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2014 DIGILAW 187 (CAL)

Md. Shafiullah Gazi v. State of West Bengal

2014-03-06

PRANAB KUMAR CHATTOPADHYAY, SAMAPTI CHATTERJEE

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JUDGMENT : Pranab Kumar Chattopadhyay, J. The writ petitioner while assailing the judgment and order dated 2nd August, 2012 passed by the West Bengal Administrative Tribunal in Case No. O.A. 249 of 2012 has raised an important question with regard to the validity and/or legality of the disciplinary proceedings initiated against the petitioner herein. The learned West Bengal Administrative Tribunal, however, by the impugned judgment and order dated 2nd August, 2012, upheld the jurisdiction of the Disciplinary Authority to pass the final order in the instant case but held that in case of enhancement of punishment other than the notified one, fresh notice is to be served. The petitioner is aggrieved by the aforesaid decision of the learned Tribunal, since the learned Tribunal granted liberty to the respondent authorities to inflict enhanced punishment upon the, petitioner after serving fresh notice. 2. On examination of the impugned judgment and order passed by the learned Tribunal, we find that the Public Service Commission, West Bengal by its order dated 3rd August, 2011 suggested enhancement of punishment other than the punishment notified to the petitioner herein. Pursuant to the aforesaid advice of Public Service Commission, West Bengal the respondent authorities proposed imposition of enhanced punishment upon the petitioner herein without serving any fresh notice on the petitioner in respect of enhanced punishment. 3. In course of hearing of the writ petition, a serious question was raised regarding validity and/or legality of the disciplinary proceedings initiated against the petitioner, since it has been specifically alleged that the Disciplinary Authority had no knowledge in respect of initiation of the disciplinary proceedings against the petitioner and the punishment was imposed in the name of the Disciplinary Authority by another authority in clear violation of the rules. 4. The learned Advocate representing the petitioner submitted before this Court that the Disciplinary Authority of the petitioner is undisputedly, the Governor of the State. The learned Advocate further submitted that the matter relating to the initiation of the disciplinary proceedings against the petitioner was never brought to the knowledge of the Governor and therefore the Governor, being the Disciplinary Authority, never issued any direction for initiation of the disciplinary proceedings against the petitioner. 5. The learned Advocate of the petitioner also submitted that the Governor did not authorise any other authority to initiate and conduct the disciplinary proceedings against the petitioner herein. 5. The learned Advocate of the petitioner also submitted that the Governor did not authorise any other authority to initiate and conduct the disciplinary proceedings against the petitioner herein. The learned Advocate of the petitioner submitted that in the instant case, the disciplinary proceedings initiated against the petitioner stands vitiated on the sole ground that the same was neither initiated by the Disciplinary Authority nor by any authority aurhorised by the said Disciplinary Authority. 6. The learned Advocate representing the petitioner submitted that the Principal Secretary, Land & Land Reforms Department, Government of West Bengal, by the order dated 5th February, 2010 informed the petitioner that the Governor, being the Disciplinary Authority, upon considering the enquiry report along with the supporting documents was pleased to agree with the findings of the Inquiring Authority and in consultation with the Public Service Commission, West Bengal proposed penalty of withholding of two annual increments of the petitioner without cumulative effect. By the aforesaid order, petitioner herein was granted liberty to submit representation against the penalty proposed. Subsequently, by the order dated 5th January, 2012 the said Principal Secretary again informed the petitioner that the Governor, being the Disciplinary Authority, after consultation with the Public Service Commission, West Bengal has been pleased to impose the enhanced penalty of withholding of three annual increments of the petitioner without cumulative effect. 7. The learned Advocate representing the petitioner submitted that the Governor, being the Disciplinary Authority, while proposing the punishment by the order dated 5th February, 2010 not only considered the enquiry report submitted by the enquiry officer and the other relevant documents but also consulted the Public Service Commission, West Bengal. Therefore, pursuant to the subsequent advice of the Public Service Commission, West Bengal, the said Disciplinary Authority had no scope to enhance the punishment. 8. The learned Advocate representing the petitioner submitted that the Disciplinary Authority proposed punishment by the order dated 5th February, 2010 in consultation with the Public Service Commission, West Bengal and therefore, subsequently, such proposed punishment could not be enhanced upon considering modified advice of the Public Service Commission, West Bengal since the Disciplinary Authority had no jurisdiction to change its decision on proposed punishment upon considering any modified advice of the Public Service Commission, West Bengal. 9. 9. The learned Advocate of the petitioner also submitted that the petitioner herein submitted a representation against the punishment as proposed by the order dated 5th February, 2010 and therefore, there is no scope for submission of a fresh representation by the petitioner herein on the basis of the same materials. 10. Learned Advocate for the petitioner further submitted that in the instant case a punishment under Clause (iii) of Rule 8 of West Bengal Services (Classification, Control and Appeal) Rules, 1971 has been determined under the provision of Sub-Rule 14 of Rule 10 of West Bengal Services (Classification, Control and Appeal) Rules, 1971 and therefore, there is no scope of consultation with the Public Service Commission, West Bengal after such determination and before the passing of the order. 11. Learned Advocate for the petitioner also submitted that the West Bengal Services (Classification, Control and Appeal) Rules, 1971 do not provide for enhancement of penalty by the Disciplinary Authority after indicating the proposed penalty. 12. The learned Advocate representing the state respondents submitted that the Principal Secretary, Land and Land Reforms Department, Government of West Bengal, being the Controlling Authority took the decision in the name of Governor and such decision is legal and valid in view of the specific provision of Article 166 of the Constitution of India. 13. Mr. Sadhan Kr. Halder, representing the State respondent, submitted that in terms of Article 166(3) of the Constitution of India, Principal Secretary, Land and Land Reforms Department, Government of West Bengal has every right to pass appropriate order in the name of Governor in connection with the disciplinary proceedings initiated against the petitioner herein. 14. Mr. Halder further submitted that the disciplinary authority is entitled to revise its earlier decision regarding imposition of penalty and enhance the same upon granting an opportunity to the employee concerned to submit a representation against the proposed enhancement of the penalty. 15. The issue relating to the authority of the Principal Secretary, Land & Land Reforms Department, Govt. of West Bengal to take the decisions in the name of the Governor is not required to be decided afresh in this petition since the law is well-settled in this regard. The Hon'ble Supreme Court in the case of Samser Singh v. State of Punjab & Anr., reported in (1974)2 SCC 831 specifically decided the aforesaid issue. The Principal Secretary, Land & Land Reforms Department, Govt. The Hon'ble Supreme Court in the case of Samser Singh v. State of Punjab & Anr., reported in (1974)2 SCC 831 specifically decided the aforesaid issue. The Principal Secretary, Land & Land Reforms Department, Govt. of West Bengal therefore, rightly took decisions in the disciplinary proceedings initiated against the petitioner herein in the name of the Governor in view of the aforesaid settled proposition of law. 16. Let us now decide the legality and/or validity of the order dated 5th January, 2012 whereby the Principal Secretary, Land & Land Reforms Department, Govt. of West Bengal inflicted the enhanced penalty on the petitioner upon revising its earlier decision which was communicated to the petitioner by the order dated 5th February, 2010. 17. Before proceeding further, relevant provisions of the West Bengal Services (Classification, Control and Appeal) Rules, 1971 are set out as hereunder: "Rule 10(4)[(i)].The disciplinary authority shall in all cases for the purpose of enquiry appoint an inquiring authority and forward to it (a) a copy of the articles of charge and the statement of the imputation of misconduct of misbehaviour; (b) a copy of the statement of witness, if any; (c) evidence proving the delivery of the documents referred to in sub-rule (2) to the Government servant. (ii) Where the disciplinary authority appoints an inquiring authority for holding an inquiry into the articles of charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the "Presenting Officer" to present on its behalf the case in support of the articles of charge". 10.(i) The disciplinary authority shall consider the record of the enquiry and record its finding on each charge. 11. If the disciplinary authority, having regard to its finding on the charges, is of opinion that any of the penalties specified in clauses (i) to (iii) of rule 8 should be imposed, it shall pass appropriate orders on the case : Provided that in every case in which it is necessary to consult the Commission, the record of the enquiry shall be forwarded by the disciplinary authority to the Commission for advice and such advice taken into consideration before passing the orders. 14. 14. On receipt of the advice of the Commission the disciplinary authority shall consider the representation, if any, made by the Government servant as aforesaid, and the advice given by the Commission and determine what penalty, if any, should be imposed on the Government servant and pass appropriate orders on the case." 18. It is not in dispute that by the order dated 5th February, 2010 petitioner herein was informed that the Disciplinary Authority proposed imposition of the penalty of withholding of two annual increments of the petitioner without cumulative effect upon considering the enquiry report submitted by the Inquiring Authority along with the supporting documents and with the consultation of the Public Service Commission, West Bengal. The aforesaid order dated 5th February, 2010 issued by the Principal Secretary, Land and Land Reforms Department, Government of West Bengal is set out as hereunder: "GOVERNMENT OF WEST BENGAL LAND AND LAND REFORMS DEPARTMENT SECTION-B-1, BRANCH - A & P WRITERS' BUILDINGS, KOLKATA-700 001. No. 858-A&P/3A-14/07 Dated, Kolkata, the 05th February, 2010 ORDER WHEREAS departmental proceedings under rule 10 of West Bengal Services (Classification, Control and Appeal) Rules, 1971 were drawn up under Memo No. 6714-A&P dated 16.10.07 against Md. Safiullah Gazi, Revenue Officer, formerly attached to the Block Land & Land Reforms Officer, Magrahat-II, South 24 Pgs on seven (7) counts of charge as provided in Annexure -I of the said memorandum; AND WHEREAS an enquiry was made by Shri Arun Kumar Dutta, Sub-divisional Land & Land Reforms Officer, Baruipur, South 24 Parganas who was appointed as Inquiry Authority under Order No. 4040-A&P dated 27.6.08 to enquire into the charges framed against Md. Safiullah Gazi who was duly informed of grounds on which the action was proposed to be taken against him and who was given reasonable opportunities to defend himself by calling witnesses and producing documents in his defence; AND WHEREAS on completion of the enquiry the Inquiring Authority submitted his report finding that all the seven charges levelled against Md. Safiullah Gazi have been fully established; AND WHEREAS the Governor is the disciplinary authority in respect of the post held by Md. Safiullah Gazi have been fully established; AND WHEREAS the Governor is the disciplinary authority in respect of the post held by Md. Safiullah Gazi; AND WHEREAS on going through the enquiry report alongwith the supporting documents the Governor has been please to agree with the findings of the Inquiring Authority and also been pleased to revise the proposed penalty with the consultation of the P.S.C., W. B. that the penalty of withholding of two (2) annual increments of Md. Safiullah Gazi without cumulative effect may be imposed upon Md. Safiullah Gazi in terms of rule 8 (iv) of the West Bengal Services (Classification, Control and Appeal) Rules, 1971; NOW, THEREFORE, in pursuance of clause (b) of sub rule 12 of rule 10 of West Bengal Services (Classification, Control and Appeal) Rules, 1971 the Governor has been pleased to give a notice to the said Md. Safiullah Gazi communicating him of the aforesaid penalty and call upon him to submit within fifteen days from the date or receipt or this order such representation as he may wish to make on the penalty proposed but only on the basis of evidence adduced during the enquiry. This Order cancels this deptt's previous Order No. 1307-A&P dated 20.2.09. By order of the Governor Sd/- Pr. Secretary to the Government of West Bengal" 19. Thereafter, the said Principal Secretary by the order dated 5th January, 2012 informed the petitioner that the Disciplinary Authority proposed imposition of enhanced penalty on the petitioner in consultation with the Public Service Commission, West Bengal upon considering the identical materials on record namely, charge-sheet, enquiry report etc. The said order 5th January, 2012 is set out as hereunder: "GOVERNMENT OF WEST BENGAL LAND AND LAND REFORMS DEPARTMENT SECTION-B-1, BRANCH - A & P WRITERS' BUILDINGS, KOLKATA-700 001. No. 111 -A&P/3A-14/07 Dated Kolkata, the 5th January, 2012 ORDER WHEREAS departmental proceedings under rule 10 of West Bengal Services (Classification, Control & Appeal) Rules, 1971 were drawn up under Memo. No. 6714-A&P dated 16.10.2007 against Md. No. 111 -A&P/3A-14/07 Dated Kolkata, the 5th January, 2012 ORDER WHEREAS departmental proceedings under rule 10 of West Bengal Services (Classification, Control & Appeal) Rules, 1971 were drawn up under Memo. No. 6714-A&P dated 16.10.2007 against Md. Shafiullah Gazi, Revenue Officer, formerly attached to the Block Land and Land Reforms Officer, Magrahat-II, previously posted at Basanti and now posted under the Block Land and Land Reforms Office, Canning-II, South 24 parganas on 7 (seven) counts of charge as provided in Annexure-I of the said Memorandum; AND WHEREAS an enquiry was made by Shri Arun Kumar Dutta, Sub-Divisional Land and Land Reforms Officer, Baruipur, South 24 Parganas who was appointed as the inquiring Authority under Order No. 4040-A&P dated 27.06.2008 to enquire into the charges framed against Md. Shafiullah Gazi who was duly informed of the grounds on which the action was proposed to be taken against him and who was given reasonable opportunities to defend himself by calling witnesses and producing documents in his defence; AND WHEREAS on completion of the enquiry the Inquiring Authority submitted his report finding that all the 7 (seven) charges leveled against Md. Shafiullah Gazi have been duly established.; AND WHEREAS on consideration of the report of the Inquiring Authority and relevant documents the Governor being the Disciplinary Authority in respect of the post held by Md. Shafiullah Gazi has been pleased to agree with the findings of the Inquiring Authority; AND WHEREAS having regard to the gravity of the charges framed and established against Md. Shafiullah Gazi, the Governor after consultation with Public Service Commission, West Bengal has been pleased to impose the penalty of withholding of 3 (three) annual increments without cumulative effect upon Md. Shafiullah Gazi in terms of rule 8 (ii) of the West Bengal Services (Classification, Control & Appeal) Rules, 1971; AND WHEREAS in an analogous case (WPST No. 221 of 2010) Hon'ble High Court has been pleased extend benefit of promotion to be effective from the date of expiry of punishment period with notional benefit in the promotional post from the day when he is given promotion. NOW, THEREFORE, the Governor has been pleased to order for inflicting the penalty of with holding of 3 (three) annual increments without cumulative effect upon Md. Shafiullah Gazi in terms of rule 8 (ii) of the West Bengal Services (Classification, Control & Appeal) Rules, 1971 with the stipulation that Md. NOW, THEREFORE, the Governor has been pleased to order for inflicting the penalty of with holding of 3 (three) annual increments without cumulative effect upon Md. Shafiullah Gazi in terms of rule 8 (ii) of the West Bengal Services (Classification, Control & Appeal) Rules, 1971 with the stipulation that Md. Gazi will be considered for promotion notionally from the due date (the date from which he would have been otherwise eligible for promotion to SRO-II had there been no. D.P. against him) and effectively from the expiry of 3 (three) years penalty periods, if otherwise eligible. This order will be effective from the date of issue of this order. Sd/- R.D. Meena Principal Secretary to the Government of West Bengal Memo. No. 111/1-A&P Dated Kolkata, the 5th January, 2012 Copy with the ORIGINAL ORDER forwarded to the Director of Land Records & Surveys, West Bengal, 35, Gopal Nagar Road, Kolkata - 700 027 for information and for favour of service of the Original Order upon Md. Shafiuilah Gazi, Revenue Officer under proper receipt. The Service Return may kindly be sent to this Department in due course. Sd/- Assistant Secretary to the Government of West Bengal" 20. After proposing a penalty and submission of the representation by the employee concerned with regard to the said proposal, Disciplinary Authority should pass final order of punishment in terms of Sub-Rule 14 of Rule 10 of the West Bengal Services (Classification, Control and Appeal) Rules, 1971. 21. The Disciplinary Authority however, without doing so, proposed enhancement of punishment in the present case. There is no provision in the aforesaid Rules of 1971 to take repeated advices from the Public Service Commission, West Bengal. 22. In the order dated 5th February, 2010, it has been specifically mentioned that on going through the enquiry report along with the supporting documents, Governor, being the Disciplinary Authority, was pleased to agree with the findings of the Inquiring Authority and in consultation with the Public Service Commission, West Bengal proposed penalty of withholding of two annual increments of the petitioner without cumulative effect and the petitioner herein was asked to submit representation. Therefore, after submission of the representation, there was no scope for the Disciplinary Authority to consult the Public Service Commission, West Bengal on the proposed punishment. 23. Therefore, after submission of the representation, there was no scope for the Disciplinary Authority to consult the Public Service Commission, West Bengal on the proposed punishment. 23. In the instant case, the Disciplinary Authority, upon considering the revised advice of the Public Service Commission, West Bengal decided to impose enhanced penalty of withholding of 3 annual increments of the petitioner without cumulative effect which, in our opinion, is not permissible under the Rules of 1971. 24. The learned Tribunal quashed the subsequent order of the Disciplinary Authority dated 5th January, 2012 on the ground that no notice was served upon the petitioner intimating the intention of the authority to enhance the punishment in consultation with the Public Service Commission, West Bengal afresh. 25. We are, however, of the opinion that the Disciplinary Authority had no occasion in the facts of the present case to take any decision regarding enhancement of the punishment in consultation with the Public Service Commission, West Bengal afresh since the said Disciplinary Authority on the earlier occasion in consultation with the Public Service Commission, West Bengal and upon considering the identical materials on record proposed lesser punishment and directed the petitioner to submit a representation against the said proposed punishment. Upon considering the representation of the petitioner, the Disciplinary Authority either could exonerate the petitioner or could impose penalty which was proposed by the order dated 5th February, 2010 but there was no scope to impose enhanced punishment on the petitioner herein. 26. For the aforesaid reasons, the direction issued by the learned Tribunal by the impugned order dated 2nd August, 2012 granting liberty for imposition of the enhanced punishment on the petitioner upon serving fresh notice cannot be sustained and the same is therefore, set aside. 27. This writ petition, therefore, stands allowed. 28. There will be, however, no order as to costs. 29. Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking. Chatterjee, J. - I agree. Writ petition is allowed.