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2014 DIGILAW 65 (CAL)

Anil Kumar Prasad v. Food Corporation of India

2014-01-29

ARINDAM SINHA

body2014
JUDGMENT 1. The writ petitioner was appointed as an AGIII(Depot) in the Food Corporation of India under the Senior Regional Manager, West Bengal in the year 1997, as a schedule tribe candidate. By a memorandum dated 10th February, 2004 an article of charge was framed against him being that he had obtained appointment on production of a schedule tribe caste certificate in his favour which later came to be detected as a manufactured and forged document and thus violated regulations 31(a), 32(A(1), (4), (5) and (30) of the FCI Staff Regulations, 1971 (as amended). An enquiry was held and report thereof dated 10th March, 2005 made. It appears from the said report that the inquiry officer came to the finding that the caste certificate bearing page No. 6027 was issued in the name of one Sri Labeshwar Murmu as would appear from the documents produced in evidence and as such in his view the prosecution had been successful in establishing the allegation contained in the first part of the document exhibited as P2 being the letter dated 17th December, 2003 from the office of the S.D.O., Asansol to the District Manager Food Corporation of India. The Inquiry Officer, however, went on to find that in his opinion the charge that the caste certificate produced by the charged officer was manufactured and forged could not be established by the prosecution and went on to hold that the charge framed against the writ petitioner was proved partially to the extent reported. 2. The disciplinary authority thereafter by its order dated 5th October, 2005 agreed with the findings of the inquiry officer as embodied in his report. The said authority’s considered view was that, inter alia, the charge was proved beyond any reasonable doubt that the writ petitioner had produced a fake scheduled tribe caste certificate to avail himself of employment in F.C.I. Therefore, in exercise of power conferred upon the disciplinary authority by regulation 59(4) of the F.C.I. Staff Regulations, 1971 (as amended) the said authority imposed the penalty of dismissal from service upon the writ petitioner. 3. The writ petitioner has come up by this writ petition challenging the said charge-sheet, inquiry proceedings as well as the order of the disciplinary authority. 3. The writ petitioner has come up by this writ petition challenging the said charge-sheet, inquiry proceedings as well as the order of the disciplinary authority. It appears that an appeal though had been preferred by the writ petitioner but the writ petitioner has come up in the meantime with the challenge that the disciplinary proceedings culminating in the order of dismissal was in violation of principles of natural justice. 4. Mr. Bhattacharyya, learned advocate appearing on behalf of the writ petitioner submitted that the letter being the said exhibit ‘P2’ which was held to be partially proved by the inquiry officer was itself a doubtful document. It was because of that letter that the disciplinary proceedings were initiated against his client. It would appear on the face of that letter that it was signed as for the Sub-Divisional Officer, Asansol on a date preceding the date of the letter. Furthermore, the specific plea of his client to call the said S.D.O., Asansol, whose signature appears on the caste and for whom the said letter dated 17th December, 2003, exhibit –‘P2’ was signed the date before, was refused by the inquiry officer. This was in gross violation of a fair opportunity to defend the charge levelled against his client. He further drew my attention to the inquiry report, where according to him, in spite of best evidence not being taken, the inquiry officer had still come to the finding that the charge was partially proved. He submitted that when the charge relates to a document being forged a finding of partial proof of such charge was absurd. A document according to him would be found to be either genuine or forged. Mr. Bhattacharyya relied on the following decisions for the proposition that denial of opportunity to the defence to lead evidence amounted to a serious breach in the procedure of giving a fair opportunity of hearing. a) AIR 1968 Supreme Court 158 (State of U.P. and another – vs – C.S. Sharma); b) AIR 1963 Madhya Pradesh 115 (DB) (Govind Shankar – vs – State of Madhya Pradesh and another); and c) 1969 LAB. I.C. 773 (S.N. Sur – vs – Divisional Superintendent Eastern Railway and others). 5. Mr. a) AIR 1968 Supreme Court 158 (State of U.P. and another – vs – C.S. Sharma); b) AIR 1963 Madhya Pradesh 115 (DB) (Govind Shankar – vs – State of Madhya Pradesh and another); and c) 1969 LAB. I.C. 773 (S.N. Sur – vs – Divisional Superintendent Eastern Railway and others). 5. Mr. Chattopadhyay, learned advocate appearing on behalf of the respondents submitted that a notice was subsequently issued by the inquiry officer for the Sub Divisional Officer, Asansol to present himself to give evidence in the proceedings but the said officer sent the head clerk of his office with the relevant records. From the relevant records it appeared that the page reference in the caste certificate produced by the writ petitioner corresponded to the caste certificate issued to some other person and therefore the inquiry officer had been satisfied that the caste certificate produced by the writ petitioner was a forged document. Hence, according to him, the charge was proved as held by the inquiry officer as aforesaid and that was what was relied upon and agreed with by the disciplinary authority who duly in exercise of his power awarded the punishment to the writ petitioner. He relied on the following decisions for the proposition that judicial review should be confined to matters of procedure of the disciplinary proceedings and not enter into the merits of the matter. That judicial review was not an appeal from a decision or a review of the manner in which the decision was made. a) (1996) 7 SCC 509 (State of T.N. and another – vs – S. Subramaniam); b) (1996)5 SCC 474 (State of T.N. – vs – Thiru K.V. Perumal and others); and c) (1995)6 SCC 750 (Union of India and another – vs – B.C. Chaturvedi). 6. I do find from the inquiry report that the prayer of the writ petitioner, inter alia, that the S.D.O holding office in 1988 in Asansol Sub Division be produced to give evidence was not allowed. The inquiry officer reported that the S.D.O., Asansol or his authorised signatory of the said letter dated 17th December, 2003 tendered as exhibit – ‘P2’ did not personally appear in the inquiry proceeding. Furthermore, it appears that the inquiry officer was partly convinced that the charge was proved. The inquiry officer reported that the S.D.O., Asansol or his authorised signatory of the said letter dated 17th December, 2003 tendered as exhibit – ‘P2’ did not personally appear in the inquiry proceeding. Furthermore, it appears that the inquiry officer was partly convinced that the charge was proved. From the report it appears that the said officer was satisfied that the caste certificate produced by the writ petitioner did not originate from the records in the office of the S.D.O., Asansol and that the genuine certificate bearing the page number had in fact been issued to another person. However, it also appears from the report that there was doubt in the mind of the inquiry officer as to whether the signatures appearing both on the caste certificate as well as the said letter dated 17th December, 2003 being annexure ‘P2’ were forged. In those circumstances, the inquiry officer reported that the charge was partially proved. The contention of the writ petitioner that such a charge cannot be held to be partially proved thus assumes significance. Furthermore, the disciplinary authority in agreeing with the findings in the inquiry report came to a positive finding that the charge was proved when the inquiry officer himself said that the charge was partially proved. In coming to the finding that the charge was proved, the disciplinary authority had to either disagree with the finding of the inquiry officer or remit the matter back to him for inquiry on that part of the charge which the inquiry officer said that the certificate produced was manufactured or forged could not be established by the prosecution. 7. In the premises, I find that the writ petitioner was denied fair opportunity of hearing. There is justifiable doubt raised as appears from the inquiry report regarding the signatures appearing in the caste certificate and the said letter dated 17th December, 2003 being exhibit ‘P2’ issued from the office of the S.D.O. In the circumstances, this court feels compelled to interfere to set aside the order of the disciplinary authority. 8. Mr. Bhattacharyya, urging the case of the writ petitioner has relied on the inquiry report and hence has abandoned his challenge to the same. In the circumstances, the order dated 5th October, 2005 made by the disciplinary authority being annexure – ‘P11’ to the writ petition is set aside and quashed. 8. Mr. Bhattacharyya, urging the case of the writ petitioner has relied on the inquiry report and hence has abandoned his challenge to the same. In the circumstances, the order dated 5th October, 2005 made by the disciplinary authority being annexure – ‘P11’ to the writ petition is set aside and quashed. It is made clear that the respondents might take such steps pursuant to the inquiry report in accordance with law within four weeks from the date of communication of this order upon them by the petitioner, failing which the petitioner will be entitled to the consequences of setting aside of the order of his dismissal from service. 9. The writ petition is allowed. There will be no order as to costs. 10. Urgent certified photocopy of this order, if applied for, will be made available to the parties subject to compliance with all requisite formalities.