Calcutta High Court (Appellete Side)
Soma Das(Mallick) vs State Of West Bengal & Ors on 24 August, 2018
Author: Shekhar B. Saraf
Bench: Shekhar B. Saraf
1
24.08.2018
Sl. No.86
BM
WP 7950 (W) of 2017
Soma Das(Mallick)
Vs.
State of West Bengal & Ors.
Mr. Sougata Bhattacharyya
Mr. Sunit Kumar Roy ... for the petitioner
Mr. Arindam Chattopadhyay
Mr. Pinaki Bhattacharyya ... for the State
Ms. Koyeli Bhattacharyya ... for the Board
Mr. Ekramul Bari
Mr. Syed Mansur Ali
Ms. Tanuja Basak
Ms. Anusuya Banerjee ... for the School Authority
1.This is the third round of litigation wherein the writ petitioner has approached this Court against the disciplinary proceedings that has been initiated against the petitioner. By an order dated March 9, 2016 a coordinate bench of this Court had set aside the termination letter dated September 29, 2012 issued by the School authority against the petitioner and directed the Managing Committee of the School to conduct disciplinary proceedings de novo in accordance with the Rules of Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969 (hereinafter referred to as 'Management Rules').
2. Accordingly, fresh charge sheet was filed against the petitioner to which the petitioner gave a reply. The petitioner also appeared before the Enquiry Officer appointed by the School authorities and made her submission therein. 2 Subsequently, after a month the petitioner wrote a letter to the School authority complaining against the mode of conducting the enquiry by the Enquiry Officer.
3. After the enquiry, it is an admitted position that the enquiry report was never given to the petitioner. Instead of the same, all the papers were forwarded by the School authorities to the West Bengal Board of Secondary Education to grant approval for the first stage proceedings under the Management Rules. The petitioner submitted a written submission before the Board and the Board thereafter took a decision approving the first stage proceedings. This order passed by the Board dated December 22, 2016 is under challenge before me.
4. Extensive arguments have been made on behalf of both the sides. The basic issue that needs to be decided by this Court is whether any prejudice has been caused to the writ petitioner due to non-supply of the enquiry report. Relying on the judgement in Managing Director, ECIL vs. B. Karunakar reported in AIR 1994 SC 1074 and a Special Bench judgement of this Court in Arun Kumar Hait vs. State of West Bengal & Ors. reported in 1999 (I) CHN 521, Mr. Bhattacharya appearing on behalf of the petitioner submitted that providing the enquiry report is a mandatory provision and non-supply of the same automatically prejudices the petitioner. It is not required for the petitioner to show that any prejudice has been caused to him specifically as the supply of the enquiry report is a fundamental requirement under the Rules as held by the judgements passed earlier.
5. Mr. Bari appearing on behalf of the School authorities relied upon State Bank of Patiala & Ors. vs. S. K. Sharma reported in 1996 (3) SCC 364 and 3 submitted that violation of any and every procedural provision cannot be said to automatically vitiate an order passed. He relied heavily on paragraphs 29 and 30 of the above judgement. He further submitted that if the delinquent officer has waived his own rights, either expressly or by his conduct, it cannot be said that any prejudice has been caused to him. Mr. Bari further submitted that in all the cases cited by the petitioner the cases involved defalcation of funds that had resulted in disciplinary proceedings. However, this was a case where the petitioner's services has been terminated on the ground that she has been absent for a period of more than five years. He submitted that this factual aspect is not in dispute and accordingly, the question of prejudice does not arise at all.
6. I have heard counsels appearing on behalf of the parties and considered the submissions made by counsels on behalf of the parties and also perused the materials on record.
7. In my opinion, there is no doubt that this case is a straight forward case wherein the facts relating to the disciplinary proceedings against the petitioner are not much in dispute. She was definitely absent from the School for over five years. Further more, after the hearing before the Enquiry Officer, the petitioner herself made a declaration stating therein that she has no further evidence to support her arguments that were placed before the enquiry officer except her reply made to the charge sheet. She further submitted in her own hand writing that she had verified all the necessary documents such as Leave Register, Attendance Register, Service Book and necessary documents as placed by the presenting officer and the examination of her hearing was complete. This letter 4 submitted on the date of the hearing before the enquiry officer was however, recanted by the petitioner by her letter dated June 10, 2016. However, this recanting of the letter was not the only issue raised by her in this letter. Several other issues were raised by her with regard to non-supply of documents and her not having been granted an opportunity to cross examine the witnesses.
8. However, the manner in which she had recanted the letter written by her on the day of the enquiry does not help her cause, as the same seems to be only an afterthought. The paragraph is delineated below :-
" It is also necessary to state herein that during my presence before the Enquiry Officer at the time of enquiry surprisingly I found that proceedings of the enquiry were not recorded and I was not asked to put signature on Attendance Sheet. Rather in an unprecedented manner I was pressurised to put signature on a declaration that I was not able to submit any other proof apart from the documents which were submitted by me at the time of enquiry against the allegation of the disciplinary authority on my absence."
9. The petitioner submits in the letter that she was pressurized to put a signature on a declaration. However, the actual fact is not as stated above. The entire letter has been written by her in her own handwriting and therefore, this recanting by her seems to be only an afterthought and is without any substance.
10. However, the issue to be decided is whether any prejudice has been caused to her because of the fact that no enquiry report was furnished to her prior to the hearing before the West Bengal Board of Secondary Education. 5
11. Ms. Koyeli Bhattacharyya appearing on behalf of the Board has of course submitted that the Board has acted as per the Rules and granted approval of the first stage hearing as per the Management Rules.
12. At this stage, one may examine the Supreme Court judgement relied upon by the petitioner in Managing Director, ECIL, Hyderabad vs. B. Karunakar (supra), wherein in paragraph 7 (i) it has been held as follows :-
"Hence, it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has right to receive a copy of the Inquiry Officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the Inquiry Officer's report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.
Hence the incidental questions raised above may be answered as follows:
(i) Since the denial of the report of the Inquiry Officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject."
In paragraph 19 of the said judgement it has been held-
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"19. It would thus, be clear that the report together with the findings on the charges and the recommendations, if any, would constitute appropriate material for consideration by the disciplinary authority. It is not incumbent upon the enquiry officer to indicate in his report of the nature of the penalty to be imposed on the delinquent. Neither findings on merits, nor the suggested penalty binds the disciplinary authority who is enjoined to consider the record and the report. It is open to him to agree on the findings of the enquiry officer in which even he need not record elaborate consideration or reasoning in support of his conclusions, but the order must bear out his conclusions, but the order must bear out his application of mind to the questions involved and brief reasons in support thereof, though not like a judgement. If he disagrees on some or all of the findings or reasons of the enquiry officer, then he is enjoined to record the reasons for his disagreement. On the nature of the penalty, though it is discretionary, the discretion must be exercised reasonably, consistent with the gravity of the misconduct having indelible effect on the discipline or morale of the service, etc. and adequate punishment be imposed on the delinquent. Brief reasons in this behalf also always lend assurance of the application of the mind and consideration given to the case by the disciplinary authority which would be a factor the High Court or the Tribunal would be a factor the High Court or the Tribunal would take into consideration even on the nature of the penalty."
13. The Special Bench of the Calcutta High Court in Arun Kumar Hait vs. State of West Bengal (supra) relying upon the above Supreme Court judgement, delineated the entire procedure to be followed in a disciplinary proceedings. The relevant paragraphs are provided below: -
"33. The express procedure is specifically provided by Rule 28(8) of the Management Rules as clarified by the notifications issued by the WBBSE.7
Although we have dealt with the express steps envisaged in connection with the first two questions framed, nevertheless it would be convenient to recapitulate the same briefly for the purpose of this question. The first stage of disciplinary proceeding requires the Managing Committee to:
(i) drew formal proceedings;;
(ii) issue a charge-sheet to the delinquent;
(iii) offer the delinquent reasonable facilities for defending himself;
(iv) grant the delinquent an opportunity to submit his explanation within a fortnight from the date of the receipt of the charge-sheet;
(v) consider and take a decision on the basis of the material;
(vi) send all relevant papers including the charge-sheet, explanations submitted by the delinquent and the reasons for the decision to the WBBSE.
If the Board approves the decision of the Managing Committee to take disciplinary action, the second stage of the disciplinary proceeding commences. At this stage the Managing Committee must:
(a) issue a show cause to the delinquent ordinarily within fortnight why he should not be dismissed or removed from service;
(b) give the delinquent an opportunity to submit an explanation;
(c) take a decision on the action proposed to be taken;
(d) send all relevant papers including the explanation submitted by the delinquent, as well as the recommendation for the action proposed to be taken to the Board.
If the Board approves the decision of the Committee with regard to the action proposed, the Managing Committee can remove or dismiss the delinquent.
35. The procedures which have been considered sufficient compliance with the requirement of a reasonable opportunity of defence have been laid down in Institute of Chartered Accountants in India v. L.K. Ratna : AIR 1987 SC 719; State Bank of Patiala v. S.K. Sharma : AIR 1996 SC 1669; Managing Director, 8 ECIL v. B. Karunakar : AIR 1994 SC 1074 and Sujit Kumar Das v. West Bengal Board of Secondary Education: 1972 (2) CLJ 497.
36. Briefly speaking these would include as far as the first stage is concerned, the giving of a clear charge-sheet; provisions of facilities for inspection and/or taking copies of the documents upon which the Managing Committee relies; granting an opportunity to the delinquent to cross-examine the witnesses examined by the Managing Committee and the right to examine witnesses in his favour.
34. The implicit rules of procedure which complement the express procedure follow from the phrase in Rule 28(8) of the Management Rules which requires the Managing Committee to offer the delinquent "reasonable facilities for defending himself." In other words, the procedure adopted must conform to the principles of natural justice but ultimately "the test is one of prejudice i.e. whether the person has received a fair hearing considering all things."
37. The implicit procedure also includes the right of the Managing Committee to delegate the function to hold the enquiry after the charges have been framed and served on the delinquent to an independent person [see answer to question 2 (supra)].
38. However, when the matter is so delegated, the delinquent is entitled to a copy of the enquiry report of the Enquiry Officer before the disciplinary authority takes any decision on the question of guilt of the delinquent. As held in Managing Director, ECIL v. Karunakar (AIR 1994 SC 1074):
"The reason why the right to receive the report of the Enquiry Officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the Enquiry Officer from an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair 9 opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Enquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the enquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Enquiry Officer along with the evidence on record. In the circumstances, the findings of the enquiry do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Enquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute an additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Enquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the Enquiry Officer's findings. The disciplinary authority is then required to consider the evidence, the report of the Enquiry Officer and the representation of the employee against it."
39. This view has been reiterated recently by a Larger Bench of the Supreme Court in Punjab National Bank v. Kunj Behari Misra: (1998) 7 SCC 84."
14. The relevant paragraphs cited by Mr. Bari in the case of State Bank of Patiala & Ors. vs. S. K. Sharma (supra) are paragraphs 29 and 30 wherein it has been held as follows:-
"29. The matter can be looked at from the angle of justice or of natural justice also. The object of the principles of natural justice -- which are now understood as synonymous with the obligation to provide a fair hearing [ See the discussion of this aspect at p. 515 of Wade: Administrative Law (7th Edn.). In particular, he refers to the speech of Lord Scarman in CCSU v. Minister for the Civil Service26 [AC at 407] where he used both these concepts as signifying the same thing.] -- is to ensure that justice is done, that there is no 10 failure of justice and that every person whose rights are going to be affected by the proposed action gets a fair hearing. The said objective can be tested with reference to sub-clause (iii) concerned here. It says that copies of statements of witnesses should be furnished to the delinquent officer "not later than three days before the commencement of the examination of the witnesses by the inquiring authority". Now take a case -- not the one before us -- where the copies of statements are supplied only two days before the commencement of examination of witnesses instead of three days. The delinquent officer does not object; he does not say that two days are not sufficient for him to prepare himself for cross-examining the witnesses. The enquiry is concluded and he is punished. Is the entire enquiry and the punishment awarded to be set aside on the only ground that instead of three days before, the statements were supplied only two days before the commencement of the examination of witnesses? It is suggested by the appellate court that sub-clause (iii) is mandatory since it uses the expression 'shall'. Merely because the word 'shall' is used, it is not possible to agree that it is mandatory. We shall, however, assume it to be so for the purpose of this discussion. But then even a mandatory requirement can be waived by the person concerned if such mandatory provision is conceived in his interest and not in public interest, vide Dhirendra Nath Gorai v. Sudhir Chandra Ghosh [(1964) 6 SCR 1001 : AIR 1964 SC 1300] . Subba Rao, J., speaking for the Court, held:
"Where the court acts without inherent jurisdiction, a party affected cannot by waiver confer jurisdiction on it, which it has not. Where such jurisdiction is not wanting, a directory provision can obviously be waived. But a mandatory provision can only be waived if it is not conceived in the public interests, but in the interests of the party that waives it. In the present case the executing court had inherent jurisdiction to sell the property. We have assumed that Section 35 of the Act is a mandatory provision. If so, the question is whether the said provision is conceived in the interests of the public or in the interests of the person affected by the non-observance of the provision. It is true that 11 many provisions of the Act were conceived in the interests of the public, but the same cannot be said of Section 35 of the Act, which is really intended to protect the interests of a judgment-debtor and to see that a larger extent of his property than is necessary to discharge the debt is not sold. Many situations may be visualized when the judgment-debtor does not seek to take advantage of the benefit conferred on him under Section 35 of the Act."
30. The principle of the above decision was applied by this Court in Krishan Lalv. State of J&K [(1994) 4 SCC 422 : 1994 SCC (L&S) 885 : (1994) 27 ATC 590] in the case of an express statutory provision governing a disciplinary enquiry. It was a case where the employee was dismissed without supplying him a copy of the enquiry officer's report as required by Section 17(5) of the Jammu and Kashmir (Government Servants) Prevention of Corruption Act, 1962. This provision was treated as mandatory. The question was how should the said complaint be dealt with. This Court held: (SCC pp. 432-33, paras 26-
29) "Let it now be seen whether the requirement of giving copy of the proceeding of the inquiry mandated by Section 17(5) of the Act is one which is for the benefit of the individual concerned or serves a public purpose. If it be former, it is apparent, in view of the aforesaid legal position, that the same can be waived; if it be latter, it cannot be. Though Shri Mehta has urged that this requirement serves a public purpose, we do not agree. According to us, the requirement is for the benefit of the person concerned which is to enable him to know as to what had taken place during the course of the proceedings so that he is better situated to show his cause as to why the proposed penalty should not be imposed. Such a requirement cannot be said to be relatable to public policy or one concerned with public interest, or to serve a public purpose.
We, therefore, hold that the requirement mentioned in Section 17(5) of the Act despite being mandatory is one which can be waived. If, however, the requirement has not been waived any act or action in violation of the same 12 would be a nullity. In the present case as the appellant had far from waiving the benefit, asked for the copy of the proceeding despite which the same was not made available, it has to be held that the order of dismissal was invalid in law.
The aforesaid, however, is not sufficient to demand setting aside of the dismissal order in this proceeding itself because what has been stated in ECIL case [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] in this context would nonetheless apply. This is for the reason that violation of natural justice which was dealt with in that case, also renders an order invalid despite which the Constitution Bench did not concede that the order of dismissal passed without furnishing copy of the inquiry officer's report would be enough to set aside the order. Instead, it directed the matter to be examined as stated in paragraph 31. ...
According to us, therefore, the legal and proper order to be passed in the present case also, despite a mandatory provision having been violated, is to require the employer to furnish a copy of the proceeding and to call upon the High Court to decide thereafter as to whether non-furnishing of the copy prejudiced the appellant/petitioner and the same has made difference to the ultimate finding and punishment given. If this question would be answered in affirmative, the High Court would set aside the dismissal order by granting such consequential reliefs as deemed just and proper."
15. In fact, the above judgement cited by Mr. Bari, appearing on behalf of the School authorities, categorically states that "it may be true that there may be certain procedural law which are of fundamental character whose violation by itself is proof of prejudice. The Court cannot insist on proof of prejudice in such cases."
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16. On an examination of the aforesaid judgements, the picture that emerges is that certain procedural requirements are mandatory and non-compliance of the same vitiates the process irrespective of whether any prejudice is caused or not. In the case of an enquiry having been carried out by a third party, I am unable to imagine that the findings of the enquiry officer would not be provided to the delinquent as the said enquiry report becomes the basis of the factual findings and the nature of punishment that would follow. Such a report has to be provided to the delinquent as without being presented with the enquiry report the person shall be in no position to defend himself. Consequentially, it is my view that the non-supply of the enquiry report is such a procedural requirement that has to be fulfilled and the petitioner is not required to show how prejudice has been caused to him due to non-supply of the same. Accordingly, I hold that non- supply of the enquiry report to the writ petitioner has vitiated the process that has occurred subsequently without supplying the enquiry report.
17. I accordingly, direct the enquiry report to be supplied to the writ petitioner. The petitioner shall have the right to reply to the same before the disciplinary proceedings, that is, the School authorities. Based on the reply given by the writ petitioner, the School authorities shall take a decision and thereafter send their decision to the Board for approval at the first stage. It is made clear that the proceedings shall continue from the stage of supply of the enquiry report onwards. The order of the Board dated December 22, 2016 is set aside. Needless to say that all consequential steps taken thereafter are set aside. The School authority is directed to conclude the exercise of taking a decision within four 14 weeks of the petitioner giving her reply. The procedure to be followed shall be as provided below:-
a) Enquiry report to be submitted to the writ petitioner within seven days.
b) Reply to be furnished by the petitioner within two weeks of the receipt of the enquiry report.
c) School authorities to take a decision after considering the reply of the writ petitioner within a period of four weeks from the date of receipt of the reply from the writ petitioner. Subsequent to the above, depending on the decision of the School authority, steps to be taken in accordance with law.
18. The writ petition is disposed of with the above directions.
19. All parties are to act on the server copy.
(Shekhar B. Saraf, J. )