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2014 DIGILAW 626 (CAL)

Md. Afzal Hussain v. Coal India Limited

2014-07-14

TAPABRATA CHAKRABORTY

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JUDGMENT Tapabrata Chakraborty, J. This writ application has been preferred challenging the departmental proceeding initiated against the petitioner which culminated in an order of dismissal dated 23rd April, 2012 passed by the General Manager (E & M), ECL, HQ. Sanctoria. The facts, in a nutshell, are that the petitioner was appointed on 5th May, 1983 as Security Guard at Poniati workshop under Eastern Coalfields Limited (hereinafter referred to as the ECL) which is a subsidiary of Coal India Limited. The petitioner was issued a charge-sheet dated 30th December, 1991, the Manager, Poniati workshop, ECL stating inter alia that on the night of 9th December, 1991, the petitioner was on patrolling duty from 9 p.m. to 5 a.m. and on that night during duty, the petitioner along with Sri R.K. Sharma, Sri Lala Nunia, Imtiaz Mian and Pritam Singh threatened Sri Hardeo Jadav and forcibly snatched the keys of the gates including that of electrical workshop and from a transformer, which was under repair, 200 Kgs. of copper coil wire were removed and stolen which were subsequently recovered by the Police from the quarter of Sri Pritam Singh on 23rd December, 1991. The petitioner duly replied to the said charge-sheet and thereafter an order of dismissal was communicated to the petitioner on 3rd October, 1992. Against the said order of dismissal the petitioner preferred a statutory appeal but the same was not disposed of. Challenging the said order of dismissal the petitioner preferred a writ application being W.P. No.1960 of 2000 and the same was disposed of by a judgment dated 11th February, 2004 observing inter alia that the authority would be at liberty to start the proceeding from the stage of the enquiry report. In the said judgment it was categorically observed that the entire exercise should be completed within two months from the date of communication of this judgment. Upon communication of the said judgment, the petitioner was supplied the enquiry report with a request to answer to the second show-cause notice. The same was accordingly answered by the petitioner by a representation dated 28th June, 2004. Upon communication of the said judgment, the petitioner was supplied the enquiry report with a request to answer to the second show-cause notice. The same was accordingly answered by the petitioner by a representation dated 28th June, 2004. In the said reply the petitioner stated, inter alia, that the Criminal Case being G.R. No.1734 of 1991 which was initiated against the petitioner for the alleged theft in the night of 9th December, 1991 was disposed of by the Judicial Magistrate, 1st Court, Asansol on 7th March, 2000 through an order of acquittal in favour of the petitioner. After the service of the said reply dated 28th June, 2004, the respondent-authorities maintained a deceptive silence and took no steps towards conclusion of the disciplinary authority as directed by the judgment dated 11th February, 2004. Furthermore, in spite of repeated representations the respondents withheld the payment of subsistence allowance and as such the petitioner approached this Court through the instant writ application. During pendency of the instant writ application the petitioner was dismissed by an order dated 23rd April, 2012 and the same was allowed to be brought on record by the Court through a supplementary affidavit. Placing reliance upon the averments made in the writ application and the supplementary affidavit, Mr. Partha Ghosh, learned advocate appearing for the petitioner submits that through the charge-sheet dated 30th December, 1991 a common disciplinary proceeding was conducted against the persons mentioned in the said charge-sheet, namely, Sri R.K. Sharma, Sri Lala Nunia, Imtiaz Mian and Pritam Singh and except the petitioner all others were reinstated. Mr. Ghosh argues that the order of dismissal dated 23rd April, 2012 was issued without taking note of the fact that in the criminal proceeding initiated against the petitioner on the basis of the selfsame charges alleged against the petitioner in the departmental proceeding, the petitioner was acquitted by a judgment dated 7th March, 2000. According to Mr. Ghosh as the competent Criminal Court, on the self-same charges, has passed an order of acquittal, the findings of the Criminal Court ought to have prevailed over the disciplinary authority. Mr. Ghosh further submits that in the judgment dated 11th February, 2004 this Court categorically directed the conclusion of the disciplinary authority within two months from the date of communication of this order. Mr. Ghosh further submits that in the judgment dated 11th February, 2004 this Court categorically directed the conclusion of the disciplinary authority within two months from the date of communication of this order. The respondents did not grant any weightage towards the time fixed and concluded the disciplinary proceeding through issuance of the impugned order dated 23rd April, 2012, i.e., more than 8 years after issuance of the judgment dated 11th February, 2004 and that as such the order of dismissal being derogatory to the dictum of the Hon’ble Court, is not sustainable in the eye of law. According to Mr. Ghosh, the Agent of the Colliery appointed the enquiry officer and the self-same Agent passed the earlier order of dismissal dated 3rd October, 1994 though the said person is not the competent authority, under the standing orders, to issue the order of dismissal. Mr. Ghosh further draws the attention of this Court to the enquiry report and submits that no witness was produced to corroborate the alleged charges against the petitioner and the enquiry officer has proceeded treating the statement of the presenting officer to be sufficient to establish the alleged charges. The enquiry report further reveals that the presenting officer did not produce any document or management witness in course of the enquiry though opportunities were given to him. The enquiry officer appears to have proceeded only on the basis of the statement made by the presenting officer observing further that the petitioner did not cross-examine the presenting officer and that such non-examination corroborates the alleged charges. The sole issue which weighed with the enquiry officer was that he was arrested with the police in connection with the alleged theft on 19th December, 1991. Mr. Ghosh further argues that in the dismissal order dated 23rd April, 2012, there is no consideration of the issues as agitated by the petitioner in his reply dated 28th June, 2004 to the effect that the criminal proceeding initiated on the basis of the self-same charges was disposed of by ordering inter alia, that the petitioner had not been found guilty of the offence under Section 379/411 of Indian Penal Code. In support of his arguments, Mr. Ghosh has placed reliance upon the following judgments :- 1. AIR 2006 SC 2129 (G.M. Tank -Vs- State of Gujarat & Anr.). 2. In support of his arguments, Mr. Ghosh has placed reliance upon the following judgments :- 1. AIR 2006 SC 2129 (G.M. Tank -Vs- State of Gujarat & Anr.). 2. (2011) 4 CAL LT 303 (HC) Gopi Ballav Sarkar –vs- Food Corporation of India & Ors.). 3. (2011) 1 WBLR 337 (State of West Bengal -Vs- Vidyasagar Pandey) 4. (2012) 9 SCC 685 (State NCT of Delhi –Vs- Ajay Kumar Tyagi (Paragraph 24). 5. 2006 (3) Supreme 393 M.V. Bijlani –Vs- Union of India & Ors. (Paragraph 16). The judgments delivered in G. M. Tank (Supra), Gopi Ballav Sarkar (Supra), State of West Bengal (Supra) and State NCT of Delhi (Supra) have been relied upon by Mr. Ghosh in support of the contention to the effect that when the departmental proceeding and the criminal proceeding are based on identical and similar set of facts and when the person is acquitted and exonerated in the charges of the criminal proceeding, it would not be expedient to continue the departmental enquiry on the very same charges. The judgment delivered in the case of M.V. Bijlani (Supra) was relied upon in support of the petitioner’s contention to the effect that long pendency of the disciplinary proceeding has evidently prejudiced the petitioner. Placing reliance upon the averments made in the affidavit-in-opposition filed by the respondent nos.2 and 5, Mr. Majumder, learned advocate appearing for the respondents submits that the failure to conclude the proceeding within the time frame as specified in the judgment dated 11th February, 2004 cannot malign the entire proceeding since the specification of the time frame does not stand qualified through any default clause and that as such the direction contained in the judgment dated 11th April, 2004 was directory in nature. Furthermore, the judgment in the earlier writ application was delivered on 11th February, 2004 and the same was communicated sometimes prior to 28th June, 2004 when the petitioner filed the reply and that though the said time frame expired within the month of September, 2004, the petitioner has agitated the said issue through the instant writ application affirmed almost 5 years thereafter, on 29th April, 2009. The petitioner, having himself failed to approach this Court immediately after expiry of such period of 2 months, cannot argue that the expiry of the period specified warrants dismissal of the entire proceeding. Mr. The petitioner, having himself failed to approach this Court immediately after expiry of such period of 2 months, cannot argue that the expiry of the period specified warrants dismissal of the entire proceeding. Mr. Majumder submits that in terms of the order dated 11th February, 2004, the petitioner was reinstated and was suspended pending enquiry with immediate effect vide memorandum date 12th June, 2004. Mr. Majumder further submits that the arguments of Mr. Ghosh to the effect that the proceeding was dropped against the other persons included in the charge-sheet and that the charges framed against the petitioner could not have been proved in the absence of corroboration of the same through the documents produced by the employer, cannot be agitated in the instant writ application since the said grounds were also there in the earlier writ application which culminated in an order of remand. In support of his arguments, Mr. Majumder places reliance upon the following judgments :- 1. Nelson Motis –vs- Union of India and another, reported in (1992) AIR (SC) 1981. 2. Senior Superintendent of Post Offices, Pathanamthitta and others –vs- A. Gopalan, reported in (1999) AIR (SC) 1514. I have heard the submissions made by the learned advocates appearing for the respective parties and I have considered the materials on record. The categoric averments made in the writ application to the effect that the charges brought against the petitioner in the departmental proceeding and criminal proceeding are similar and that the persons named in the charge-sheet along with the petitioner were subsequently reinstated and that the employer failed to produce any witness to corroborate the alleged charges, have not been disputed by the respondents in the affidavit-in-opposition. A perusal of the enquiry report reveals that no document was produced in support of the alleged charges against the petitioner and no witnesses were examined and the enquiry officer has proceeded on the basis of the statement made by the presenting officer accepting the same to be sacrosanct. Such procedure as adopted by the enquiry officer is unknown to the norms of service jurisprudence. There is absolutely no evidence in the said report drawing the nexus between the action alleged and the person charged. The expression “sufficiency of evidence” postulates the existence of some evidence which links the charged officer with the misconduct alleged against him. Such procedure as adopted by the enquiry officer is unknown to the norms of service jurisprudence. There is absolutely no evidence in the said report drawing the nexus between the action alleged and the person charged. The expression “sufficiency of evidence” postulates the existence of some evidence which links the charged officer with the misconduct alleged against him. The said report is thus absolutely perverse inasmuch as the findings therein do not stand fortified through any evidence on record. Indisputably, a departmental proceeding is a quasi-judicial proceeding and the enquiry officer performs a quasi-judicial function and that the charges levelled against the delinquent officer must be found to have been proved. 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 has proceeded on the basis of mere suspicion and with a mindset to the effect that as the petitioner was arrested in connection with the incident on 9th December, 1991, the petitioner was guilty. Suspicion, however high may be, can under no circumstances be held to be a substitute for legal proof. A perusal of the final order of dismissal dated 23rd April, 2012 would reveal that there is no discussion of the points agitated by the petitioner through his reply dated 28th June, 2004. It is also well settled that even an order of affirmance must contain some reason. But the said order of dismissal does not stand supported with any reason whatsoever and it has been issued reiterating the findings of the enquiry officer. There is no reflection of the disciplinary authority’s application of mind and the petitioner has been dismissed only on the basis of recording of a line to the effect that concerned authority is amply satisfied that the charges have been proved beyond doubt. In the order of punishment the disciplinary authority has found the petitioner to be guilty of the Clauses 17(I)(a), 17(I)(q) and 17(I)(r) of the model standing order. The allegations of theft, fraud, dishonesty, breach of regulations and threat, abuses or assaults are not sustainable in view of the fact that the self-same allegations were dealt with by the competent Criminal Court and was found to be unsustainable. The allegations of theft, fraud, dishonesty, breach of regulations and threat, abuses or assaults are not sustainable in view of the fact that the self-same allegations were dealt with by the competent Criminal Court and was found to be unsustainable. The judgment relied upon by the respondents in the case of Nelson Motis is distinguishable on facts inasmuch as in the same, acts which led to the notation of the disciplinary proceeding were not exactly the same which were the subject matter of the criminal case. However, the argument of Mr. Ghosh to the effect that the issuance of the final order of punishment much beyond the time specified in the earlier judgment dated 11th February, 2004, maligns the entire proceeding, is not sustainable since the petitioner himself approached the Court in the year 2009 when the time fixed by the judgment expired sometimes since in the month of September, 2005. The judgment delivered in the case of Senior Superintendent of Post Offices (Supra) as relied upon the respondents, is also distinguishable on facts inasmuch as the disciplinary proceeding was on two charges – (I) Fraudulent withdrawal of Rs.8,000/- ; (II) Failure to account for the amount of Rs.379/- and Rs.799/-realized as customs duty and that in the criminal Court the delinquent was prosecuted only in respect of the offences disclosed in the first charge. The entire disciplinary proceeding against the petitioner smacks of bias and closed mind. The enquiry authority and the disciplinary authority have been swayed by a preconceived notion that the petitioner was arrested in respect of the incident of 9th December, 1991 and that as such he is guilty of the charges. Such error in the decision making process warrants intervention of the Hon’ble Court in exercise of its power of judicial review. For the forgoing reasons, the impugned charge-sheet dated 30th December, 1991, the impugned enquiry report dated 26th July, 1993 and the final order of dismissal date 23rd April, 2012 and as a matter of fact, the entire disciplinary proceeding initiated on the basis of the aforesaid charge-sheet dated 30th December, 1991, are set aside and quashed. The respondents are directed to reinstate the petitioner within 4 weeks from the date of communication of this order. The respondents are directed to reinstate the petitioner within 4 weeks from the date of communication of this order. The said respondents are further directed to go on paying the petitioner’s monthly salaries and other allowances as he could have got had he been in service all along till date. 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 30th December, 1991 and the order of dismissal dated 3rd October, 1994 was set aside by this Court, with direction upon the respondents to proceed from the stage of the enquiry report, by this Court’s judgment dated 11th February, 2004 and the proceedings thereafter were kept pending for a long period of 8 years. 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 6 weeks from the date of communication of this order. With such observations and directions, the writ application and the connected application thereto are all disposed of. In the facts of the present case, there will be no order as to costs.