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2009 DIGILAW 250 (CAL)

Barrackpore Municipality v. Shibendra Narayan Roy

2009-03-24

D.P.SENGUPTA, DEBASISH KAR GUPTA

body2009
Judgment : DEBIPRASAD SENGUPTA, J. (1) This appeal is directed against the judgment and order dated 13th May, 2002 passed by the learned Single Judge in W. P. No. 23851 (W) of 1998. (2) The writ petitioner / respondent was chargesheeted by the Municipality on 17th August, 1998 for alleged defalcation of amount of Rs.57,237=00 and an amount of Rs.53,176=00. It was alleged that although the writ petitioner / respondent received from the Municipality an amount of Rs.3,88,346=00 for disbursement of the pecuniary benefit to the legal heirs of Late Rashmoni Hari, an ex-employee of the Municipality, he neither disbursed the amount of Rs.53,176=00 nor deposited the same with the Municipality. It was further detected that another amount of Rs.57,237=00 was not disbursed and was kept in his custody. By two different orders dated 29.6.1998 and 13.7.1998 the writ petitioner / respondent was directed to show cause as to why disciplinary action should not be taken against him. The writ petitioner / respondent gave replies to such show cause notices, in which he admitted his guilt. The respondent authorities, not being satisfied with the reply to show cause, dismissed the writ petitioner / respondent from service by an order dated 21st September, 1998. (3) An appeal was preferred before the appellate authority and the same was also dismissed by order dated 18.12.1998. The writ petitioner / respondent challenged the order of punishment in the writ petition on the ground that no disciplinary proceeding was ever initiated by the Municipal Authority and no opportunity was given to him to defend his case. (4) The learned Trial Judge while disposing of the writ petition passed the following order : "Considering the aforesaid facts and circumstances and considering the fact that there had been some explanation offered by the writ petitioner which were not considered by the municipality, I modify the order of punishment to the effect that the writ petitioner would be treated to have retired compulsorily as on 21st September, 1998. He would be entitled to 25% of his wages as on that date to be calculated and paid to him taking into account his full service tenure that he could otherwise enjoy. He would also be entitled to other superannuatory benefits under the appropriate Rules of the municipality. Writ petition is accordingly disposed of without any order as to costs." (5) Mr. He would also be entitled to other superannuatory benefits under the appropriate Rules of the municipality. Writ petition is accordingly disposed of without any order as to costs." (5) Mr. Bikash Ranjan Bhattacharjee, learned Advocate appearing for the appellants submits that in the impugned judgment the learned Judge himself observed that the charge brought against the writ petitioner was so grave that it deserved appropriate punishment. But in spite of such finding the learned Trial Judge modified the order of punishment. Mr. Bhattacharjee, learned Advocate further submits that since the charge brought against the writ petitioner / respondent was unequivocally admitted by the writ petitioner in all his correspondences, there was no need for an enquiry proceeding to be initiated. It is submitted by Mr. Bhattacharjee that non-depositing the un-disbursed fund with the Municipality and holding such money for about one year without even any intimation to the Municipal Authority, is a serious offence, which deserves suitable punishment. (6) Referring to the correspondences dated 2.7.98, 8.7.98, 15.7.98 and 24.8.98 made by the writ petitioner / respondent, appearing at pages 57, 59, 62 and 63 of the paper book, it is submitted by Mr. Bhattacharjee that these letters of correspondence are sufficient to indicate that the writ petitioner admitted his guilt and tendered his unqualified apology for his misdeeds. (7) It is further submitted by Mr. Bhattacharjee that although the writ petitioner / respondent refunded the amount, which was in his custody for about a year, such refund was made by him only after he had received the show cause notice. The writ petitioner / respondent made an attempt to justify his illegal action by way of giving an explanation for such non-payment / non-disbursement of the amount of gratuity and provident fund to the legal heirs of the ex-employee of the Municipality. But he failed to give any explanation for keeping such un-disbursed amount in his custody for about one year without even giving any intimation to the concerned authority. Finally, it is submitted by Mr. Bhattacharjee, learned Advocate of the appellants that the writ petitioner / respondent had no authority to keep the public money in his custody, which was entrusted to him for disbursement to the ex-employee on account of provident fund and gratuity. He kept the money in his custody for about a year without any intimation to the authority. Bhattacharjee, learned Advocate of the appellants that the writ petitioner / respondent had no authority to keep the public money in his custody, which was entrusted to him for disbursement to the ex-employee on account of provident fund and gratuity. He kept the money in his custody for about a year without any intimation to the authority. This being a grave and serious offence, the order of punishment was justified. Since the writ petitioner / respondent admitted his guilt, question of initiating any enquiry proceeding does not arise, as it is now well settled principle of law laid down by the Honble Apex Court. In support of his contention, learned Advocate relies upon the judgment of the Honble Supreme Court reported in (2000) 5 SCC 65 (Syndicate Bank Vs General Secretary, Syndicate Bank Staff Association). The Honble Apex Court in paragraph 16 of the said judgment discussed about the requirements of the principles of natural justice, which are required to be followed and those are (1) workman should know the nature of complaint or accusation, (2) an opportunity to state his case, and (3) the management should act in good faith. (8) Relying upon the aforesaid judgment, it is submitted by Mr. Bhattacharjee, learned Advocate of the appellants that all these three ingredients were fully complied with in the present case. Since the writ petitioner / respondent admitted his guilt and tendered his unqualified apology, no disciplinary proceeding was required to be initiated against him, as it is now well-settled principle of law laid down by the Honble Apex Court. (9) The next judgment relied upon by the learned Advocate of the appellants is on the same principle of natural justice, which is reported in (2003) 4 SCC 557 (Canara Bank Vs Shri Debasis Das). In the said judgement it was held by the Honble Apex Court as follows : "The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him." (10) Mr. Bhattacharjee, learned Advocate also relies upon a judgment reported in AIR 2004 SC 4271 (Delhi Transport Corporation Vs Shyam Lai). From a reading of the said judgment, it appears that a bus conductor, who collected money from the passengers without issuing any ticket, was found guilty on his admission of guilt. Basing on such admission he was found guilty in the departmental proceeding and was removed from service. A reference was made to the Tribunal and it was held by the Tribunal that such admission was of no consequence as the officer, who had conducted the enquiry, had no direct evidence. The employer challenged the order of the Tribunal in the High Court and the writ petition was allowed. In appeal before the Division Bench order of the learned Single Judge was set aside and the view of the Tribunal was restored. While allowing the appeal preferred by the employer DTC, it was held by the Honble Apex Court as follows : "It is a fairly settled position in law that admission is the best piece of evidence against the person making the admission. It is, however, open to the person making the admission to show why the admission is not to be acted upon." (11) It is the contention of the learned Advocate of the respondent / writ petitioner that although non-disbursement and non-deposit of the amount with the authority concerned is an admitted fact, the appellants / Municipal Authority should have initiated an enquiry proceeding, as the writ petitioner offered an explanation for such non-disbursement of the amount, to find out the veracity of such explanation. No attempt was made by the Municipal Authority to find out as to whether the explanation was sufficient or not. It is the further contention of the learned Advocate of the respondent / writ petitioner that considering the nature of allegation and other facts and circumstances of the case, the learned Trial Judge modified the order of punishment and in doing so the learned Judge has acted very much within his jurisdiction. (12) In support of his contention, the learned Advocate of the respondent / writ petitioner relied upon a judgement of a Three Judge Bench of the Honble Supreme Court reported in AIR 1996 SC 484 (B. C. Chaturvedi Vs Union of India and Others). The learned Advocate refers to paragraph 18 of the said judgment, which is quoted below : "18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court / Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court / Tribunal, it would appropriately mould the relief, either directing the disciplinary / appellate authority to reconsider the penalty imposed or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. " (13) On the same point the learned Advocate also relies upon the judgment reported in AIR 2000 SC 1151 (U.P. State Road Transport Corporation Vs Mahesh Kumar Mishra) wherein it was held that High Court can interfere with the punishment inflicted upon the delinquent employee if that penalty shocks the conscience of the court. (14) In the judgment reported in (2008) 3 SCC 273 (State of Madhya Pradesh and Others Vs Hazarilal) it was held by the Honble Apex Court that an authority, which is conferred with a statutory discretionary power, is bound to take into consideration all the attending facts and circumstances of the case before imposing an order of punishment and it should act reasonably and fairly. In the said case the respondent / employee, who was a peon, was convicted under Section 323 IPC and was sentenced to fine of Rs.500/- only for causing simple injury to a person. (15) Since he was not punished for any heinous offence and was not convicted for any act involving moral turpitude, the Honble Apex Court dismissed the appeal preferred by the State of M.P. against the judgement of the High Court affirming the order of the Tribunal, which set aside the order of removal from service. (16) In the judgment reported in 2007 SR (SC) 707 (Union of India and Another Vs S. S. Ahluwalia), it was held by the Honble Apex Court that the scope of judicial review in the matter of imposition of penalty as a result of disciplinary proceeding is very limited. The court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges found to be proved. In such a case the court is to remit the case to the disciplinary authority for reconsideration of the punishment. (17) The learned Advocate also relies upon a judgment of the Honble Supreme Court reported in 2007 (4) SLR 645 (Harjit Singh Vs The State of Punjab). From a reading of the said judgment it appears that three police constables were chargesheeted for remaining absent from duty of keeping watch on a convict admitted in hospital. On completion of departmental proceeding the Enquiry Officer found them guilty and ultimately order of dismissal was passed by the Disciplinary Authority. All the three constables filed a suit whereas the learned Trial Judge was of the opinion that the misconduct committed by the delinquent, was of grave nature, the First Appellate Court held the dismissal from service illegal. A second appeal was preferred by the State of Punjab as also by the Disciplinary Authority, which was allowed by the High Court. The appeal before the Honble Apex Court was allowed taking into consideration the facts and circumstances of the case and having regard to the passage of time, as the occurrence took place in the year 1984, and the Honble Apex Court was of the view that the punishment for compulsory retirement would meet the ends of justice. The appeal before the Honble Apex Court was allowed taking into consideration the facts and circumstances of the case and having regard to the passage of time, as the occurrence took place in the year 1984, and the Honble Apex Court was of the view that the punishment for compulsory retirement would meet the ends of justice. (18) The next judgment relied upon by the learned Advocate of the respondent / writ petitioner is reported in (2005)5 SCC 337 (Vivekanand Sethi Vs Chairman, J and K Bank Limited and Others). In paragraph 22 of the said judgement, it was held by the Honble Supreme Court as follows : "22. The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. [See Gurjeewan Garewal (Dr) v. Dr. Sumitra Dash]. The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case [See State of Punjab v Jagir Singh4 and Karnataka SRTC v S.G. Kotturappa5.]" (19) Relying upon the aforesaid judgments, it is submitted by the learned Advocate of the respondent / writ petitioner that the learned Trial Judge was very much within his jurisdiction in modifying the order of punishment. It is the contention that acts committed by the writ petitioner cannot be termed as misappropriation of fund. It was a bona fide mistake on his part in not depositing un-disbursed amount. It is his further contention that the respondent / writ petitioner refunded the un-disbursed amount, which was kept in his custody, and this was sufficient to indicate that the writ petitioner had no bad intention in keeping the amount in his custody. Finally it is submitted that since the writ petitioner / respondent gave an explanation for such non-disbursement of the amount, the Municipal Authority should have initiated an enquiry proceeding to verify the genuineness of such explanation and in not doing so they have violated the principle of natural justice. (20) We have heard the learned Advocates of the respective parties. We have also perused the judgments of the Honble Supreme Court referred to by the learned Advocates of the respective parties. (20) We have heard the learned Advocates of the respective parties. We have also perused the judgments of the Honble Supreme Court referred to by the learned Advocates of the respective parties. It is now well-settled that High Court has the power to interfere with the order of punishment if such penalty shocks the conscience of the court and if the court is satisfied that such penalty is disproportionate to the charges proved against the employee. It is not the case of the appellants that the learned Trial Judge acted beyond jurisdiction. The principles of law laid down by the Honble Apex Court in this regard are all settled principles of law. The main point to be decided by us is whether the respondent authority was justified in inflicting such a major punishment like dismissal from service in the facts and circumstances of the present case. It is an admitted fact that the respondent / writ petitioner was entrusted with an amount of Rs.3,88,346=00 for disbursement to the ex-employee on account of gratuity and provident fund and out of the said amount Rs.53,176=00 was neither disbursed nor deposited with the Municipality. It was further detected that a further sum of Rs.57,237=00 was also not disbursed by the writ petitioner and the entire amount was kept in his custody for about one year without any intimation to the Municipal Authority. Even assuming that an explanation was given by the respondent / writ petitioner, such explanation was for non-disbursement of the amount. There was no explanation as to why the un-disbursed amount was kept in his custody without any authority. There is nothing on record to show that such non-disbursement of the amount was intimated to the Municipal Authority. (21) It is true that the writ petitioner / respondent refunded the amount, but such refund was made only after he was chargesheeted for the alleged offence. So, this factum of refund of amount cannot make any change in the situation and cannot improve the case of the writ petitioner / respondent in any way. (22) It is now well-settled principle of law that if the delinquent accepts the charges brought against him and does not ask for any hearing, it is not necessary to initiate an enquiry proceeding. (22) It is now well-settled principle of law that if the delinquent accepts the charges brought against him and does not ask for any hearing, it is not necessary to initiate an enquiry proceeding. It is the contention of the learned Advocate of the writ petitioner / respondent that since there was an explanation offered by the concerned employee, the Municipal Authorities should have initiated an enquiry proceeding to verify the genuineness of such explanation. But we are unable to accept such contention. Although the writ petitioner made an attempt to justify his action by giving an explanation for non-disbursement of the amount, we do not find any explanation offered by him for keeping the public money in his custody for about a year without any authority and without even giving any intimation to the Municipal Authority. (23) In the reply to show cause and also in subsequent letters of correspondence the writ petitioner admitted his guilt and tendered his unqualified apology for the offence committed by him. The learned Trial Judge also observed in the judgment impugned as follows : "The writ petitioner was confronted with the allegation of non-disbursement and non-deposit. These two facts were admitted by the writ petitioner in all the correspondences consistently. Hence, there was no reason for holding any enquiry to prove the said fact and the authority was right in not initiating any enquiry proceeding for proving those two facts." (24) The learned Trial Judge also observed that the charge against the writ petitioner was so grave that it deserved appropriate punishment. But in spite of such observation the learned Trial Judge modified the order of punishment in the manner as we have already indicated hereinabove. In our considered view, such modification of order of punishment, considering the magnitude and gravity of the offence, was not justified. We are of the view that no relief can be granted to the respondent / writ petitioner on the ratio of the judgments relied upon by the learned Advocate of the respondent / writ petitioner. In our considered view, such modification of order of punishment, considering the magnitude and gravity of the offence, was not justified. We are of the view that no relief can be granted to the respondent / writ petitioner on the ratio of the judgments relied upon by the learned Advocate of the respondent / writ petitioner. In the case of B. C. Chaturvedi (supra), U.P. Road Transport Corporation (supra) and the case of S. S. Ahluwalia (supra), the principles of law laid down by the Honble Supreme Court are all settled principles of law that the scope of judicial review in the matter of imposition of penalty is very limited and the court can only interfere if it finds the same to be shockingly disproportionate to the charges. The case of Hazarilal (supra) is also not applicable in the present case as the delinquent employee in the said case was not involved in any act of moral turpitude. The judgments reported in the case of Harjit Singh (supra) and in the case of Vivekanand (supra) are not applicable in the present case as the facts and circumstances of those two cases are totally different from the present case. The ratio of the aforesaid judgments are not applicable in the present case as we do not find anything wrong with the decision making process of the appellant authority for inflicting punishment of dismissal upon the respondent /writ petitioner. (25) In deciding the present appeal we rely upon the judgment of the Honble Supreme Court reported in (2003) 3 SCC 605 (Regional Manager, U.P. SRTC, Etawah Vs Hotilal). In the said case a bus conductor was chargesheeted and finally he was terminated. Being unsuccessful in departmental appeal, he preferred a writ petition, which was also dismissed. The Division Bench allowed the appeal considering the fact that the alleged misconduct had caused a loss to the State to the extent of Rs.16/-only and that the punishment awarded was not commensurate with the charge. Order of termination was set aside keeping it open for the employer to award any punishment other than removal or termination. While allowing the appeal preferred by the employer, the Honble Apex Court held as follows : "A mere statement that it is disproportionate would not suffice. A party appearing before a court, as to what it is that the court is addressing its mind. While allowing the appeal preferred by the employer, the Honble Apex Court held as follows : "A mere statement that it is disproportionate would not suffice. A party appearing before a court, as to what it is that the court is addressing its mind. It is not only the amount involved but the mental set-up, the type of duty performed and similar relevant circumstances which go into the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the higher degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of the learned Single Judge upholding the order of dismissal." (26) In view of the discussion made above, we find sufficient merit in the submission made by Mr. Bhattacharjee, learned Advocate of the appellants. The appeal is accordingly allowed. The impugned judgment, in so far it relates to the modification of the order of punishment, is hereby set aside. (27) The writ petition is also accordingly dismissed. (28) There will be no order as to costs. Urgent Xerox certified copy of this judgment and order may be supplied to the learned Advocates of the respective parties, if the same is applied for.