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2014 DIGILAW 108 (CAL)

Kashinath Chakraborty v. W. B. S. E. B.

2014-02-12

TAPABRATA CHAKRABORTY

body2014
Judgment : Tapabrata Chakraborty, J. This writ application had been preferred assailing the Charge Sheet dated 19.05.2003, the enquiry report dated 27th December, 2003, the Second Show-cause Notice dated 28th May, 2004, the Final Order of Punishment dated 27th August, 2004, the Appellate Authority Order dated 12th July, 2005 and the Order dated 24.01.2006 passed by the Reviewing Authority. In the writ application, the petitioner had, inter alia, averred that he is an employee of the West Bengal State Electricity Board (hereinafter referred to as W.B.S.E.B.) and on 14.11.2002 he was posted as the Station Manager of Sadhanpur Group Electricity Supply (hereinafter referred to as W.B.S.E.B.). Prior to such joining the post of Station Manager, an application for new service connection was made by one Sk. Nazrul Islam on 23.04.2002 and accordingly, a direction was issued by the erstwhile Station Superintendent to Sri Sukumar Nag, Linesman for physical verification of the premises of the said consumer and after inspection a report was filed on 18th July, 2002, stating inter alia that the said consumer unauthorisedly extended the height of a 3 phases 4 wire over head low tension lines (hereinafter referred to as the said L.T. Lines) which crossed over his premises and that for shifting such unauthorized line, one pole was required to be installed but in spite of the said report no steps were taken by the then Superintendent to remove the unauthorized line or to effect electricity connection in the premises of the consumer namely, Sk. Nazrul Islam. Aggrieved by such inaction the said Sk. Nazrul Islam made a representative to the petitioner on 16th December, 2002 and the petitioner accordingly directed one Mr. Sukumar Nag, Linesman to conduct further inspection and pursuant thereto a report was filed on 21st December, 2002 reiterating the earlier report dated 18.07.2002 and the petitioner accordingly prepared an estimate of Rs.14,515/- for shifting the over head low tension line and forwarded the same to the competent authority for approval but such approval was not received and that thereafter Sk. Nazrul Islam prayed for immediate electrical connection as his daughter-in-law was suffering from various ailments and he also undertook to bear the cost of shifting of the over head L.T. Line crossing his building and that as there was no difficulty in effecting service connection to Sk. Nazrul Islam prayed for immediate electrical connection as his daughter-in-law was suffering from various ailments and he also undertook to bear the cost of shifting of the over head L.T. Line crossing his building and that as there was no difficulty in effecting service connection to Sk. Nazrul Islam from the nearest service pole under Burdwan Electricity Supply, Sector-I, such connection was effected. Surprisingly, thereafter, the respondent no.2 vide memorandum dated 19th May, 2003 issued a Charge Sheet to which the petitioner replied on 30th June, 2003 and thereafter the respondent no.6 was appointed as the Enquiry Officer vide memorandum dated 19th July, 2003 and upon conducting an enquiry the said Enquiry Officer submitted his report on 27th December, 2003 and the petitioner replied to the same on 12.03.2004 and thereafter, a second show-cause notice was issued on 28th May, 2004 to which the petitioner replied on 10th July, 2004 and ultimately, thereafter, the Disciplinary Authority issued a final order of punishment vide memorandum dated 27.08.2004. Aggrieved by the same, the petitioner preferred a departmental appeal and the same was disposed of reducing the punishment imposed by the Disciplinary Authority and aggrieved by the said Appellate Authority order dated 12th July, 2005, the petitioner applied for review of the order of punishment before the Standing Appellate Committee – II on 27.08.2005 and vide memorandum dated 24.01.2006 the petitioner was informed that the Standing Appellate Committee – II was of the opinion that there was nothing new in his second appeal petition on the basis of which the matter could be reviewed further. Mr. Dutta, Learned Advocate appearing for the petitioner submits that the Charge Sheet was issued by the respondent no.2 with a closed mind and that from the language of the Charge Sheet it appeared that the Disciplinary Authority had drawn up a positive conclusion against the petitioner and thereafter started disciplinary proceedings against him and in support of such submission, Mr. Dutta referred to the penultimate paragraph of the Charge Sheet wherein the Disciplinary authority had observed that the petitioner had motivatedly effected service connection without officially shifting the unauthorisedly heightened distribution line and overruling the objection raised by the Linesman and that thereby the petitioner only saved the additional cost of officially shifting the distribution line in favour of Sk. Nazrul Islam for his personal gain. Mr. Nazrul Islam for his personal gain. Mr. Dutta further submitted that in the Charge Sheet there is no specification of the rules allegedly violated by the petitioner and that the alleged charges are not specific and such infirmity maligns the said Charge Sheet. Mr. Dutta submits that a perusal of the enquiry report would reveal that the Enquiry Officer had proceeded on the basis of mere assumption observing inter alia that the action of the petitioner was “within the range of probability” and “in favour of the consumer for his personal gain”. Mr. Dutta further submits that suspicion however high may be, can under no circumstances be held to be a substitute for legal proof. Mr. Dutta adds that the impugned finding of the Enquiry Officer to the effect that the petitioner had acted for his personal gain, is absolutely unfounded and that there is no proof whatsoever as regards such personal gain. Mr. Dutta thereafter drew the attention of the Court to the second showcause notice dated 28th May, 2004 and pointed out the observations made in the said notice to the effect that the Disciplinary Authority had considered the past service record of the charged employee and that the petitioner is guilty “for the misconduct connected to effecting of an unauthorized connection at the cost of Board’s loss” and that the matter of interrelation between the act of removal of illegal low tension line and the effecting of service connections had been proved in the enquiry from the spirit of the deposition of the PW Nos.1, 2, 3 and 4. According to Mr. Dutta, the issue of Board’s loss and of personal gain of the petitioner does not stand supported by any material and the PW1, Sri Sukumar Nag had himself categorically deposed that by effecting connection in the premises of Sk. Nazrul Islam, the Board had not sustained any loss and that as such, the findings of the Enquiry Officer and the Disciplinary Authority are absolutely perverse. Mr. Dutta had further assailed the order of punishment by submitting that the Disciplinary Authority from the stage of issuance of the Charge Sheet had proceeded with a mindset that the petitioner had motivatedly effected service connection at the premises of Sk. Mr. Dutta had further assailed the order of punishment by submitting that the Disciplinary Authority from the stage of issuance of the Charge Sheet had proceeded with a mindset that the petitioner had motivatedly effected service connection at the premises of Sk. Nazrul Islam and that his action had caused loss to the Board and that the petitioner had made a personal gain in spite of the fact that the said allegations do not stand proved through the enquiry report. Mr. Dutta also assailed the order of the Appellate Authority dated 12th July, 2005, submitting inter alia that the said authority had merely reiterated the findings of the Disciplinary Authority and went on to say that the petitioner’s acts had “helped the consumer to save the cost of shifting which was done in violation in the rules of the Board” and that the said order does not stand fortified through appropriate reasons and that the rules of the Board alleged to have been violated by the petitioner had also not been mentioned. Mr. Dutta had also assailed the order of the Reviewing Authority, which had also been dismissed by mechanically observing that there was nothing new in the petition filed by the petitioner, on the basis of which the matter could be reviewed further. Mr. Dutta had relied upon the judgment delivered in the case of Khaitan (India) Limited Versus Learned Judge, Eighth Industrial Tribunal, reported in 2009(4)CHN(Cal)380, in support of his argument to the effect that the proceeding suffers from perversity and that the findings are based on no evidence Mr. Dutta had also relied upon the judgment delivered in the case of ShriDipankar Sengupta Versus United Bank of India & Ors. And Dr. Chittaranjan Samanta Versus United Bank of India & Ors. Reported in 1998(2)CLJ(Cal)204, in support of his argument to the effect that the Charge Sheet is absolutely silent about the rules or proceedings which have been allegedly violated by the petitioner warranting invocation of the provisions of regulations 61(b), 61(d) and 61(e) of the Service Regulations and that the allegations contained in the said Charge Sheet do not constitute any misconduct and that any procedural or supervisory lapse by itself cannot be a misconduct. Mr. Dutta had also relied upon a judgment delivered in the case of Narinder Mohan Arya Versus United India Insurance Co. Mr. Dutta had also relied upon a judgment delivered in the case of Narinder Mohan Arya Versus United India Insurance Co. Ltd. and Others reported in (2006)4 SCC713, in support of his argument to the effect that the Enquiry Officer cannot collect any material from outside sources during the conduct of the enquiry and that he cannot travel beyond the charges and that any punishment imposed on the basis of a finding, which is not the subject matter of the charges, is wholly illegally. Lastly, Mr. Dutta had relied upon a judgment delivered in the case of B.C. Chaturvedi Versus Union of India and Others reported in (1995)6 SCC749, in support of his argument to the effect that the punishment is disproportionate. Mrs. Guha, Learned Advocate appearing for the respondent authorities, submits that the petitioner had been granted the fullest of opportunity and that the proceeding had been conducted in a fair manner and that there is no perversity in the findings arrived at by the Disciplinary Authority and in the backdrop of such circumstances question of re-appreciation of evidence does not occasion. Mrs. Guha further submits that keeping in abeyance the shifting of the over head low tension line, the petitioner had illegally effected new service connection from a pole of Burdwan Electricity Supply which is not under the jurisdiction of the petitioner. Mrs. Guha further submits that the petitioner should have first shifted the unauthorized over head low tension line, which could have been done by installing an additional pole and for such work the W.B.S.E.B. could have earned an amount of Rs.14,515/- instead of an amount of Rs.835/- which was availed from the Sk. Nazrul Islam for the purpose of electric connection from the service pole of Burdwan Electricity Supply , Sector-I and that for such action the Board had suffered a loss of Rs.13,750/- (14,585 – 835) and that such finding as arrived at by the Enquiry Officer stands supported through cogent evidence. Mrs. Guha further submits that procedural lapse also constitute a misconduct under the service regulations and that the petitioner is guilty of violation of the provisions of regulations 61(b), 61(d) and 61(e) of the said regulations. Mrs. Guha further submits that procedural lapse also constitute a misconduct under the service regulations and that the petitioner is guilty of violation of the provisions of regulations 61(b), 61(d) and 61(e) of the said regulations. I have heard the Learned Advocates appearing for the parties at length and I have given my anxious consideration to the facts and circumstances of this case and a close perusal of the Charge Sheet reveals that, at the time of its issuance itself, the respondent authority had drawn a positive conclusion against the petitioner that he had motivatedly effected the service connection at the premises of Sk. Nazrul Islam without officially shifting the unauthorisedly heightened distribution line which could have earned the cost of a pole to the Board and that such action of the petitioner was for his personal gain. It is a settled proposition of law that the Disciplinary Authority has to apply its mind upon receipt of the reply to the Charge Sheet as to whether a further inquiry in the matter is called for and in the event upon deliberations and due considerations it is in the affirmative then the inquiry follows but not otherwise. But in the instant case there had been no such application of mind on the part of the Disciplinary Authority and that as such the said authority had proceeded in a biased manner. Furthermore, the Charge Sheet does not specify the particulars of the administrative rules, orders and circulars and it also does not impute any instance of neglect to establish the alleged misconduct under Regulations 61 (b) and 61 (d) of the service regulations. The imputation of loss is also imaginary and that as such there can be no application of Regulation 61 (e). Such an infirm Charge Sheet vitiates the entire decision making process and in view of the above, the Charge Sheet is liable to be set aside. Indisputably, a departmental proceeding is a quasi-judicial proceeding and the Enquiry Officer performs a quasi-judicial function and that the charges leveled against the delinquent officer must be found to have been proved. It is well settled that finding of the Enquiry Officer which is perverse can be interfered with in exercise of the power of the judicial review. Indisputably, a departmental proceeding is a quasi-judicial proceeding and the Enquiry Officer performs a quasi-judicial function and that the charges leveled against the delinquent officer must be found to have been proved. It is well settled that finding of the Enquiry Officer which is perverse can be interfered with in exercise of the power of the judicial review. The Enquiry 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 enquiry report would reveal that the Enquiry Officer had proceeded on the basis of mere suspicion and with a mindset to the effect that the petitioner had motivatedly effected service connection at the premises of Sk. Nazrul Islam and for effecting such connection the petitioner had caused loss to the Board and had earned personal gain. A close scrutiny of the said report would reveal that the Enquiry Officer had observed that “it is therefore within the range of probability that the C.O. was acting in favour of the consumer for his personal gain” and that “the charge that the C.O. was acting in the way he did to achieve personal gain appears predominantly probable and it is, therefore held that this charges also has been sustained in this enquiry” and from such observations it is explicit that the Enquiry Officer had proceeded on the basis of surmises. Furthermore, it had been alleged that the L.T. Lines were unauthorisedly raised by Sk. Nazrul Islam and that for such action of the consumer, the authorities had alleged misconduct on the part of the petitioner though the petitioner had no role to play in such alleged action of the consumer. The Enquiry Officer had observed that in the event the consumer had shifted the L.T. Line, the Board could have earned the cost of a pole and that as prior to such shifting, the petitioner effected electricity connection, the petitioner was stated to have earned a personal gain. Such finding of the Enquiry Officer is absolutely perverse. Moreso, the PW1 had categorically deposed that by effecting connection in the premises of Sk. Nazrul Islam, the Board had sustained no loss. The Enquiry Officer construed the work towards shifting of L.T. Line and the work towards effecting electricity connection to the premises of Sk. Such finding of the Enquiry Officer is absolutely perverse. Moreso, the PW1 had categorically deposed that by effecting connection in the premises of Sk. Nazrul Islam, the Board had sustained no loss. The Enquiry Officer construed the work towards shifting of L.T. Line and the work towards effecting electricity connection to the premises of Sk. Nazrul Islam to be interrelated and such finding does not stand fortified through any reason. The Enquiry Officer omitted to note that Sk. Nazrul Islam undertook to pay the estimate of Rs.14,515/- as prepared for shifting the over head L.T. Line as prepared by the petitioner and that as such there can be no allegation to the effect that petitioner had caused loss to the Board when such estimate as prepared by the petitioner is awaiting approval of the competent authority. In the enquiry report the alleged loss caused to the Board had been quantified to be Rs.13,715/- being the difference between the estimate of shifting (Rs.14,515/-) and the cost deposited by the consumer for availing electricity connection to his premises (Rs.835/-) though the work of shifting of L.T. Line has o nexus with the work of effecting electricity connection to the premises of the consumer and that as such the findings to the effect that Board had suffered a loss and the petitioner had earned a personal gain, are absolutely perverse. Herein, it needs to be pointed out that under the provisions of Electricity Act, 2013, a person has a statutory right to apply for and to obtain supply of electricity from the distribution licensee and the distribution licensee also has a corresponding statutory obligation to supply electricity and by erecting poles and other materials the Board only realizes the cost from the consumer without making any profit and that as such question of any loss to the Board does not occasion. It needs to be further noted that there is no allegation of illegal gratification against the petitioner and the Enquiry Officer had desperately attempted to cast the liability of an imaginary loss to the Board upon the petitioner and to allege the said imaginary loss to the Board, as personal gain of the petitioner and such illegalities malign the enquiry report. The observation of the Enquiry Officer to the effect that the petitioner ought not to have effected electric supply to the premises of Sk. The observation of the Enquiry Officer to the effect that the petitioner ought not to have effected electric supply to the premises of Sk. Nazrul Islam from Burdwan Sector-I is also unsustainable in as much as admittedly several connections had been effected from the said Burdwan Sectior-I pole to others under Sadhanpur Group Electric Supply. Moreover, the respondents themselves in their affidavit-in-opposition at paragraph 24 had categorically averred that “I specifically state that, whether there was any connection given from the line of Burdwan Sector-I to the consumer of Sadhanpur Group Supply was not subject matter of the chargesheet issued to the petitioner”. The Enquiry Officer had illegally proceeded on the basis that new connection should have been withheld till shifting of the L.T. Line unauthorisedly heightened by the said Sk. Nazrul Islam. In view of the above observations, the enquiry report is liable to be set aside. A perusal of the second show-cause notice dated 20.05.2004 reveals that the Disciplinary Authority had taken into consideration the past service record of the petitioner though the issue of past service is not at all a charge and that as such the Disciplinary Authority had proceeded beyond the ambit of the Charge Sheet. The Disciplinary Authority had inter alia observed that “since the act of effecting of the said connection from the pole of a different Electric Supply Office, without prior removal of the existing unauthorized L.T. Line has clearly proved unauthorized” and such observation is absolutely unfounded in as much as there is no nexus in between the work of removal of unauthorized L.T. Line and the work of effecting new service connection. For the unauthorized heightening of the L.T. Line, the consumer is liable and for non-shifting of the same, the petitioner cannot be held guilty moreso when the petitioner had issued an estimate and had forwarded the same to the appropriate authority for approval and when such approval is yet to be received. In view of the above observations, the second show-cause notice is not sustainable in law and the same is accordingly set aside. By memorandum dated 27th of August, 2004, the following major punishments were imposed upon the petitioner : I) Reversion to the post of Work Supervisor (Electrical) fixing his basic pay at the initial of the time scale of pay of Work Supervisor. By memorandum dated 27th of August, 2004, the following major punishments were imposed upon the petitioner : I) Reversion to the post of Work Supervisor (Electrical) fixing his basic pay at the initial of the time scale of pay of Work Supervisor. II) His seniority in the post of Work Supervisor (Electrical) will be counted from the date of his joining. Sri Chakraborty has to submit a joining report to his Controlling Officer at his existing place of posting. A perusal of the final order of punishment issued by the Disciplinary Authority on 27.08.2004 reveals no consideration of the reply given by the petitioner on 10th of June, 2004 to the second show-cause notice. The Disciplinary Authority had simply reiterated that “the Board had suffered a loss to the extent of difference of cost of connection received and actually due to be received which was assessed subsequently”. Such finding is absolutely illegal in as much as no loss whatsoever had been caused to the Board least to say of any personal gain availed by the petitioner. The said order of punishment is a non-speaking one, devoid of reasons and is, therefore violative of the principles of natural justice. Furthermore, the Disciplinary Authority had failed to specify the rules, regulations and procedure of the Board which had been allegedly been violated by the petitioner by giving new electricity connection to the consumer during pendency of an alleged dispute regarding shifting of L.T. Lines from the premises of the said consumer. Moreover, the respondents in their affidavit-in-opposition at paragraph 31A had averred that “it is admitted that, electricity being an essential commodity no person should be deprived of electric connection, but it does not mean that the connection should be effected illegally and unauthorisedly” and in the backdrop of such averment and when there is no finding of any illegality practised by the petitioner by giving new connection and when there is also no finding as regards the specific rules allegedly violated by the petitioner, the order of punishment is unsustainable in law and accordingly, the same is liable to be set aside. Stating to have taken a lenient view, the Appellate Authority modified the order of punishment as follows : “Reduction to the initial stage in the time scale of pay of S.A.E.(E)/S.S. fixing his pay at the initial stage of basic grade of the time scale of pay of S.A.E.(E)/S.S. His seniority in the post of S.A.E.(E)/S.S. shall be reckoned at the bottom of the seniority list of S.A.E.(E)/S.S. from the date of the order of the D.A. & Secretary i.e. 27.08.2004” A perusal of the appellate order dated 12.07.2005 also reveals that the rules and procedures allegedly violated by the petitioner had not been specified and the Appellate Authority had not taken into consideration the specific grounds of appeal as taken by the petitioner in the appeal petition dated 9th of October, 2004. The said order of the appellate authority is a cryptic one and furthermore the said Appellate Authority did not give any opportunity of hearing to the petitioner prior to issuance of the order dated 12.07.2005. The requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences which obviously cover infraction of property, personal rights and material deprivations for the party affected. In view of the above observations, the impugned order dated 12.07.2005 is not sustainable in law and accordingly the same is liable to be set aside. Upon perusal of the order passed by the Reviewing Authority on 24.01.2006, I find that the same does not stand fortified through appropriate reason and the petitioner’s application had been mechanically rejected by quoting a single line to the effect that there is nothing in the petition on the basis of which the matter could be reviewed further. The decision making process adopted by the said respondent no.5 in passing the impugned order dated 24.08.2006 suffers from procedural impropriety and thus the same is not sustainable in law and is liable to be set aside. The entire proceedings against the petitioner smacks of bias and closed mind. The decision making process adopted by the said respondent no.5 in passing the impugned order dated 24.08.2006 suffers from procedural impropriety and thus the same is not sustainable in law and is liable to be set aside. The entire proceedings against the petitioner smacks of bias and closed mind. The Enquiry Authority, the Disciplinary Authority, the Appellate Authority as well as the Reviewing Authority have all been swayed by the pre-conceived notion that prior to shifting of the unauthorisedly heightened L.T. Line by the consumer, the petitioner had illegally granted new service connection to the said consumer and that in such process the petitioner had caused a loss to the Board and had availed personal gain on a purported reasoning that the shifting of the said L.T. Line would have earned a cost of a pole in favour of the Board and in the process, the petitioner had been illegally penalized for discharging a statutory obligation towards grant of new electricity connection to a consumer. As I have discussed earlier, the entire disciplinary proceedings initiated against the petitioner is vitiated by the biased attitude and prejudged opinion of the disciplinary authority. The disciplinary authority failed to observe the principles of natural justice and procedural justice while conducting the disciplinary proceedings right from its initiation by issuing the Charge Sheet which culminated in the final order and seriously prejudiced the petitioner. For the reasons discussed above, the Charge Sheet dated 19.05.2003, the enquiry report dated 27th December, 2003, the Second Show-cause Notice dated 28th May, 2004, the Final Order of Punishment dated 27th August, 2004, the Appellate Authority Order dated 12th July, 2005 and the Order dated 24.01.2006 passed by the Reviewing Authority are all quashed and set aside. The respondents are accordingly directed to grant the admissible service benefits which have been denied to the petitioner pursuant to the order of punishment, within a period of eight weeks from the date of communication of the order, as if no order of punishment was issued to the petitioner in relation to the disciplinary proceedings initiated pursuant to the Charge Sheet dated 19th of May, 2003. The writ application is accordingly disposed of. In the facts of the present case, there will be no order as to costs.