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2013 DIGILAW 248 (JHR)

Surat Prasad Mehta v. Bharat Coking Coal Limited

2013-02-18

SHREE CHANDRASHEKHAR

body2013
JUDGMENT The petitioner has challenged the order of dismissal dated 24.12.1998 and the order passed by the appellate authority, whereby his appeal questioning the order of dismissal has been dismissed by order dated 18.03.2002. 2. The petitioner, who was appointed as P.P. Clerk in Bharat Coking Coal Limited, was suspended by order dated 16.02.1994 on the charge of misconduct. It appears that the petitioner was implicated in a criminal case being Katkamsandi P.S. Case No. 86 of 1994, in which he had surrendered on 16.11.1994 and was sent to judicial custody. The petitioner was granted bail on 23.11.1995 and he was released from jail custody on 08.12.1995. The departmental proceeding initiated against the petitioner however continued exparte and order of dismissal from service was passed on 30.10.1995. The petitioner moved the High Court in C.W.J.C. No. 1295 of 1997(R) challenging the order of dismissal dated 30.10.1995. The Writ Petition was disposed of by order dated 01.04.1998 quashing the order of dismissal dated 30.10.1995 with permission to the respondents to initiate the departmental proceeding afresh. 3. The petitioner was not permitted to join his duty and by letter dated 19.05.1998 he was again put under suspension and a departmental enquiry was initiated afresh. The petitioner was afforded opportunity to defend himself and he participated in the enquiry proceeding. However, as the petitioner was not allowed to join his duty nor he was paid back wages, he moved the High Court in C.W.J.C. No. 2733 of 1998(R). During the pendency of the writ petition order dated 24.12.1998 was passed by which the petitioner was dismissed from service. The writ petition was disposed of vide order dated 04.10.1999 with an observation that it would be open to the petitioner to challenge the order of his second dismissal. The petitioner thereafter, filed a petition being C.W.J.C. No. 536 of 2001 challenging the order of dismissal dated 24.12.1998. The writ petition was disposed of with a direction to the petitioner to move before the appellate authority. And therefore, the petitioner filed an appeal before the appellate authority which was also rejected by order dated 18.03.2002. In the aforesaid facts, the petitioner has filed the present writ petition. 4. A counter affidavit has been filed controverting the allegations in the writ petition and justifying the order of dismissal of the petitioner from service. 5. And therefore, the petitioner filed an appeal before the appellate authority which was also rejected by order dated 18.03.2002. In the aforesaid facts, the petitioner has filed the present writ petition. 4. A counter affidavit has been filed controverting the allegations in the writ petition and justifying the order of dismissal of the petitioner from service. 5. Heard learned counsel for both the parties and perused the documents on record. 6. Learned counsel for the petitioner has submitted that memo of charge issued to the petitioner was vague. The charge of willful falsification of the record of the company was not fully proved and the witness Smt. Chari Bourin has not supported the case of the department. The enquiry officer, while recording the finding of misconduct, has erroneously put the burden of proof on the petitioner in as much as he has recorded that the petitioner did not produce any record by which it can be said that he cleared all dues of the workmen. 7. On the other hand, learned counsel for the respondents has submitted that the charges against the petitioner are serious. The charges of fraud and dishonesty in connection with company's business and negligence of duties have been found proved against the petitioner. The enquiry officer has found that from the evidence given by one Sri Umapado Bourin, it transpired that he had opened the CTD Account for five years in which Rs. 200/per month was to be deposited for all five years but Rs. 200/was, in fact, deposited only for 14 months and for rest of the period the amount of Rs. 100/only was deposited towards CTD. In view of the aforesaid therefore, the order of dismissal was passed which was affirmed by the appellate authority. He further submitted that the power of judicial review is very limited and this is not a case which warrants interference by this Court. 8. From the record of the case, I find that the following charges were levelled against the petitioner : (i) 26.1.2 – Negligence of duty. (ii) 26.1.11 – Fraud and dishonesty in connection with company's business. (iii) 26.1.29 – Willful falsification of the record of the company. 9. 8. From the record of the case, I find that the following charges were levelled against the petitioner : (i) 26.1.2 – Negligence of duty. (ii) 26.1.11 – Fraud and dishonesty in connection with company's business. (iii) 26.1.29 – Willful falsification of the record of the company. 9. The statement of the witnesses recorded before the enquiry officer indicates that the management's witnesses namely, Sri Umapado Bourin, Sri Sudhanshu Dubey and Sri Sirdari Dusadh, all have stated before the enquiry officer that in their CTD Account less money was deposited. One witness Smt. Chari Bourin, however, has stated that she got her money from the post office and she never made any complaint regarding less payment or excess deduction from her salary towards CTD Account. It is useful to notice the observations of the enquiry officer which are quoted below : (i) Shri S.P. Mehta was entrusted with the job of CTD and RD Account of the workmen of Sudamdih Coal Washery. (ii) He was to maintain a record regarding deposit and loans taken from the same but he did not do so due to which a lot of complaints were lodged against him for short deposit of CTD money and delay in settling the claims after maturity and for which he had been charge-sheeted. (iii) From the statement given by Shri Umapado Bouri it transpires that he had opened a CTD Account for 5 years in which Rs. 200/per month was to be deposited for all five years but Rs. 200/was being deposited for only 14 months and for the rest period the amount of deposit towards CTD was Rs. 100/per month. (iv) Shri Mehta did not refuse the charges during cross-examination made by the M.R. (v) Shri S.P. Mehta did not produce any record from which it can be said that he has cleared all dues of such workmen, though no complaints has been made by any workers appeared before the enquiry officer regarding nonpayment on maturity. (vi) Shri S.P. Mehta could not produce any record or documents to prove the allegation of the Management regarding not updating the CTD and RD Account. 10. The Project Officer, Sudamdih Coal Washery, on consideration of the enquiry report, passed the order of dismissal from service holding that the charges levelled against the petitioner were very serious in nature. (vi) Shri S.P. Mehta could not produce any record or documents to prove the allegation of the Management regarding not updating the CTD and RD Account. 10. The Project Officer, Sudamdih Coal Washery, on consideration of the enquiry report, passed the order of dismissal from service holding that the charges levelled against the petitioner were very serious in nature. In terms of order dated 12.09.2001 passed by High Court in C.W.J.C. No. 536 of 2001, the petitioner was required to prefer an appeal within a period of two weeks however, the petitioner filed his appeal on 23.01.2002. Although, the appeal of the petitioner has been held to be time barred, however the appellate authority examined the matter on merits also and dismissed the appeal by order dated 18.03.2002. 11. The nature of the power of supervision and control by the High Court under Article 226 and 227 of the Constitution of India has been discussed by a Constitution Bench of the Hon'ble Supreme Court in the case of “Nagendra Nath Bora & Anr. Vs. Commissioner of Hills Division and Appeals, Assam & Ors.”, reported in AIR 1958 SC 398 . The Hon'ble Supreme Court has held as under : “26. But the question still remains as to what is the legal import of the expression 'error of law apparent on the face of the record.' Is it every error of law that can attract the supervisory jurisdiction of the High Court, to quash the order impugned? This court, as observed above, has settled the law in this respect by laying down that in order to attract such jurisdiction, it is essential that the error should be something more than a mere error of law; that it must be one which is manifest on the face of the record. In this respect, the law in India and the law inn England are, therefore, the same. It is also clear, on an examination of all the authorities of this Court and of those in England, referred to above, as also those considered in the several judgments of this Court, that the common law writ, now called order of certiorari, which was also adopted by our Constitution is not meant to take the place of an appeal where the statute does not confer a right of appeal. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even though of law, will not be sufficient to attract this extraordinary jurisdiction.” 12. In the case of “The State of Orissa & Anr. Vs. Murlidhar Jena”, reported in AIR 1963 SC 404 , again a Constitution Bench of the Hon'ble Supreme Court has held that High Court has no power to re-appreciate evidence/findings in a departmental enquiry in exercise of powers under Article 226 and 227 of the Constitution of India. It has been held, “14. There are two other considerations to which reference must be made. In its judgment the High Court has observed that the oral evidence admittedly did not support the case against the respondent. The use of the word "admittedly, in our opinion, amounts somewhat to an overstatement; and the discussion that follows this overstatement in the judgment indicates an attempt to appreciate the evidence which it would ordinarily not be open to the High Court to do in writ proceedings. The same comment falls to be made in regard to the discussion in the judgment of the High Court where it considered the question about the interpretation of the word" Chatrapur Saheb." The High Court has observed that in the absence of a clear evidence on the point the inference drawn by the Tribunal that Chatrapur Saheb meant the respondent would not be justified." This observation clearly indicates that the High Court was attempting to appreciate evidence. The judgment of the Tribunal shows that it considered several facts and circumstances in dealing with the question about the identity of the individual indicated by the expression "Chatrapur Saheb." Whether or not the evidence on which the Tribunal relied was satisfactory and sufficient for justifying its conclusion would not fall to be considered in a writ petition. That in effect is the approach initially adopted by the High Court at the beginning of its judgment. However, in the subsequent part of the judgment the High Court appears to have been persuaded to appreciate the evidence for itself and that, in our opinion, is not reasonable or legitimate.” 13. In the case of “State of Orissa & Ors. Vs. However, in the subsequent part of the judgment the High Court appears to have been persuaded to appreciate the evidence for itself and that, in our opinion, is not reasonable or legitimate.” 13. In the case of “State of Orissa & Ors. Vs. Bidyabhushan Mohapatra”, reported in AIR 1963 SC 779 , the issue which felt for consideration before the Constitution Bench of the Hon'ble Supreme Court was whether in exercise of powers under Article 226 of the Constitution of India, High Court can ask to reconsider the order of dismissal. The Hon'ble Supreme Court has held as under : “9. The High Court has held that there was evidence to support the findings on heads (c) and (d) of Charge (1) and on Charge (2). In respect of charge 1 (b) the respondent was acquitted by the Tribunal and it did not fall to be considered by the Governor. In respect of charges 1(a) and 1(e) in the view of the High Court "the rules of natural justice had not been observed." The recommendation of the Tribunal was undoubtedly founded on its findings on charges 1(a), 1(e), 1(c), 1(d) and Charge (2). The High Court was of the opinion that the findings on two of the heads under Charge (1) could not be sustained, because in arriving at the findings the Tribunal had violated rules of natural justice. The High Court therefore directed that the Government of the State of Orissa should decide whether "on the basis of those charges, the punishment of dismissal should be maintained or else whether a lesser punishment would suffice." It is not necessary for us to consider whether the High Court was right in holding that the findings of the Tribunal on charges 1 (a) and 1 (e) were vitiated for reasons set out by it, because in our judgment the order of the High Court directing the Government to reconsider the question of punishment cannot, for reasons we will presently set out, be sustained. If the order of dismissal was based on the findings on charges 1 (a) and 1(e) alone the Court would have jurisdiction to declare the order of dismissal illegal but when the findings of the Tribunal relating to the two out of five heads of the first charge and the second charge was found not liable to be interfered with by the High Court and those findings established that the respondent was prima facie guilty of grave delinquency, in our view the High Court had no power to direct the Governor of Orissa to reconsider the order of dismissal. The constitutional guarantee afforded to a public servant is that he shall not be dismissed or removed by an authority subordinate to that by which he was appointed, and that he shall not be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The reasonable opportunity contemplated has manifestly to be in accordance with the rules framed under Art. 309 of the Constitution. But the Court in a case in which an order of dismissal of a public servant is impugned, is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanor established. The reasons which induce the punishing authority, if there has been an enquiry consistent with the prescribed rules, are not justiciable: nor is the penalty open to review by the Court. If the High Court is satisfied that if some but not all of the findings of the Tribunal were "unassailable" the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed was final, and the High Court had no jurisdiction to direct the Governor to review the penalty for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable. Therefore if the order may be supported on any finding as to substantial misdemeanor for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. Therefore if the order may be supported on any finding as to substantial misdemeanor for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction of the findings of the enquiry officer or the Tribunal prima facie make out a case of misdemeanor, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice. The High Court was, in our judgment, in error in directing the Governor of Orissa to reconsider the question.” 14. The jurisdiction of High Courts under Article 226 of the Constitution of India in issuing a writ of certiorari has been settled by a Constitution Bench of the Hon'ble Supreme Court in the case of “Syed Yakoob Vs. K.S. Radhakrishnan & Ors.” reported in AIR 1964 SC 477 . In para7 of the judgment it has been held, “7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 19551 SCR 1104: ((S) AIR 1955 SC 233 ): Nagendra Nath v. Commr. of Hills Division, 1958 SCR 1240 : ( AIR 1958 SC 398 ) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168 .” 15. In the case of “Union of India & Anr. Vs. G. Ganayutham”, reported in (1997) 7 SCC 463 , the Hon'ble Supreme Court has summerised the law as under: “31. of Hills Division, 1958 SCR 1240 : ( AIR 1958 SC 398 ) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168 .” 15. In the case of “Union of India & Anr. Vs. G. Ganayutham”, reported in (1997) 7 SCC 463 , the Hon'ble Supreme Court has summerised the law as under: “31. The current position of proportionality in administrative law in England and India can be summarised as follows: (1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator. This is the Wednesbury test. (2) The court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational — in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU principles. (3)(a) As per Bugdaycay, Brind and Smith as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done. (3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon. (3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon. (4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority. (4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of “proportionality” and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14.” 16. In the present case, I find that the enquiry officer has found the charges for negligence of duty and fraud and dishonesty in connection with company's business fully proved. The charge of willful falsification of the record of the company has also been found partly proved. Most of the witnesses examined on behalf of the Management has stated about lesser deposit in their CTD Account. The “Certified Standing Order” of the Company categorises these charges as 'misconduct'. The enquiry officer has found the charge of misconduct against the petitioner proved and it has been approved by the Project Officer, Sudamdih Coal Washery who, on a consideration of the materials on record, passed the order of dismissal. This is not a case in which order of penalty has been passed in violation of principles of natural justice or in violation of some statutory rules. This is also not a case where the authority has passed the order taking into consideration some irrelevant material. This is not a case in which order of penalty has been passed in violation of principles of natural justice or in violation of some statutory rules. This is also not a case where the authority has passed the order taking into consideration some irrelevant material. In so far as the statement of department's witness Chari Bourin is concerned, it does not falsify the charges against the petitioner. She has merely stated that she received her money and she did not make any complaint. I do not find any perversity in orders dated 24.12.1998 and 18.03.2002. 17. The learned counsel for the petitioner has next contended that in view of the fact that charge for willful falsification of the record of the company has not been fully proved during the course of enquiry and the Management's witness Smt. Chari Bourin has stated that she got her money from the post office, the punishment of dismissal from service imposed upon the petitioner is disproportionate to the proved misconduct of the petitioner. I am unable to agree with the contention of the counsel for the petitioner. As discussed above, most witnesses of the department have supported the case against the petitioner. During the enquiry, the petitioner did not dispute the charges levelled against him. It is a settled law through a series of judgments of Hon'ble Supreme Court that power of the High Court to interfere with the quantum of punishment is extremely restricted. 18. The Constitution Bench of the Hon'ble Supreme Court in the case of “State of Orissa & Ors. Vs. Bidyabhushan Mohapatra” (supra) has held that if the misconduct is established, the penalty imposed by the authority is not open to review by the High Court under Article 226 of the Constitution of India. 19. In the case of “Om Kumar & Ors. Vs. Union of India”, reported in (2001) 2 SCC 386 , the Hon'ble Supreme Court has observed, “The quantum of punishment in disciplinary matters is primary for the disciplinary authority to decide and the jurisdiction of the High Courts under Article 226 of the Constitution of India or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the well-known principles known as Wednesbury principles. ” 20. In the case of “Ranjit Thakur Vs. ” 20. In the case of “Ranjit Thakur Vs. Union of India & Ors.” reported in (1987) 4 SCC 611 , the Hon'ble Supreme Court while dealing with a case under court martial has held that : “The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review.” 21. In the present case, the petitioner has been charged with negligence of duty, fraud and dishonesty and willful falsification of the record of the company. During the departmental proceeding charges have been found proved. The order of dismissal from service dated 24.12.1998 cannot be said to be suffering from irrationality or perversity. In view of the above, I do not find any reason to interfere with the order of penalty imposed upon the petitioner. 22. In the result, the writ petition fails and is hereby dismissed. 23. There shall however, be no order as to cost. Petition dismissed.