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2013 DIGILAW 784 (CAL)

Chunilal Mukherjee v. Gluconate Health Limited

2013-10-08

SAMBUDDHA CHAKRABARTI

body2013
Judgment : Sambuddha Chakrabarti, J. By this writ petition the petitioner has prayed for a writ in the nature of mandamus directing the respondents to set aside and cancel the impugned show cause notice, the appointment of Sri A. Chowdhury as the Enquiry Officer and letter of suspension issued against him as well as the charge-sheet. The petitioner is an employee of the respondent No.1 undertaking. The respondent no. 2 issued a show cause notice upon the petitioner. He gave a reply denying the charges on April 25, 2011. The petitioner was intimated by the respondent No.2 that the management of the Company had decided to hold an enquiry into the charges levelled against him and Sri Apurva Chowdhury the Marketing Advisor had been appointed as an Enquiry Officer. The petitioner raised objection to the appointment of Sri Chowdhury as the Enquiry Officer. According to the petitioner Mr. Chowdhury could not be an independent person as his service depended on the respondent No.2. He even raised issues about the appointment of Sri Chowdhury to the post of Marketing Advisor. The petitioner further mentioned that the said respondent No.2 knew Sri Chowdhury for a very long time and he could influence and exploit him. The petitioner was subsequently issued a charge-sheet containing the articles of charges as mentioned therein. The petitioner had thereafter requested the Enquiry Officer not to proceed with the enquiry until he received a reply from the Managing Director of the Company. By letter dated July 19, 2011, the Managing Director denied the allegations made against him and he assured that any relationship between him and the Enquiry Officer shall not be prejudicial to him. The apprehension was not found to be a valid one and he was requested to cooperate with him. On July 19, 2011 the petitioner was informed that since the Disciplinary proceeding was pending against him during the pendency of the proceeding and in the interest thereof, the petitioner was placed under suspension. It was clarified that this suspension would not be construed as an order of punishment in any way whatsoever. The respondents have opposed this application by filing an affidavit-in-opposition. According to them the petitioner was merely interested in delaying the proceedings of the enquiry. The petitioner would get all reasonable opportunities at the enquiry. It was clarified that this suspension would not be construed as an order of punishment in any way whatsoever. The respondents have opposed this application by filing an affidavit-in-opposition. According to them the petitioner was merely interested in delaying the proceedings of the enquiry. The petitioner would get all reasonable opportunities at the enquiry. The respondents have specifically denied the allegation that all the managers of the Company used to hold the same rank and were to report to the Managing Director. It was also very specifically denied that the rank and the status of the writ petitioner was above that of the Enquiry Officer. The petitioners have filed two supplementary affidavits. The chief point of attack of the petitioner is that the management of the Company was proceeding with malice and exhibited bias against him. According to him the show cause is bad as it did not prima facie disclose any misconduct and was in the nature a counter-blast to the allegation he brought against the respondent No.2. The petitioner has also challenged the appointment of the Enquiry Officer as he is subordinate to him and the Enquiry Officer was appointed even before the charge-sheet was issued. The charge-sheet has been assailed by the petitioner on the ground that it did not disclose any misconduct and no enumerated misconduct is disclosed in the charge-sheet. After hearing the leanred Advocates for the respective parties and after going through the petition it appears that the petitioner has prematurely filed the petition challenging the show cause notice or the order of suspension. The petitioner has not been able to make out any case for quashing the charge-sheet. In the case of Union of India and another Vs. Kunisetti Satyanarayana, reported in (2006) by the 12 SCC 28 the Supreme Court after considering a large number of judgments had reiterated the well-settled principle that ordinarily no writ lies against a charge-sheet or a show cause notice. The Supreme Court further held that a writ petition is maintainable only if some right of any party is infringed. A mere show cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed that the party can be said to have any grievance. A mere show cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed that the party can be said to have any grievance. In the same case the Supreme Court had a simultaneously held that in some very rare and exception cases only the High Court can quash a charge-sheet or a show cause notice if it is found to be wholly without jurisdiction or for some other reasons if it is wholly illegal. This is not a case where either the show cause or the chargesheet can be said to have satisfied either of the criteria for which the same can be quashed or set aside. The truth or otherwise of the allegations levelled against the petitioner can only be decided at the enquiry and the apprehension of the petitioner that the Enquiry Officer might be biased is no ground for quashing the charge-sheet. That apart the show cause notice has lost much its of force as the petitioner had already given to reply to the same and the same has already been disposed of by the management. Therefore, the allegation of the petitioner that the said notice does not disclose any commission of misconduct or the same was biased and issued with a closed mind cannot be considered after the respondents have framed charges. The petitioner has further prayed for setting aside the appointment of the Enquiry Officer. According to him the Enquiry Officer is subordinate to the petitioner. This has been disputed and denied in the affidavit-in-opposition. The only other challenge to his appointment is that he and the Managing Director are very close to each other. The petitioner has not been able to bring any substantial allegation and the personal relation of the Enquiry Officer with another senior employee should not be taken as a disqualification for him to discharge his duties as an Enquiry Officer. The petitioner has also assailed the charge-sheet on the ground that it does not disclose any misconduct on his part as no enumerated misconduct has been disclosed in the charge-sheet. He has also taken a point that since the Enquiry Officer was appointed before the charge-sheet was issued the Authorities proceeded with a closed mind. The petitioner has also assailed the charge-sheet on the ground that it does not disclose any misconduct on his part as no enumerated misconduct has been disclosed in the charge-sheet. He has also taken a point that since the Enquiry Officer was appointed before the charge-sheet was issued the Authorities proceeded with a closed mind. In support of his case the petitioner has relied on the case of State Bank of India Vs. Tapan Kumar Das, reported in 1993 (2) CHN 103 for a proposition that the language used in the charge-sheet should not be such as to give rise to an apprehension in the mind of the employee of bias on the part of the authority. The expression should not convey a sense of finality of the charged employee’s guilt. The case of Sarat Chandra Chakravarty Vs. the State of West Bengal, reported in AIR 1971, SC 752 has been relied upon by the petitioner for a proposition that if a person is not informed clearly and definitely the allegations on which the charges against the same are founded he cannot possibly by projecting his own imagination discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him. This judgment does not apply to be facts of the present case inasmuch as the charge-sheet issued to the petitioner does not on the face of it suffer from any vagueness or is not incomprehensible for any other reasons. The charge-sheet is definite and spells out the allegation against the petitioner. For the same reason the case of Dr. U. N. Biswas Vs. Union of India and others, reported in 1998 (1) CLJ 505 has also no application. The petitioner relied on this judgment for an observation made by the Division Bench that with regard to the conduct which may be treated as a misconduct it is obligatory on the employer to specify and if necessary definite with necessary precession and accuracy. Since it has already been found that the misconduct alleged against the petitioner has been spelt out in the charge-sheet it cannot be quashed for not disclosing any misconduct against the petitioner. Mr. Dutta, Ld. Advocate for the respondent Corporation, submitted that the charges were framed by the management and it was the management which has decided to hold an enquiry into the charges framed by it. Mr. Dutta, Ld. Advocate for the respondent Corporation, submitted that the charges were framed by the management and it was the management which has decided to hold an enquiry into the charges framed by it. The decision to initiate departmental proceeding was approved by the Chairman and subsequently the same was ratified by the Board of Directors. The Enquiry Officer merely forwarded the charge-sheet. Mr. Majumder referred to the case of Inspector General of police and another Vs. Thavasiappan reported in (1996) 2 SCC 145 . In that case the Supreme Court has held that generally speaking that the charges should be framed by the authority competent to award the proposed penalty or the enquiry should be conducted by such other authority. As such, there is no impropriety in the framing of the charge initiating the disciplinary proceeding. The petitioner has also challenged the order of suspension. According to him the same has been issued to victimize the petitioner and no major misconduct having been imputed against the petitioner the order of suspension was to be held to be bad. There is hardly any substance in the statement made by the petitioner. It is not very uncommon that during the pendency of an enquiry or in contemplation of an enquiry proceeding the person proceeded against is placed under suspension. From that and without anything more no abrupt conclusion can be drawn that the authorities had victimized the petitioner. This is all the more so as the petitioner has not been able to make out any case of victimization in issuing the order of suspension against him. It is a settled principle of law that suspension pending enquiry is not a punishment and as such there is no question of interfering with the same at this stage. It was specifically mentioned in the order of suspension that this was not by way of a punishment. The petitioner has referred to the case of Union of India Vs. Jhanendra Deb, reported in 1991 (2) CLJ 84 for a proposition that suspension order should be resorted to only in those cases only where a major penalty is likely to be imposed at the conclusion of the proceedings. The petitioner further submitted that an order or suspension cannot be lightly passed. Jhanendra Deb, reported in 1991 (2) CLJ 84 for a proposition that suspension order should be resorted to only in those cases only where a major penalty is likely to be imposed at the conclusion of the proceedings. The petitioner further submitted that an order or suspension cannot be lightly passed. This is a well-settled principle of law but it is equally a settled principle of law that suspension should not be lightly interfered with Considering the facts and circumstances of this case this court does not find any substantial reason to interfere with the order of suspension at this stage. Thus, all the prayer of the petitioners fail. The writ petition has no merit. The same is dismissed. There shall, however, be no order as to costs.