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2015 DIGILAW 292 (CAL)

Swapan Kumar Bankura v. Union of India

2015-03-27

PRANAB KUMAR CHATTOPADHYAY, SUDIP AHLUWALIA

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JUDGMENT : 1. The petitioner herein filed the original application before the Central Administrative Tribunal, Calcutta Bench in O.A. 350/01632/2014 challenging the validity and/or legality of the disciplinary proceedings by issuing the charge sheet and ultimately the second show cause notice was issued proposing to remove the petitioner from service. The said application could not be decided by an appropriate Division Bench of the learned Tribunal on account of non-availability of a judicial member. 2. This Court by the earlier order dated 8th January, 2015 decided to adjudicate the grievances of the petitioner raised before the learned Tribunal on merits so that the interests of the petitioner are not affected for non-availability of the appropriate Division Bench of the learned Tribunal. 3. Accordingly, parties were granted liberty to file affidavits in the matter. Today, the matter has been listed for final hearing. 4. Mr. Kishore Dutta, learned advocate representing the petitioner submits that the disciplinary proceedings could not have been initiated against the petitioner by issuing the charge sheet wherein it was alleged that the petitioner herein initiated and concluded the enquiry under Section 7A of E.P.F & M.P. Act, 1952 by exercising powers beyond his jurisdiction. 5. The three charges levelled against the petitioner herein are virtually identical in nature wherein the only allegation has been levelled against the said petitioner that while conducting the enquiry under sub-section (1) of Section 7A of the E.P.F. & M.P. Act, 1952, which is deemed to be a judicial proceedings, said petitioner exercised powers beyond his jurisdiction. 6. Mr. Dutta also submits that the petitioner herein conducted the enquiry proceedings in exercise of judicial power vested under the statute and while discharging the aforesaid functions if any erroneous order was passed by the petitioner, then the authorities concerned should approach the superior legal forum to upset the same instead of initiating disciplinary proceedings against the petitioner. 7. An enquiry conducted by the petitioner herein under Section 7A(1) of the Act should be deemed to be a judicial proceedings. 8. 7. An enquiry conducted by the petitioner herein under Section 7A(1) of the Act should be deemed to be a judicial proceedings. 8. Sub-section (2) of Section 7A of the E.P.F. & M.P. Act, 1952 is set out hereunder:- "The officer conducting the inquiry under sub-section (1) shall, for the purposes of such inquiry have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), for trying a suit in respect of the following matters, namely:- (a) enforcing the attendance of any person or examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavit; (d) issuing commissions for the examination of witnesses, and any such inquiry shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purpose of section 196 of the Indian Penal Code (45 of 1960)." (Emphasis supplied) 9. There is no dispute that the enquiry conducted by the petitioner herein under Section 7A (2) shall be deemed to be a judicial proceeding and therefore, no disciplinary action can be initiated against the petitioner for taking any decision under Section 7A of E.P.F. & M.P. Act, 1952, unless it is alleged that the petitioner took any decision pursuant to corrupt motive or an improper and illegal motive to oblige someone or to take revenge on someone. 10. In the present case, it was never alleged that the petitioner herein took any decision pursuant to corrupt motive or an improper motive to oblige someone or in order to take revenge on someone. If any erroneous order has been passed by the petitioner while discharging judicial function then the concerned authority should apply before the appropriate superior legal forum for correcting such decision. 11. In the instant case, however, we find that the petitioner himself initiated proceedings under Section 7C of the said Act, which is still pending. Therefore, it cannot be said that the petitioner herein acted pursuant to any corrupt motive or an improper motive to oblige someone or to take revenge on someone. 12. Mr. Dutta relies on a decision of the Hon'ble Supreme Court in the case of Union of India & Another v. R.K. Desai reported in 1993 SCC (L&S) 318. Therefore, it cannot be said that the petitioner herein acted pursuant to any corrupt motive or an improper motive to oblige someone or to take revenge on someone. 12. Mr. Dutta relies on a decision of the Hon'ble Supreme Court in the case of Union of India & Another v. R.K. Desai reported in 1993 SCC (L&S) 318. The principles decided by the Hon'ble Supreme Court in the aforesaid case are very much applicable in the facts of the present case. 13. Mr. Partha Sarathi Bose, learned advocate representing the respondent authorities submits that the proceedings can be initiated against the delinquent officer and charge sheet has already been issued by the competent authority. 14. Mr. Bose relies on a decision of the Hon'ble Supreme Court in the case of Union of India & Others v. K.K. Dhawan reported in A.I.R. 1993 S.C. 1478. The aforesaid decision, in our opinion, is not at all applicable in the facts of the present case. 15. In the aforesaid decision Hon'ble Supreme Court specifically held that the Government is not precluded from taking any decision for violation of the conduct rules even with regard to exercise of quasi judicial powers. The disciplinary action has not been taken in this case against the petitioner by issuing the charge sheet for violation of any conduct rules. 16. Mr. Bose also relies on another decision of the Hon'ble Supreme Court in the case of State of West Bengal & Others v. Samar Kumar Sarkar reported in (2009) 15 SCC 444 . The aforesaid decision has also no manner of application in the facts of the present case since the legality of any departmental proceedings in relation to an officer discharging judicial/quasi judicial function was not considered by the Hon'ble Supreme Court in the aforesaid decision. 17. In the present case, undisputedly the petitioner herein conducted an enquiry under Section 7A of the said Act and exercised powers in a proceedings which should be deemed to be a judicial proceedings under Section 7A (2) of the Act, 1952. We are of the opinion that if the petitioner even assuming exercised his powers beyond his jurisdiction, then the same cannot be a ground for initiation of disciplinary proceedings specially when we find that the said petitioner himself initiated a proceeding under Section 7(C) of the Act. 18. We are of the opinion that if the petitioner even assuming exercised his powers beyond his jurisdiction, then the same cannot be a ground for initiation of disciplinary proceedings specially when we find that the said petitioner himself initiated a proceeding under Section 7(C) of the Act. 18. In absence of specific allegation regarding discharge of judicial/quasi judicial function of an officer pursuant to corrupt or improper motive, no disciplinary action can be initiated, as has been decided by the Hon'ble Supreme Court in the case Union of India & Another v. R.K. Desai (supra). 19. In the present case, going through the charge sheet we are satisfied that no corrupt motive or improper motive has been alleged against the petitioner while discharging his function under Section 7A of the Act. 20. Therefore, we are of the opinion that no misconduct has been committed by the petitioner in the present case. 21. For the aforementioned reasons, we hold that the respondent authorities should not have initiated any disciplinary proceedings against the petitioner in absence of any specific allegation of misconduct as we are satisfied that the petitioner herein exercised his judicial function under Section 7A of the Act without any corrupt or improper motive. 22. Accordingly, we quash the impugned charge sheet dated 21st April, 2011 and all steps taken by the authorities in relation to the disciplinary proceedings initiated on the basis of the aforesaid charge sheet including the second show cause notice as well as the final order dated 9th December, 2014, which has not yet been served on the said petitioner. The respondent authorities are directed to allow the petitioner to resume his duty forthwith and grant all admissible consequential service benefits. 23. Needless to mention that the original application is not required to be placed before the Division Bench of the learned Tribunal hereinafter in view of the order dated 5th January, 2015 passed by the said learned Tribunal since we have already set aside the aforesaid order dated 5th January, 2015 passed in the original application being O.A. 350/01632/2014 and quashed the entire disciplinary proceedings initiated on the basis of the impugned charge sheet dated 21st April, 2011. 24. With the above observations and directions, we dispose of the writ petition as well as the connected application without awarding any costs. 24. With the above observations and directions, we dispose of the writ petition as well as the connected application without awarding any costs. Let a photostat plain copy of this order duly countersigned by the Assistant Registrar (Court) be handed over to the learned advocate appearing for the parties on usual undertaking. Writ petition allowed.