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2015 DIGILAW 654 (CAL)

State of West Bengal v. Ashutosh Roy

2015-08-05

ASHA ARORA, NISHITA MHATRE

body2015
JUDGMENT : Nishita Mhatre, J.: 1. The short question involved in the present petition is with respect to the powers of the West Bengal Administrative Tribunal of judicial review. 2. The brief facts involved in the present case are as follows: The respondent, a Police Constable with the Kolkata Police, was suspended on 13th December, 1999 for certain acts of misconduct. A charge-sheet was issued to him on 5th June, 2000 incorporating three charges against him, namely, (i) that while on guard duty in a bank, he had unauthorisedly been absent from 8th December, 1999 to 14th December, 1999; (ii) that he was absent from the company barracks during the aforesaid period; (iii) that during the aforesaid period of absence he visited the Jalpaiguri Police Line with an ulterior motive and tried to influence prospective candidates for recruitment to the rank of Constable in Kolkata Police. The respondent submitted his reply to the aforesaid allegations. As it was not found satisfactory, an enquiry was instituted against him. Four witnesses were examined during the enquiry by the petitioners. The Enquiry Officer submitted his report on 13th September, 2000 in which he held that all the three charges were proved against the respondent. A second show cause notice was issued to the respondent. He submitted his reply which again did not find favour with the authorities. An order was issued by the disciplinary authority dismissing the respondent from service with effect from 20th August, 2001. The appellate authority confirmed the order of the disciplinary authority on 25th July, 2003. 3. The respondent challenged the order of dismissal before the West Bengal Administrative Tribunal by filing O.A. 602 of 2003. Affidavits were exchanged and the matter was heard by the Tribunal. By an order dated 13th May, 2010 the Tribunal allowed the application, partly. The Tribunal was of the view that the unauthorised absence mentioned in the charges (i) and (ii) had been proved. However, with respect to charge (iii), the Tribunal was of the opinion that it was a vague charge and that the Enquiry Officer had reached the conclusion that the charge had been proved without there being any evidence on record. Accordingly, the Tribunal found that a perverse conclusion was drawn by the Enquiry Officer. However, with respect to charge (iii), the Tribunal was of the opinion that it was a vague charge and that the Enquiry Officer had reached the conclusion that the charge had been proved without there being any evidence on record. Accordingly, the Tribunal found that a perverse conclusion was drawn by the Enquiry Officer. The Tribunal therefore ordered the petitioners to reinstate the respondent within 8 weeks from the order if the respondent had not retired from service during the pendency of the application before it. The Tribunal further directed that the respondent was entitled to continuity in service. However, as a measure of punishment for his unauthorised absence, the Tribunal denied the respondent his back wages. 4. Mr. Joytosh Majumder, the learned Counsel appearing for the State, criticised the judgment of the Tribunal on three grounds, namely, (a) that the Tribunal had overreached the boundaries prescribed by the Supreme Court while exercising the power of judicial review; (b) the Tribunal had erred in concluding that the third charge with respect to the respondent trying to influence the recruitment process had not been proved; (c) that the Tribunal could not substitute its own decision with respect to the punishment to be imposed on a delinquent employee. 5. The learned Counsel for the respondent has, on the other hand, urged that there is no need for this Court to interfere with the judgment and order of the Tribunal in exercise of its powers under Articles 226 and 227 of the Constitution of India. He submitted that the Tribunal by a well-reasoned order has found that charge (iii) had not been proved and had therefore modified the punishment imposed. He further submitted that while exercising the power of judicial review the Tribunal is empowered to reduce the punishment if it is shockingly disproportionate. According to the learned Counsel it is not necessary for the Tribunal to remand the matter to the disciplinary authority for imposing another punishment as that would unnecessarily prolong the litigation. 6. The Administrative Tribunal is a creature of the statute, namely, the Administrative Tribunals Act, 1985. According to the learned Counsel it is not necessary for the Tribunal to remand the matter to the disciplinary authority for imposing another punishment as that would unnecessarily prolong the litigation. 6. The Administrative Tribunal is a creature of the statute, namely, the Administrative Tribunals Act, 1985. The State Administrative Tribunal is empowered under Section 15 to exercise all powers and authority exercisable by all Courts except the Supreme Court immediately before the appointed day in relation to (a) recruitment to any civil service; (b) all service matters concerning a person appointed to any civil service of this State; (c) all service matters pertaining to the service of a person whose services have been placed by any local authority or corporation or other body controlled or owned by the State Government at the disposal of the State Government. The expression ‘service matters’ has been defined in Section 3(q) of the Administrative Tribunals Act, 1985. It includes issues pertaining to disciplinary matters. 7. Powers of judicial review which the Tribunal can exercise have been enunciated in several judgments of the Supreme Court. In B. C. Chaturvedi vs. Union of India & Ors reported in (1995) 6 SCC 749 , K Ramaswamy, J. while speaking for himself, B. P. Jeevan Reddy, J. has observed thus: 12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. 13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to re-appreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued. (Emphasis supplied) 8. Taking a conspectus of the earlier decisions of the Supreme Court the K. Ramaswamy, J. observed in para 18: 18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. (Emphasis supplied) 9. In a concurring opinion B. L. Hansaria, J. spoke thus: 22. The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of a long line of decisions of this Court, to which reference is not deemed necessary, as the position is well settled in law. It may, however, be stated that this power of moulding relief in cases of the present nature can be invoked by a High Court only when the punishment/penalty awarded shocks the judicial conscience. 23. It deserves to be pointed out that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh case that the High Courts too can exercise power of review, which inheres in every court of plenary jurisdiction. I would say that power to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like a High Court. Of course, this power is not as wide as which this Court has under Article 142. That, however, is a different matter. (Emphasis added) 10. I would say that power to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like a High Court. Of course, this power is not as wide as which this Court has under Article 142. That, however, is a different matter. (Emphasis added) 10. After considering the provisions of Section 11-A of the Industrial Disputes Act, 1947 the learned Judge observed thus: “I would, therefore, think that but for the self-imposed limitation while exercising power under Article 226 of the Constitution, there is no inherent reason to disallow application of judicial mind to the question of proportionality of punishment/penalty. But then, while seized with this question as a writ court interference is permissible only when the punishment/penalty is shockingly disproportionate.” 11. In State of Tamil Nadu & Anr vs. S. Subramaniam reported in (1996) 7 SCC 509 after referring to judgment in B. C. Chaturvedi’s case (supra), the Court observed in para 5 thus: 5. The only question is: Whether the Tribunal was right in its conclusion to appreciate the evidence and to reach its own finding that the charge has not been proved. The Tribunal is not a court of appeal. The power of judicial review of the High Court under Article 226 of the Constitution of India was taken away by the power under Article 323-A and invested the same in the Tribunal by Central Administrative Tribunals Act. It is settled law that the Tribunal has only power of judicial review of the administrative action of the appellant on complaints relating to service conditions of employees. It is the exclusive domain of the disciplinary authority to consider the evidence on record and to record findings whether the charge has been proved or not. It is equally settled law that technical rules of evidence have no application for the disciplinary proceedings and the authority is to consider the material on record. In judicial review, it is settled law that the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. In judicial review, it is settled law that the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the view of the Court or Tribunal. When the conclusion reached by the authority is based on evidence, Tribunal is devoid of power to reappreciate the evidence and would (sic) come to its own conclusion on the proof of the charge. The only consideration the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. This is the consistent view of this Court vide B.C. Chaturvedi v. Union of India, State of T.N. v. T.V. Venugopalan (SCC para 7), Union of India v. Upendra Singh (SCC at para 6), Govt. of T.N. v. A. Rajapandian (SCC para 4) and B.C. Chaturvedi v. Union of India (SCC at pp. 759-60). 12. It will be useful to refer to the judgment in the case of Chairman-cum-Managing Director, Coal India Ltd & Anr vs. Mukul Kumar Choudhuri & Ors reported in AIR 2010 SC 75 . The facts in this case were similar to the facts in the present case. The employee was found guilty of misconduct of (i) absenting himself without leave; (ii) overstaying the sanctioned leave for more than consecutive days; and (iii) desertion of his job and failure to maintain integrity and devotion to duty. The employee was removed from service with immediate effect. The order was challenged by the employee before this Court. The learned single Judge directed the reinstatement with continuous service of the employee while denying him back wages. The Supreme Court found that there were no procedural lapses illegalities or irregularities in the conduct of the disciplinary proceedings. The charge of the unauthorised absence for more than six months having been admitted by the delinquent had clearly been established. The learned single Judge directed the reinstatement with continuous service of the employee while denying him back wages. The Supreme Court found that there were no procedural lapses illegalities or irregularities in the conduct of the disciplinary proceedings. The charge of the unauthorised absence for more than six months having been admitted by the delinquent had clearly been established. The Supreme Court then referred to several of its earlier judgments including State of Andhra Pradesh & Ors vs. Chitra Venkata Rao reported in (1975) 2 SCC 557 where the Court had considered the scope of judicial review in dealing with the departmental enquiries. The Court had observed in that judgment that if a finding of fact is based on no evidence, it should be regarded as an error of law which can be corrected by a writ of certiorari. It was further held that a finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The Court in Chairman-cum-Managing Director, Coal India Ltd.’s case (supra) observed in para 26 thus: 26. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company's Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if the Respondent No. 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months. 13. The Court noted the exposition of the doctrine of proportionality in its earlier decision in Ranjit Thakur vs. Union of India & Ors reported in AIR 1987 SC 2386 that the sentence or punishment has to suit the offence and the offender. It should not be vindictive or unduly harsh. The punishment should not be disproportionate so as to shock the conscience of the Court as that itself would exhibit conclusive evidence of bias. It should not be vindictive or unduly harsh. The punishment should not be disproportionate so as to shock the conscience of the Court as that itself would exhibit conclusive evidence of bias. The doctrine of proportionality as a part of the concept of judicial review would ensure that even on an aspect which is otherwise within the exclusive province of the disciplinary authority, which was the Court martial in Ranjit Thakur (supra) if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. The Court held that irrationality and perversity are recognised grounds of judicial review. Having found that the punishment of removal from service for absence for six months was unduly harsh and grossly disproportionate to the allegations against him, the Court noted that normally it would have sent the matter back to the appropriate authority for reconsideration on the question of punishment. But it did not do so in the facts and circumstances of that case since in the opinion of the Court denial of back wages was sufficient punishment for the absence of six months. 14. A similar view has been reiterated in the case of Deputy Commissioner, Kendriya Vidyalaya Sangathan & Ors vs. J. Hussain reported in (2013) 10 SCC 106 . However, in this case the Court observed that even if the punishment was found to be disproportionate by the Court, it could only refer back to the disciplinary authority to take an appropriate view by imposing a lesser punishment rather than directing the exact nature of penalty to be given. 15. These judgments, in our opinion, restate the well-settled principles of law regarding judicial review. A Tribunal or indeed the High Court can judicially review an order of the disciplinary authority and quash it if (a) the order has been passed after procedural lapses, illegalities and irregularities; (b) the conclusion is based on no evidence or evidence which cannot possibly lead to the conclusion reached, thus indicating a perverse order; or (c) where the punishment shocks the conscience of the Court as it is not commensurate with the misconduct proved against the delinquent. 16. The Tribunal, in our opinion, has not overstepped the confines of judicially reviewing the order passed against the respondent. 16. The Tribunal, in our opinion, has not overstepped the confines of judicially reviewing the order passed against the respondent. It has concluded that the third charge against the respondent of interfering with the recruitment process had not been proved as there was no evidence at all. The question was not about the sufficiency of evidence, but of there being no evidence led by the State to prove that charge. The Tribunal found that the State had not examined any of the candidates before the Enquiry Officer and that witnesses of the State had failed to identify the respondent. The Tribunal came to the conclusion that mere presence of the respondent near the Jalpaiguri Police Line could not lead to a presumption that he was involved in influencing the recruitment process. It noted that the respondent lived near the Police Lines and therefore his presence at the place where he was spotted could not be said to be because he desired to influence the selection process. We have no reason to interfere with this finding of the Tribunal. The only charge thus proved against the respondent is that he was absent for 8 days from his duty as a guard in a bank and was not present in the barracks as well during that period. 17. Mr. Majumder, the learned Counsel for the petitioners has argued that even if one charge is proved against the delinquent employee the tribunal ought not to interfere with the punishment. He drew our attention to the fact that two charges had been proved against the respondent and therefore the tribunal had erred in interfering with the punishment by labelling it as shockingly disproportionate. He fortified this submission by relying on the State of U. P. & Ors vs. Nand Kishore Shukla & Anr reported in (1996) 3 SCC 750 . A Bench of two learned Judges of the Supreme Court held that even if one of the charges is proved and is sufficient for imposing the penalty which the disciplinary authority or the appellate authority has found suitable, the Court would not interfere with that part of the order. The proportionality of the punishment cannot be gone into by the Court. The proportionality of the punishment cannot be gone into by the Court. However this view regarding proportionality of punishment is contrary to the opinion expressed in B. C. Chaturvedi (supra) by three learned judges of the Supreme Court, one of the judges being a party to both decisions. 18. The Tribunal has found the punishment of dismissal shockingly disproportionate to the charges which have been proved and has directed reinstatement with continuity of service. It must be noted here that the respondent was dismissed from service in the year 2001. The Tribunal passed its order 9 years later. Though the order of the Tribunal has not been couched in so many words, obviously the Tribunal was of the view that this was an exceptional case where it was necessary for it to modify the punishment rather than cause greater agony to the respondent who had been on tenterhooks with respect to his job for 9 years. The Tribunal has taken into account the delays in Court and has decided to modify the punishment into denying the back wages of 9 years for the absence of 8 days. 19. We therefore see no reason to interfere with the decision of the West Bengal Administrative Tribunal under the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. The writ petition is therefore dismissed with no order as to costs. 20. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.