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2014 DIGILAW 1060 (CAL)

Subhas Ray Chaudhuri v. University of Calcutta

2014-11-14

TAPABRATA CHAKRABORTY

body2014
Judgment Tapabrata Chakraborty, J. This writ application has been preferred challenging the order of suspension dated 2nd July, 2003, the charge sheet dated 2nd August, 2003, the inquiry report dated 17th March, 2008, the second show cause notice dated 16th May, 2008 and the final order of punishment dated 12th June, 2008. The broad essential facts, which need to be adumbrated for the decision of the instant writ application, are that the petitioner was conferred the Master of Commerce Degree after he passed the said examination securing 1st Class marks. Thereafter the petitioner was conferred Ph.D. in Accountancy from the University of Calcutta. Upon participating in a selection process and upon emerging to be successful in the same, he was appointed as a fulltime Lecturer in the Department of Commerce (Accountancy) in Ananda Mohan College (hereinafter referred to as the ‘said College’) with effect from 1st September, 1999 and his service was duly confirmed on 9th September, 2000. According to the petitioner, his colleagues were jealous of his success as a teacher and, as such they hatched up a conspiracy and one Smt. Ayantika Ghosh, a lecturer in Bengali in the said college submitted a false and fabricated complaint against the petitioner on 3rd June, 2003. On the basis of the said complaint, the teacher-in-charge asked the petitioner to show cause in writing within seven days from the service of the said letter. The petitioner submitted reply to the said show cause notice whereby he denied the allegations, as made against him. However, the Secretary of the Governing Body placed the petitioner under suspension with effect from 2nd July, 2003 and decided to start a disciplinary proceeding against the petitioner. Accordingly, a charge sheet was served upon the petitioner on 2nd August, 2003, with the direction to submit his reply to the Inquiry Officer, viz., Sri Agniswar Dutta Gupta, Advocate. The petitioner duly submitted his reply against the said charge sheet on 15th September, 2003. Thereafter the Inquiry Officer started the enquiry proceeding and as many as 74 sittings were held by the said Inquiry Officer from 22nd September, 2003 to 27th January, 2005. Thereafter no advancement was made in respect of the said inquiry proceeding for about 19 months. The petitioner duly submitted his reply against the said charge sheet on 15th September, 2003. Thereafter the Inquiry Officer started the enquiry proceeding and as many as 74 sittings were held by the said Inquiry Officer from 22nd September, 2003 to 27th January, 2005. Thereafter no advancement was made in respect of the said inquiry proceeding for about 19 months. Under such circumstances, as the petitioner was under suspension and as there was unusual delay in concluding the inquiry proceeding, the petitioner filed one Writ Petition being W.P. No.3350 (W) of 2007. After the said writ application was filed, the petitioner was informed by a notice that one Prof. Promotha Nath Palit, Advocate has been appointed as the Inquiry Officer and the petitioner was asked to attend the said inquiry on 21st September, 2006. However, the petitioner informed the said Inquiry Officer that since a writ petition has been filed by him in this respect in the High Court, so the inquiry officer should refrain himself from proceeding with the inquiry. However, ignoring such representation of the petitioner, the Inquiry Officer preferred to proceed with the inquiry proceeding in absence of the petitioner and ultimately in his report dated 17th March, 2008 he held the petitioner guilty of the charges. A copy of the said inquiry report was forwarded to the petitioner on 16th May, 2008 by the Chairman of the Governing Body of the said college along with a notice whereby the petitioner was asked to submit in writing as to why penalty of compulsory retirement should not be imposed upon him. The petitioner duly submitted his reply against that notice. The Chairman, Governing Body of the said college, issued the final order of compulsory retirement from service against the petitioner on 12th June, 2008. In the said punishment order, the petitioner was informed that if he desired, he can prefer appeal against the said final order of punishment before the Standing Appellate Committee constituted by the Brahmo Samaj Education Society. Challenging the order of suspension dated 2nd July, 2003, the charge sheet dated 2nd August, 2003, the Inquiry Report dated 17th March, 2008 and the final order of Punishment dated 12th June, 2008, the petitioner preferred the instant writ application being W.P. No.1138 of 2008 and upon contested hearing the writ application was disposed of by a judgment dated 19th September, 2008. The operative part of the said judgment runs as follows:- “In the result, the writ petition is disposed of on contest. The penalty, as imposed by the disciplinary authority upon the petitioner by his letter dated 12th June, 2008 is set aside. Since the copy of the inquiry report has now been served upon the petitioner, the Disciplinary Authority is directed to allow opportunity to the petitioner to submit his representation in respect of the report, as submitted by the Inquiry Officer and after such representation is received, the Disciplinary Authority is directed to consider the inquiry report in its proper perspective and to take a decision as to whether said inquiry report should be accepted or not and thereafter to take necessary follow up action as per rules. Since the matter is sent back on remand to the Disciplinary Authority for taking action, as indicated above, the other points which were agitated before this Court by both the sides, are not considered by this Court as it may prejudice the mind of the Disciplinary Authority. Those points should be treated as not considered by this Court and are left open.” Assailing the said judgment dated 19th September, 2008, the said college authorities preferred an appeal being APO No.11 of 2008 and in the backdrop of the fact that the said college authorities were not given an opportunity to file the affidavit-in-opposition, the Hon’ble Appeal Court disposed of the appeal by a judgment dated 5th August, 2009. The operative part of the same runs as follows :- “Under these circumstances, we think that on the ground of violation of principles of natural justice the judgment and order is not liable to be sustained. Hence, we set aside the judgment and order on that ground alone. All other points are kept open. To expedite the matter, the appellants shall file affidavit-in-opposition within two weeks from date; reply thereto, if any, be filed within a week thereafter. This direction is peremptory and mandatory and in case of failure of filing affidavit by any of the parties, the matter shall be dealt with by the Hon’ble Judge afresh in the absence of affidavit. No extension under any circumstances shall be granted by this Court or by the Hon’ble Trial Court. Hence, the matter is remanded back for fresh hearing. No extension under any circumstances shall be granted by this Court or by the Hon’ble Trial Court. Hence, the matter is remanded back for fresh hearing. The learned Trial Judge must not dissuade the earlier observation of the learned Trial Judge. The appeal is thus disposed of.” Pursuant to the judgment dated 5th August, 2009, the said college authorities filed an affidavit-in-opposition and an affidavit-in-reply was also used by the writ petitioner. Mr. Asis Sanyal, learned senior advocate appearing for the petitioner submits that the charges are baseless. Drawing the attention of this Court to the resolution dated 4th June, 2003 at page 60 of the writ application, Mr. Sanyal submits that the words “sexual harassment” contained in Clause (I), do not even feature in the alleged complaint of Prof. Ayantika Ghosh submitted on 3rd June, 2003. He further draws the attention of this Court to Clause (II) at page 60 of the writ application and submits that the allegation against the petitioner for using the name of teachers in question papers for the second time in May, 2003 was considered and condoned by the Disciplinary Authority with a direction upon the petitioner “not to use henceforth the names of any teacher, non-teaching employee or student of the college or any names capable of being identified as their names in any question paper or other public document concerning the college.” But surprisingly thereafter, in alteration of Clause (II) at page 60 of the writ application, charge no.3 was framed and incorporated in the charge sheet at page 67 of the writ petition. Such alteration and amendment was noticed by the Inquiry Officer as would be explicit from Paragraph 9 of the Inquiry Report. In view of the decision and direction of the Governing Body in its meeting dated 4th June, 2003, no proceeding could have been initiated against the petitioner on the basis of the charge no.3 in the charge sheet at page 67 of the writ petition. In the backdrop of the said facts, the very foundation of charge no.3 in the charge sheet at page 67 of the writ application is baseless and unfounded since there has been no violation of such direction as contained in Clause (II) at page 60 of the writ application, subsequent to the said resolution dated 4th June, 2003. So far as the first and second charges are concerned, Mr. So far as the first and second charges are concerned, Mr. Sanyal submits that both the said charges are based upon the complaint of Prof. Ayantika Ghosh, dated 2nd June, 2003. According to him, the incident reported in the said complaint has not been established and that in fact a perusal of the “Staff Attendance Register” at page 150 of the writ application would reveal that the petitioner’s departure time on 2nd June, 2003 was 5:12 p.m. and that Prof. Ayantika Ghosh’s departure time was 5:05 p.m. and that Prof. Prasanta Banerjee’s departure time was 5:15 p.m. and that from such recordings it is explicit that Ayantika Ghosh left prior to the writ petitioner and Prof. Prasanta Banerjee. He further submits that the Inquiry Officer has not dealt with the said “Staff Attendance Register” though the same was marked as Ext.K in the disciplinary proceedings. Prior to issuance of the second show cause notice, the petitioner was not granted any opportunity to reply to the Inquiry Report, which constitutes blatant violation of the principles of natural justice. According to him, in the Inquiry Report there is no evidence to the effect that the petitioner had hurled vulgar and indecent words towards Ayantika Ghosh and that the petitioner caused sexual harassment by way of physical and verbal conduct towards a lady. Drawing the attention of this Court to the evidence tendered by Prof. Ayantika Ghosh, as recorded in Paragraph 16 of the Inquiry Report, he submits that Prof. Ghosh has not even used the words “sexual harassment”, in course of her examination as PW3. In the absence of any nexus of the alleged charges with the petitioner, the Inquiry Report is liable to be struck down. He also draws the attention of this Court to the reply filed by the petitioner on 26th May, 2008 to the second show cause notice dated 16th May, 2008 and submits that the issues pertaining to the Staff Attendance Register and as regards the foundation of charge no.3 were categorically detailed but there is no semblance of consideration of the said issues in the order of punishment dated 12th June, 2008 and that the same being a cryptic one is liable to be set aside. He further submits that the charge sheet was framed pursuant to a resolution dated 27th June, 2003 and was communicated to the petitioner by a memorandum dated 2nd August, 2003 and by the said memorandum the Inquiring Authority was appointed and after 74 sittings, the first Inquiry Officer, namely, Sri Agniswar Dutta Gupta was removed and a fresh Inquiry Officer was appointed on 18th September, 2006. No reason is forthcoming as to why the first Inquiry Officer, who held 74 sittings on and from 22nd September, 2003 to 27th January, 2005, was removed and as to why a new Inquiry Officer was appointed almost after 19 months. The Inquiry Report was for the first time forwarded to the petitioner along with the second show cause notice dated 16th May, 2008 and the petitioner was also denied an opportunity to reply to the said Enquiry Report, prior to issuance of the second show cause notice dated 16th May, 2008. The entire sequence of the said facts reveal that the Disciplinary Authority has proceeded with a biased mind set. He further draws the attention of this Court to a letter dated 6th June, 2003 issued by one Smt. Tanusree Dutta (Chanda), Lecturer of Mathematics and a perusal of the same reveals that the said lecturer withdrew her signature from the letter signed on 3rd June, 2003 at page 58 of the writ application. It has also been submitted that no formal complaint was lodged by the said Prof. Ayantika Ghosh before the police authorities. Mr. Banerjee, learned advocate appearing for the college authorities submits that the writ application itself is not maintainable inasmuch as the petitioner ought to have availed the alternative remedy by approaching the departmental Appellate Authority. He further submits that the petitioner preferred an earlier writ application being W.P. No.3350 (W) of 2007 challenging the order of suspension, the change of the Inquiry Officer and the Disciplinary Enquiry and the same was withdrawn without obtaining liberty of this Court to prefer the instant writ application afresh on the selfsame cause of action and that as such the instant writ application is not maintainable. He further submits that full opportunity was given to the petitioner to contest the departmental proceeding. The petitioner having not participated in the inquiry conducted by the second Inquiry Officer, namely, Sri Promotha Nath Palit, cannot allege violation of the principles of natural justice. He further submits that full opportunity was given to the petitioner to contest the departmental proceeding. The petitioner having not participated in the inquiry conducted by the second Inquiry Officer, namely, Sri Promotha Nath Palit, cannot allege violation of the principles of natural justice. He further submits that the petitioner was granted an opportunity to reply to the resolution dated 4th June, 2003 and upon consideration of his reply, the charge sheet was issued and the petitioner was allowed to reply to the same. The petitioner’s defence statement as filed was duly considered by the Inquiry Officer and the Inquiry Report was filed and thereafter the second show cause notice was issued on 16th May, 2008 to which the petitioner replied and after considering the same, the order of punishment was issued and that as such no prejudice was suffered by the petitioner. In the backdrop of the said facts, the allegation of violation of the principles of the natural justice, as agitated by the petitioner, is not sustainable. According to him, it is settled law that judicial review by the Writ Court is not akin to adjudication on merit by re-appreciating the evidence as an appellate authority. It is also well-settled that the standard of proof in a Disciplinary Proceeding is that of preponderance of probability. In support of the arguments, Mr. Banerjee has relied upon the following judgments:- a) State Bank of India & Ors. –vs- Ramesh Dinkar Punde, reported in (2006) 7 SCC 212 , in support of the proposition to the effect that judicial review is not akin to adjudication on merit by re-appreciating the evidence as an Appellate Authority. b) Deputy Commissioner, Kendriya Vidyalaya Sangathan & Ors. –vs- J. Husen, reported in (2013) 10 SCC 106 , in support of the proposition to the effect that in exercise of the power of judicial review, the Writ Court can interfere with the punishment imposed only when it is found to be shockingly disproportionate, suggesting lack of good faith. c) Union of India & Anr. –vs- B. C. Chaturbedi, reported in (1995) 6 SCC 749 , in support of the proposition to the effect that the power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. –vs- B. C. Chaturbedi, reported in (1995) 6 SCC 749 , in support of the proposition to the effect that the power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. d) Union of India –vs- Parma Nanda, reported in (1989) 2 SCC 177 , in support of the proposition to the effect that the court cannot itself substitute the penalty imposed by the competent authority. I have heard the submissions of the learned advocates appearing for the respective parties and I have considered the materials on record. It would be necessary to first deal with the objection of availability of an alternative remedy to the petitioners. It is settled law that mere existence of an alternative remedy does not oust the jurisdiction of the Writ Court. In view of the decision of the Hon’ble Supreme Court reported in (1998) 8 SCC 1 (Whirlpool Corporation Versus Registrar of Trade Marks, Mumbai), at least in four situations a Court of Writ would be justified in entertaining a writ petitioner despite availability of an alternative remedy. One of such situation is when the action impugned in the writ petition is violative of the principles of natural justice. The rule of exhaustion of alternative remedy, being a rule of discretion rather than a rule of compulsion. In an appropriate case the court would be justified in exercising its discretion. Having regard to the facts and circumstances of the present case, in my view, since the issue of violation of the principles of natural justice is involved in the instant lis, the petitioners can certainly approach the Hon’ble Writ Court notwithstanding the availability of an alternative remedy. I therefore do not propose to relegate the petitioner to the alternative remedy. Furthermore, through the order of punishment dated 12th June, 2008 the petitioner was informed that he may submit his appeal in writing to the “Standing Appellate Committee” constituted by the Brahmo Samaj Education Society through the secretary of the said society within 21 days. I therefore do not propose to relegate the petitioner to the alternative remedy. Furthermore, through the order of punishment dated 12th June, 2008 the petitioner was informed that he may submit his appeal in writing to the “Standing Appellate Committee” constituted by the Brahmo Samaj Education Society through the secretary of the said society within 21 days. Such information is, however absolutely misleading inasmuch as under the provisions of Section 12 of the West Bengal College Teachers (Security of Service) Act, 1975, the University to which the College is affiliated is the appellate authority and that the time towards preference of such statutory appeal is 30 days. The argument of Mr. Banerjee to the effect that the instant writ application is not maintainable since the petitioner preferred an earlier writ application being W.P. No.3350 (W) of 2007 and the same was withdrawn by the petitioner without obtaining the liberty of this Court to file afresh, is not sustainable since the said issue has neither been pleaded in the affidavit-in-opposition filed by the respondents to the instant writ application nor the said issue has been argued by the respondents at the time of disposal of the said writ application on 19th September, 2008. Furthermore, the plea of abandonment of claim cannot be taken aid of unless there is an expression of an opinion on the merits. The contention of the respondents to the effect that the petitioner’s challenge against the change of the Inquiry Officer is not maintainable in view of the principles of Order 23 Rule 1 of the Code of Civil Procedure, is also not sustainable. As a Court of plenary jurisdiction, the Writ Court while exercising the powers under Article 226 of the Constitution of India is free to adopt its own procedures and to follow them. The Writ Court cannot be compelled to follow the procedures prescribed in the Code of Civil Procedure and the power of the Writ Court cannot be limited by procedural provisions prescribed in the said Code. The Writ Court cannot be compelled to follow the procedures prescribed in the Code of Civil Procedure and the power of the Writ Court cannot be limited by procedural provisions prescribed in the said Code. A perusal of the resolution dated 4th June, 2003 at page 60 of the writ application categorically reveals that the very foundation of the third charge at page 67 of the writ application, is baseless inasmuch as the petitioner’s reply to the allegation towards the user names of the Staff of the said college in the examination question paper, was duly accepted by the Competent Authority and a direction was issued upon the petitioner “not to use henceforth the names.” Upon such acceptance of the petitioner’s reply and upon communication of such decision, the authorities could not have framed the third charge at page 67 of the writ application. The first and the second charges in the charge sheet at page 67 of the writ application are based on the complaint of Prof. Ayantika Ghosh dated 2nd June, 2003. A close scrutiny of the said complaint nowhere reveals that the words “sexual harassment” have been used and that as such the incorporation of such imputation is totally baseless. The said words also do not find place in the deposition of Prof. Ayantika Ghosh as tendered before the Inquiry Officer. As such, the said charges are infirm and vague and are unsustainable in law. At the stage of the issuance of the charge sheet, the respondents have arrived at a specific finding that the petitioner had sexually harassed Prof. Ayantika Ghosh. The authorities have thus proceeded in a biased manner while framing the charges and such infirmity maligns the charge sheet. Accordingly, the said charge sheet is unsustainable in law and the same is thus set aside. A close scrutiny of the Inquiry Report also reveals that save and except recording the evidence tendered, the Inquiry Officer has not disclosed any reason in support of his findings and the records do not reveal any evidence which links the charged officer with any offence of sexual harassment and user of vulgar and indecent words and that as such the Inquiry Report is absolutely perverse. Admittedly, the first Inquiry Officer held 74 sittings on and from 22nd September, 2003 to 27th January, 2005 but surprisingly thereafter the said Inquiry Officer was abruptly removed and no reason towards such removal has been disclosed by the respondents. Furthermore, the Inquiry Report filed by the second Inquiry Officer reveals that time was granted on and from 18th April, 2006 to 5th April, 2007 to the prosecution witnesses for corroboration of their evidence tendered before the first Inquiry Officer but surprisingly only 7 days time was granted to the defence witnesses to appear and corroborate the evidence tendered by them before the first Inquiry Officer and abruptly thereafter the inquiry was closed and the report was filed. From such sequence it is explicit that the Inquiry Officer has proceeded in a biased and arbitrary manner. Indisputably, a departmental proceeding is a quasi-judicial proceeding and the Inquiry Officer performs a quasi-judicial function and that the charges levelled against the delinquent officer must be found to have been proved. The Inquiry Officer has a duty to arrive at a finding upon taking into consideration the materials on record but in the instant case a perusal of the Inquiry Report would reveal that the Inquiry Officer has proceeded on the basis of mere suspicion and a mindset to the effect that the petitioner had sexually harassed Prof. Ayantika Ghosh. Suspicion, however high may be, can under no circumstances be held to be a substitute for legal proof. The decision making process, as adopted by the Inquiry Officer, suffers from procedural impropriety and thus the Inquiry Report is not sustainable in law and is accordingly set aside. Admittedly, no copy of the Inquiry Report was supplied to the petitioner prior to issuance of the show cause notice dated 16th May, 2008 and accordingly the petitioner was denied a reasonable opportunity to prove his innocence and such non-furnishing of the Inquiry Report prejudiced him gravely. Records reveal that the charge sheet was dated 2nd August, 2003 and the Inquiry Report was filed almost five years thereafter on 17th March, 2008 but the order proposing compulsory retirement was issued within two months thereafter on 16th May, 2008 without even serving a copy of the Inquiry Report. Records reveal that the charge sheet was dated 2nd August, 2003 and the Inquiry Report was filed almost five years thereafter on 17th March, 2008 but the order proposing compulsory retirement was issued within two months thereafter on 16th May, 2008 without even serving a copy of the Inquiry Report. Such sequence reveals that the competent authority made up its mind to penalize the petitioner prior to consideration of the petitioner’s reply which could have been filed by the petitioner in the event of supply of the Inquiry Report prior thereto and that as such the respondents have acted in blatant violation of the principles of the natural justice and such non-supply of the Inquiry Report has caused prejudice to the petitioner and has resulted in miscarriage of justice. A perusal of the impugned order of punishment dated 12th June, 2008 reveals no consideration of the reply dated 26th May, 2008 filed by the petitioner and the annexures to the said reply, including the extract of the Staff Attendance Register. The said order of punishment also does not reveal any independent application of mind and the same being a cryptic one, is unsustainable in law and the same is accordingly set aside. The contents of the affidavit-in-opposition are nothing but mere denial of the averments made in the writ application and such denial does not stand fortified through appropriate reasoning. No explanation whatsoever has been disclosed by the respondents as to why the first Inquiry Officer was removed after he had conducted 74 sittings on and from 22nd September, 2003 to 27th January, 2005 and such conduct of the respondents speaks of an intent to keep the petitioner under indefinite suspension with a stigma to the effect that he has sexually harassed Prof. Ayantika Ghosh. This Court is quite aware of the gravity of the charges and if this Court puts its seal of approval to the finding, it would have not only the effect of curtailment of the petitioner’s service tenure, affecting his means of livelihood but also serious repercussion on his domestic and social life. Throughout his life, he would have to carry the stigma of having sexually harassed a lady teacher. In my view, one should not be swayed away with the imputation of allegation without examining the veracity of the same. The Court of law must be dispassionate while hearing the controversy of the like nature. Throughout his life, he would have to carry the stigma of having sexually harassed a lady teacher. In my view, one should not be swayed away with the imputation of allegation without examining the veracity of the same. The Court of law must be dispassionate while hearing the controversy of the like nature. The expression ‘sufficiency of evidence’ postulates existence of some evidence which links the charged officer with the misconduct alleged against him but in the instant case no such nexus stands established. The prosecution has miserably failed to prove the charges which could justify the punishment. In exercise of power conferred under Section 20 of the West Bengal College Teachers (Security of Service) Act, 1975 (hereinafter referred to as the said Act), the government has also framed rules, namely, the West Bengal College Teachers (Security of Service) Rules, 1977 (hereinafter referred to as the said Rules). Rule 7 of the said Rules prescribes the manner in which the disciplinary proceeding shall be held. The records reveal that no statement of imputation of misconduct stands incorporated in the impugned charge sheet. Furthermore, there is no specification of the Rules allegedly violated by the petitioner and such infirmities maligns the impugned proceeding. For the foregoing reasons, order of suspension dated 2nd July, 2003, the charge-sheet dated 2nd August, 2003, the Inquiry Report dated 17th March, 2008 and the Final order of Punishment dated 12th June, 2008 are set aside and quashed. The respondents are directed to reinstate the petitioner within 6 weeks from the date of communication of this order and to start payment of the petitioner’s monthly salaries and other allowances, month by month. There can be no precise formula nor any “cast iron rule” for grant of back wages. In the instant case, the proceedings were initiated by a charge-sheet dated 2nd August, 2003 and the order of compulsory retirement was passed on 12th June, 2008. In the backdrop of such gross delay and the order of dismissal, having been set aside not on any technical ground and in the absence of any allegation to the effect that the petitioner was gainfully employed during the period in question, in my opinion, a balance would be maintained and the interest of justice would be sub-served through issuance of a direction upon the respondents to disburse 50% of the back wages to the petitioner. Accordingly, the respondents are directed to disburse the said amount through 4 equal monthly instalments, first of which should be paid within a period of 8 weeks from the date of communication of this order. With such observations and directions, the writ application is disposed of. In the facts of the present case, there will be no order as to costs.