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2019 DIGILAW 226 (CAL)

Gour Chandra Mondal v. State of West Bengal

2019-02-18

ABHIJIT GANGOPADHYAY

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JUDGMENT : ABHIJIT GANGOPADHYAY, J. 1. The petitioner was a Bench Clerk attached to the Court of Additional District & Sessions Judge, Diamond Harbour. It was his transferred posting. Disciplinary proceeding was initiated against him for his unauthorized absence i.e. absence without taking leave and without prior information thereof to his Controlling Officer for the period from 15.02.2014 to 19.05.2014, 07.06.2014 to 19.08.2014 and again from 23.08.2014 to till the date of order of his suspension and initiation of disciplinary proceeding against him dated 03.12.2014. 2. In the said proceeding being Proceeding Case No. 03 of 2014 after holding disciplinary proceeding, initially, a punishment of compulsory retirement was imposed on him on 13 January 2015 which was challenged by the petitioner by filing a writ application in this Court being WP No. 3738 (W) of 2013. In the said writ application this Hon'ble Court on 23.02.2015 was pleased to set aside the order of punishment and observed that the proceeding was to be started from the stage of giving opportunity to give reply by the petitioner to the charge sheet issued to him. 3. In compliance with the said order passed by this Hon'ble Court the disciplinary authority being the District Judge of the District South 24-Parganas, at Alipore appointed one Civil judge, (Senior Division) as Enquiry Officer and one Civil Judge, (Junior Division), as Presenting Officer to hold the enquiry with regard to the Articles of Charge framed against the writ petitioner employee. 4. In the said proceeding two Articles of Charge were framed. One was, in short, that the petitioner instead of discharging his duty faithfully, sincerely, and with utmost devotion absented himself from duty without prior intimation to his local Controlling Officer and thereby neglected to perform his duty as public servant and such conduct was unbecoming of a public servant ; and the other was the petitioner's absence for 270 days in three instances one after another without any prior intimation to his leave sanctioning authority, was misconduct due to unauthorized absence amounting to dereliction of duty. 5. 5. In the proceeding the petitioner submitted his written statement dated 16 May 2015, to the Enquiry Officer denying all the charges and stated that he always had intimated the leave sanctioning authority about his absence and the Learned Additional District Judge had duly received those letters for his absence and in some of those letters he prayed for leave with proper medical reason including the Doctor-certificates and finally submitted that he be exonerated from the two charges framed against him in the Proceeding Case No. 03 of 2014. 6. The Enquiry Officer considered the written statement and documents disclosed. The petitioner was also given opportunity to cross examine the complaining officer which was declined by him. The petitioner was examined, which was reduced in the form of writing. Documents were taken on record. Thus evidence was taken. 7. In the proceeding the Enquiry Officer filed its report dated 27 August 2015, holding that the plea of continuous illness for which the petitioner claimed that he was prevented from attending his office and could not discharge his duty were not believable and the charges levelled against the incumbent (i.e. the petitioner) was proved beyond doubt and he opined that the petitioner deserves punishment and was not entitled to any benefit for the period of absence. 8. In his report, on assessment of evidence, the finding on each Article of Charge was recorded with reason by the said Enquiry Officer. 9. The whole proceeding including the award of punishment has been challenged by filing the writ application. Thus, for adjudication, the report of the enquiry officer is required to be perused to see whether there is any procedural irregularity or whether observation is based on evidence or not or whether it has been passed violating the principles of natural justice etc. 10. On perusal of the said report, inter alia, the following observations of the enquiry officer have been found: (i) The petitioner filed a Medical Prescription dated 18.02.2014 which was an O.P.D. Ticket issued by State Medical Unit of Alipore Court and one Emergency Card dated 05.03.2014 issued by Kalikapur P.H.C. wherein no prescription for continuous bed- rest was found. 10. On perusal of the said report, inter alia, the following observations of the enquiry officer have been found: (i) The petitioner filed a Medical Prescription dated 18.02.2014 which was an O.P.D. Ticket issued by State Medical Unit of Alipore Court and one Emergency Card dated 05.03.2014 issued by Kalikapur P.H.C. wherein no prescription for continuous bed- rest was found. (ii) The petitioner's case that he always intimated his taking leave to his Local Controlling Officer by letters of different dates for which postal receipts showing dispatch dated 29.06.2014, 26.07.2014, 02.08.2014, 08.08.2014; 05.09.2014 and 08.09.2014 were shown by the petitioner were of no value as the petitioner failed to show any document that any such letter was at all received by the Local Controlling Officer. No A.D. Card and no postal document were produced by the petitioner to substantiate his case that the letters were received by his Local Controlling Officer. No such letter was received from the petitioner by the authority as stated by the complaining officer. (iii) Despite granting opportunity, the petitioner did not cross examine the Complaining Officer i.e. the Additional District and Sessions Judge, Diamond Harbour. The petitioner also did not call for production of alleged letters and postal articles claimed to have been sent by him on the above 6 days. (iv) The petitioner never examined any Physician who attended him for his treatment. Thus his continuous illness has not been proved. (v) The petitioner produced one prescription of one Doctor dated 20.02.2014 advising him to take rest for 15 days. (vi) He also produced papers of Kalikapur P.H.C. dated 05.03.2014 wherein the attending physician never advised him for any rest but only prescribed medicine. He produced another advice of his next visit to doctor on 29.03.2015 which shows advice of rest of only 5 days. Thereafter, treatment papers of different dates like 22.04.2014, 02.05.2014, and 24.05.2014, 11.07.2014, 05.08.2014 and 10.08.2014 of the said P.H.C. were produced by the petitioner wherein no advice was given to him for taking rest. (vii) The petitioner produced documents in support of advice of rest by one Doctor Tamal Taru Adhikary dated 08.06.2014 advising rest for two weeks and then on 23.06.2014 and 24.08.2014 for taking rest for further two weeks on each occasion and again on 08.09.2014 for further two weeks. (vii) The petitioner produced documents in support of advice of rest by one Doctor Tamal Taru Adhikary dated 08.06.2014 advising rest for two weeks and then on 23.06.2014 and 24.08.2014 for taking rest for further two weeks on each occasion and again on 08.09.2014 for further two weeks. But what was surprising was that the petitioner never disclosed any prescriptions of the said Doctor Tamal Taru Adhikary from which it could be known that the said Doctor had treated him clinically or medically with prescribed medication and issued the advice for rest. (viii) On the contrary document issued by a Medical Board comprising of Dr. A. Hossain, Dr. A Kar and Dr. S Kundu who examined the petitioner in terms of the letter by the Complaining Officer i.e. Additional District and Sessions Judge, Diamond Harbour has been produced in the proceeding wherein the Medical Board opined that at the relevant time he was fit for activities. This Medical Board was constituted in compliance of the order of the Superintendent of Diamond Harbour District Hospital dated 24.03.2014. (ix) The petitioner did not reply to the order No. 24 of the Complaining Officer dated 09.04.2014 whereby he was directed to show cause within seven days as to why his salary should not be stopped with effect from 20.02.2014. (x) This order of the said Complaining Officer has not been disputed by the petitioner in his written statement filed in the proceeding and on the contrary in his examination recorded in the proceeding the petitioner admitted that he did not reply to the said order No. 24 dated 09.04.2014. 11. From the materials before the Enquiry Officer he came to a finding that the Articles of Charge No. 1 and No.2 (which was denied by the petitioner) were substantiated. 12. The Enquiry Officer from the documents before him and from the examination of the petitioner expressed his satisfaction that the petitioner was not at all sick to such an extent which prevented him from attending his duty without any information to his Controlling authority. It is further observed by the Enquiry Officer on the basis of documents and examinations recorded that the petitioner failed to establish any reason of illness supported by the advice of rest by any competent Physician for his absence from office duty. 13. It is further observed by the Enquiry Officer on the basis of documents and examinations recorded that the petitioner failed to establish any reason of illness supported by the advice of rest by any competent Physician for his absence from office duty. 13. After holding the enquiry and on the basis of the records thereof the Enquiry Officer held that the charges levelled against the incumbent was proved beyond doubt. 14. The disciplinary authority being the District Judge, South 24-Parganas after scrutiny of the report of the Enquiry Officer along with other materials like written statement, exhibited documents, evidence recorded etc. found that there was no reason to remit the case to the enquiring authority for further enquiry and there was no reason for disagreeing with the findings of the Enquiry Officer. He proposed to impose punishment on the petitioner, as the delinquent employee, which are as follows: (a) Withholding increments for the years 2014 and 2015 as were available to him and. (b) Recovery of pecuniary loss caused by him to the Government by such negligence and breaches and orders by remaining absence unauthorised for the following period: (i) 05.03.2014 to 18.03.2014 (ii) 24.03.2014 to 19.05.2014 (iii) 07.06.2014 to 19.08.2014 (iv) 23.08.2014 to 08.01.2015 15. No objection has been raised by the petitioner in respect of this date 08.01.2015. The written statement of defence of the petitioner is on record which he submitted on 16.05.2015. In his representation dated 10.09.2015 he has not raised any objection as to this date which was categorically mentioned in the proposed punishment 31.08.2015. 16. The petitioner has alleged that his date of superannuation was 31.08.2015 and no notice of superannuation was served upon him. This allegation is not a matter to be gone into by this Court in this writ application. However, the respondent No.2 has denied the allegation in his affidavit-in-opposition stating that such notice under Memo No. 168-M dated 04.06.2014 was served upon the petitioner. 17. The petitioner has also alleged that the punishment was imposed on him when he was not a government servant as he retired in the meantime and the punishment awarded to him should be struck down. It is noted that the petitioner in his representation dated 10.09.2015 (I.e. after date of retirement i.e. 31.08.2015) never stated that the proposed punishment could not be imposed on a retired government employee. It is noted that the petitioner in his representation dated 10.09.2015 (I.e. after date of retirement i.e. 31.08.2015) never stated that the proposed punishment could not be imposed on a retired government employee. However, the disciplinary proceeding was initiated against him when he was in service and it reached to finality after the date of superannuation and there is no illegality in it and the punishment has been legally awarded. 18. In this proposed punishment letter opportunity was given to the petitioner for personal hearing but he remained absent before the disciplinary authority despite the opportunity to appear on 29 August 2015. 19. The petitioner though did not appear before the disciplinary authority on 29 August 2015, filed one representation on 10.09.2015. 20. After perusal of the representation of the petitioner dated 10.09.2015, the disciplinary authority confirmed the proposed punishment awarded to the petitioner. 21. This award of punishment is also under challenge in this writ application. 22. In the writ application the petitioner has alleged that no enquiry was held for awarding punishment to him which is a patently incorrect statement. The petitioner himself even made no such allegations in his representation filed before the disciplinary authority dated 10.09.2015. He himself participated in the enquiry. 23. The petitioner further alleged that his written statement was not considered and this shows bias of the disciplinary authority, which is again an incorrect statement. 24. The petitioner's written statement was considered; the petitioner declined to cross examine the Complaining Officer; the petitioner made his submission before the enquiry authority; the petitioner was given opportunity by the disciplinary authority for a personal hearing and as the petitioner did not appear in the personal hearing he was given an opportunity to submit representation which the petitioner did; 25. After compliance of such procedures which the petition participated, the allegation of the petitioner of non-consideration of his written statement and his allegation against the disciplinary authority as bias cannot be accepted by this Court. 26. The petitioner has also alleged in the writ application that while passing the punishment order the relevant records and documents etc. was not considered as relevant postal receipts intimating his absence through registered post were not considered. 26. The petitioner has also alleged in the writ application that while passing the punishment order the relevant records and documents etc. was not considered as relevant postal receipts intimating his absence through registered post were not considered. This is again a wholly incorrect statement as appears from document annexed to his own writ application being annexure P-8, which is the report of the Enquiry Officer and has been discussed above and the reason for not believing such postal receipts in support of his sending intimation letters has also been disclosed in the said order. 27. The petitioner's further allegation that the finding of the Enquiry Officer are based on surmise and not on evidence which made the finding perverse and the Enquiry Officer was not acting independently and was bias are wholly baseless, incorrect and against the records. I do not accept such allegation as I find those allegations as wholly baseless. 28. In fact the petitioner has completely failed to show that the disciplinary authority held the proceeding in violation of principles of natural justice; or it has been held in violation of statutory regulations prescribing the mode of such enquiry; or the decision of the authority is vitiated by the considerations extraneous to the evidence; or, on the face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion; or, there are any other grounds very similar to the above. 29. No case has been made out by the petitioner in the writ application warranting interference by this Court. 30. The disciplinary authority is the sole judge of fact and the conclusion of the disciplinary authority here receives support from the evidence accepted in the disciplinary proceeding and the authority on that basis has held him guilty. 31. Judicial review of a disciplinary proceeding by a writ Court is a review of the manner in which the decision was made. In this review, what is to be seen by a Court is whether the individual has received fair treatment and whether the findings and conclusions are based on some evidence. 32. Here in this case I find that the petitioner has received fair treatment and opportunity of hearing was given to him in compliance with the principles of natural justice and the conclusion of the disciplinary authority is based on evidence. 33. 32. Here in this case I find that the petitioner has received fair treatment and opportunity of hearing was given to him in compliance with the principles of natural justice and the conclusion of the disciplinary authority is based on evidence. 33. The petitioner by making baseless allegations of bias non consideration of written statement, non consideration of evidence in this matter has actually invited this Court to re-appreciate the evidence and to reach to its own independent findings on the evidence. This is wholly impermissible. 34. On the basis of the above discussion I find no merit in the writ application and the same is dismissed. No costs.