge sheet,. e. 06. 02. 2004], the Petitioner had been requesting the Respondents that he be allowed the assistance of an Assisting Officer of his choice, viz. a retired employee of the KPT. By his letter dated 21. 10. 2005/29. 11. 2005 addressed to the Enquiry Officer the Petitioner applied for being allowed the assistance of a retired employee but his prayer was turned down by the Enquiry Officer vide his Communication/order dated 13. 02. 2006 as contained in annexure-7 whereby and whereunder, he informed the Petitioner that on the basis of a clarification obtained from the "appropriate authority" in terms of Regulation 26 of Kolkata Port trust Employees' (C. Canda) Regulations, 1987, his prayer for engaging a retired KPT Officer as his Assisting Officer, cannot be acceded to. 3]. Regulation 26 inter alia provides that "where a doubt arises as to the interpretation of any of the provisions of these regulations the matter shall be referred to the Chairman who shall decide the same. " it appears that acting on the basis of Regulation 26, the "appropriate authority" made the following observations which were included in the aforementioned communication of the Enquiry Officer: 4]. Now in paragraph 18 it has been stated that that the aforesaid communication/order of the Enquiry Officer dated 13. 02. 2006 is totally perverse, malafide, illegal and discriminatory and therefore, the same is liable to be set aside. The petitioner has also stated that by denying such assistance, the Respondents have acted in a discriminatory manner as a host of other disciplinary proceedings were held previously and some are going on even today in which the Assisting Officers were/are retired officers of the KPT. The petitioner has also stated that by denying such assistance, the Respondents have acted in a discriminatory manner as a host of other disciplinary proceedings were held previously and some are going on even today in which the Assisting Officers were/are retired officers of the KPT. The Petitioner has also furnished a list of some of the names of other charge-sheeted officers and the retired officers of KPT who had/have/are acted/acting as their Assisting officers. These details are given below in a tabulated form as follows: Sl . No. Name of the Delinquest Officer Name of the Assessing Officer 1. Shri A. K. Biswas , CME. Shri A. K. Banerjee , retired Deputy Chief Mechanical Engineer of KOPT. 2. Shri S. R. Biswas , G. M. (Operations), Haldia Dock Complex of Kolkata Port Trust 3. Shri R. S. Datta , Sr. Ex. Engg. of Kolkata Port Trust 4. Shri Pradeep Sarkar , Sr. Accounts Officer 5. Shri Somnath Chakrabarty , retired Supdt. New Construction Cell of the Marine Department of Kolkata Port Trust is facing a charge sheet proceedings now. Shri B. Sengupta retired Financial Adviser & Chie; Accounts Officer. Now Late P. L. Nag, retiree Senior Deputy Materials Manager. Shri B. Sengupta , retired Financial Adviser & Chief Accounts Officer. Shri Amal Chakraborty , retiree Director (Planning & Research of Kolkata Port Trust and subsequently retired again as the Managing Director of the Indian Ports Association, New Delhi (an apex body of all major ports of India) is working now working as an Assisting Officer. 6. Shri G. M. Sen , C. M. E. Now Late P. L. Nag, retired Senior Deputy Materials Manager. 7. Shri D. N. Chakarbarty , Chief Materials Manager Shri AK . Banerjee , retired Deputy Chief Mechanical Engineer. 5]. In Paragraph 19, the Petitioner has stated that the practice of taking the assistance of retired employees as Assisting Officers in disciplinary proceedings by Class I or Class II Officers in the KPT, has been a long accepted convention and that all charged Officers have been allowed to take the assistance of retired officers as their Assisting officers for their defence in previously held or currently continuing disciplinary proceedings. According to the Petitioner, there has been a hostile discrimination against him for the first time in this Port and the Respondents have made a departure in the case of the Petitioner from their established norms, practice and in interpreting Rule 8 (9) of the Kolkata Port Trust Employees' (Classification, Control and Appeal) regulations, 1987. Consequently, the Petitioner has stated that their act in denying such assistance to the Petitioner is malafide and capricious. 6]. In Paragraph 20 it has been stated that the KPT authorities have adopted a step-motherly treatment as against the Petitioner and that equals have been treated unequally. When similarly situated and classified Officers such as the ones named above have been favoured by allowing them to take the assistance of retired persons, the chairman and/or other Respondents have discriminated as against the Petitioner to his prejudice and have thereby violated the provisions of Article 14 of the Constitution of India. ( 6 ) IT appears that the Petitioner had filed another Writ Petition bearing W. P. No. 5216 (W) of 2006 and an Order was passed thereon directing the Chairman to consider his prayer for appointment of a defence Assistant from amongst the retired employees of the KPT on the basis of the examples cited by the Petitioner and the departmental proceedings were Ordered to be stayed till decision in that regard was not taken by the Chairman. The Order of this Court has been brought on record vide annexure P-8 and the same reads as follows: 30 15. 03. 2006 W. P. 5216 (W) of 2006 Mr. Kamalesh Bhattacharjee Mr. Rajib Chatterjee. . . For the Petitioner Mr. Malay Bose . . . . . . . . . . . . . For the Respondent Let affidavit-in-opposition be filed within six weeks, reply, if any, be filed within four weeks thereafter. Let the matter appear in the monthly combined list of July, 2006. The Chairman, Calcutta Port Trust, is however directed to consider the prayer of the writ petitioner for appointment of defence assistant from among the retired employees of the Port Trust on the basis of the examples cited by him in paragraph 52 page 60-61 of the writ petition. Such decision must be had within two weeks from the date. The appointment in the post of Chief Mechanical Engineer would abide by the result of the writ petition. Such decision must be had within two weeks from the date. The appointment in the post of Chief Mechanical Engineer would abide by the result of the writ petition. The respondent authorities, however, is directed not to proceed with the proceeding unless a decision is arrived at by the Chairman, Calcutta Port Trust. Urgent xerox certified copy of this order, if applied for, be given to the parties. (Ashim Kumar Banerjee , J.) ( 7 ) IT is evident that pursuant to the aforementioned direction of this court, the Deputy Secretary-II of the KPT, sent a letter dated 29. 3. 2006 addressed to the Petitioner wherein he enclosed a copy of the Order passed by the Chairman on the same day and rejecting his prayer to allow him to engage a retired person to act as a Defence Assistant. ( 8 ) THAT Order is under challenge in this Writ Petition. Upon a perusal of the said Order passed by the Chairman, the fact relating to other proceedings which were held either previously or were going on, has not been denied but the same has not been considered to be ground for extending similar benefit to the Petitioner on the ground that even if retired Employees had been allowed to act as Defence Assistants, even then, it was so done with the approval of the concerned Enquiry officer and not with the approval of the Chairman. It was in that background that the plea of discrimination was rejected. It is also evident that the Chairman interpreted Regulation 8 (9) of the Calcutta port Trust Employees' Service Regulations in terms of the language used therein and the relevant portion thereof reads as follows: 8. Procedure for imposing major penalties - (9) The employee may take the assistance of any other employee (hereinafter called the Assisting Officer) to assist him, in his case but may not engage a legal practitioner for the purpose provided, however, that an employee holding a Class III or Class IV post may engage as his Assisting Officer, if he so desires, any representative of a Labour Union, who is himself an employee or retired employee of the Board. However, the employee shall not take the assistance of any other employee or retired employee of the Board, who has two pending disciplinary cases on hand in which he has to give assistance. However, the employee shall not take the assistance of any other employee or retired employee of the Board, who has two pending disciplinary cases on hand in which he has to give assistance. ( 9 ) THIS Court has carefully gone through the Order of the Chairman dated 29. 3. 2006. From a perusal of the said Order it is evident that the chairman has proceeded to interpret the aforementioned Regulations as if it is only the Class-Ill and IV employees who can take the assistance of retired employees. The observations of the Chairman in this regard are therefore, necessary to be quoted: "on perusal of the Regulation, it appears that Class I/ii Officers are not entitled to take assistance of retired employees as Assisting officers' whereas in case of Class III/iv employees they have been conferred with such right. There is no ambiguity in the Rules. The rule is clear in itself. Class I/ii employees have no right to engage retired employees as 'assisting Officers' under the Rules. Under the circumstances, I reiterate that there is no provision for engaging retired employees of Kopt in respect of Class I/ii officer to act as Defence Assistants in the relevant provision of CPT employees' (CCA) Regulations, 1987 and the precedence cited by the writ petitioner were allowed by the concerned Enquiring Officer at the materials point of time without seeking clarification from the respective chairman of the Kolkata Port Trust. " ( 10 ) IN order to ascertain as to whether the Chairman's interpretation is correct or not, Regulation 8 (9) has to be once again looked into. For purposes of convenience, this Regulation can be split up in parts in the following manner: (9) The employee may take the assistance of any other employee (hereinafter called the Assisting Officer) to assist him, in his case but may not engage a legal practitioner for the purpose provided, however, that an employee holding a Class III or Class IV post may engage as his Assisting Officer, if he so desires, any representative of a Labour union, who is himself an employee or retired employee of the Board. However, the employee shall not take the assistance of any other employee or retired employee of the Board, who has two pending disciplinary cases on hand in which he has to give assistance. However, the employee shall not take the assistance of any other employee or retired employee of the Board, who has two pending disciplinary cases on hand in which he has to give assistance. ( 11 ) THUS upon a perusal of the aforementioned Regulations 8 (9) it is evident that the prerogative to engage a retired employee is conferred exclusively on Class III and IV Employees only. So far as other employees are concerned and which includes Class I and Class II Officers, there is no such enabling provision conferring similar liberty upon them. ( 12 ) IN an application under Article 226 exercising powers of Judicial review, the High Court cannot enlarge a Statute nor can it proceed to fill up the blanks and confer something upon a person which has not been specifically given under the provisions of the Statute. ( 13 ) IN a similar case of Food Corporation of India v. Bant Singh and Anr. , jt 1997 (6) SC 447, it was held that a direction given by the High Court to allow the assistance of a retired employee was erroneous. In that case, Rule 58 (8) of the Food Corporation of India Staff Regulations was taken into consideration by their Lordships and the same is almost similar to Regulation 8 (9) of the Kolkata Port Trust Employees' Service regulation. Rule 58 (8) of the FCI Staff Regulations has been incorporated in the Judgment of the Hon'ble Supreme Court. It reads thus: "58 (8) The employee may take the assistant of any other employee of the Corporation or any State or Central Government employee to present the case on his behalf, but may not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the Disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits. " Now in Bant Singh's case, the delinquent had requested that he be allowed to take the assistance of a retired employee as a Defence assistant in the enquiry. The Enquiry Officer rejected that prayer but the Hon'ble Punjab and Haryana High Court allowed the Writ Petition filed subsequently with a direction to the Corporation to allow Bant Singh to engage a retired employee as his Defence Assistant. The Enquiry Officer rejected that prayer but the Hon'ble Punjab and Haryana High Court allowed the Writ Petition filed subsequently with a direction to the Corporation to allow Bant Singh to engage a retired employee as his Defence Assistant. Now in para 4 of Bant Singh's case supra, their Lordships while interpreting Regulation 58 (8) above, have observed in paras 4 and 5 as follows: 4. A reading thereof would clearly indicate that an employee is entitled to an opportunity to defend himself either in person or through an employee of the Corporation or of the Central government or the State Government employee, in the departmental enquiry conducted against the delinquent. A legal practitioner is prohibited to appear before the Disciplinary Authority. Under these circumstances, a direction given by the High Court to allow the respondent to take the assistance of a retired employee, though he is not a legal practitioner who is prohibited to appear and assist the delinquent, in reality amounts to permitting the retired employee to have regular practice. The High Court has committed an error in giving such a direction. 5. However, it is stated that pursuant to the direction given by the High Court, the assistance of a retired employee was already given and the enquiry was completed. If that is so, the enquiry need not be reopened. In the above facts and circumstances of the case, we do not want to interfere with the directions given by the High Court. " 1]. Consequently, although the assistance that the Petitioner wants in this case may not be that of a legal practitioner which is prohibited for all employees other than Clause III or Class IV employees, he nevertheless wants the assistance of a retired employee. Following the Hon'ble Supreme Court's observations, this Court is unable to give any direction to the KPT to allow the Petitioner to engage a retired employee as is Defence Assistant. ( 14 ) FOR the forgoing reasons, this Court is of the view that the chairman's interpretation cannot be said to be at fault. Following the Hon'ble Supreme Court's observations, this Court is unable to give any direction to the KPT to allow the Petitioner to engage a retired employee as is Defence Assistant. ( 14 ) FOR the forgoing reasons, this Court is of the view that the chairman's interpretation cannot be said to be at fault. So far as the instances cited by the Petitioner are concerned, this Court is of the view that it is unfortunate that the Respondents have acted contrary to the Regulations but for such an illegality and/or having acted contrary to the Statutes/regulations, the Petitioner cannot be allowed to say that since irregularities have been committed in favour of one group of individuals, the same should be extended to him also. Reference in this context may be made to the case of Gursharan Singh and Ors. v. New Delhi Municipal Committee and Ors. , AIR 1996 SC 1175 . Paragraph 9 of the said Judgment reads as follows: "apart from that even if it is assumed that concession was shown to such stall-holders by the N. D. M. C. the appellants cannot make grievance in respect of discrimination under Article 14 of the constitution. Having agreed to the terms of allotment they cannot legitimately claim that they should also be treated in the same manner. There appears to be some confusion in respect of the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. This guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or Court in a negative manner. To put it in other words, if an illegality or Irregularity has been committed in favour of any individual or a group of individuals, the others cannot invoke the jurisdiction of the High Court or of this court, that the same irregularity or illegality be committed by the state or an authority which can be held to be a State within the meaning of Article 12 of the Constitution, so far such petitioners are concerned, on the reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner. Such petitioners can question the validity of orders which are said to have been passed in favour of persons who were not entitled to the same, but they cannot claim orders which are sanctioned by law in their favour on Principles of equality before law. Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before the law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination. None of the 98 stall holders were impleaded as parties to the writ petitions. The appellants questioned the validity of the allotment of 98 shops on concessional rates, without trade zoning restrictions in favour of the stall-holders of Panchkuian Road, but they were primarily interested that same concessions in respect of licence fee and relaxation in trade zoning restrictions, be also extended to them. Any such claim on their behalf cannot be entertained on the basis of concept of equality before law as enshrined in Article 14 of the Constitution. " ( 15 ) FOR the forgoing reasons, no Writ of Mandamus can be issued. Consequently the question framed above is answered in the negative by holding that under the Kolkata Port Trust Employees' Service regulations, a delinquent Class I/ii Officer cannot take the assistance of a retired Employee as an Assisting Officer during course of departmental Proceedings. This Writ Petition must therefore fail. It is accordingly dismissed. However, in the facts and circumstances of this case, there will be no order as to costs. Writ petition fails.