Calcutta High Court (Appellete Side)
Sri Chitta Ranjan Basak vs State Of West Bengal & Ors on 9 January, 2012
Author: Biswanath Somadder
Bench: Biswanath Somadder
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Justice: - Biswanath Somadder
W.P. 9509 (W) of 2011.
Sri Chitta Ranjan Basak
Vs.
State of West Bengal & Ors.
For the petitioner(s) :- Ms. Sanghamitra Nandy
Mrs. Lily Ghosh
Mr. Rabindra Narayan Dutta
Mr. Hare Krishna Halder
... For the State.
Mr. Kamalesh Bhattacharya
Mr. Rezaul Hossain
... For the respondent nos. 2-5.
Heard on : 09.01.2012.
Judgment on : 09.01.2012.
Biswanath Somadder, J.:
The writ petitioner was holding the post of an Assistant Engineer of Uttar Dinajpur Zilla Parishad at a point of time when a show-cause notice was issued on 14th July, 2010, by the District Magistrate of Uttar Dinajpur who was also the Executive Officer of Uttar Dinajpur Zilla Parishad. He 2 was directed to show-cause why disciplinary action would not be taken against him in respect of the following charges:
"a) Dereliction of Duty;
b) Unlawful and with corrupt intention authentication of the measurement book and recommendation of the Bill of the said work for an amount of Rs. 1460387=00, which has not been actually executed as per specification and thus misuse of Official power;
c) Lack of integrity and thus violation of sub rule 2 of rule 3 and sub rule 1 of rule 5 of West Bengal Services (D R O of govt. Emply), 1980."
The writ petitioner gave reply to the show-cause notice on 20th July, 2010. Subsequently, by an order dated 3rd August, 2010, issued by the District Magistrate, Uttar Dinajpur & Executive Officer, Uttar Dinajpur Zilla Parishad, the writ petitioner was placed under suspension until further orders and a further order was passed for initiation of departmental proceeding against him as per articles of charge attached with the said order. An enquiring authority was also appointed to enquire into the charges framed against the petitioner and an officer was also appointed as the Presenting Officer to present the case against the writ petitioner.
The three Articles of charges read as follows:
"Article of Charge - 1 That Sri Chitta Ranjan Basak, Asst. Engineer, Uttar Dinajpur Zilla Parishad, Uttar Dinajpur while functioning as engineer in charge of the execution of the scheme namely 'Construction of Pucca road from Hatkaliaganj to Chandgaon bridge via Banshlhara under mustafangar Gram Panchayat under Kaliaganj' under Backward village Development Fund 08-09, did not discharge his duty properly and allowed his subordinates & the executing agency to execute the scheme with violation of the 3 specification and the schedule and thus abetting the misappropriation of Govt. Fund. He thus is charged with dereliction of govt. duty.
Article of Charge - II That Sri Chitta Ranjan Basak, Asst. Engineer, Uttar Dinajpur Zilla Parishad, Uttar Dinajpur has authenticated and recommended the bill and measurement Book for an amount of Rs. 14,60,388=00 only of the said scheme and said that the scheme was done as per specification.
Whereas, it is seen from the report of the Executive Engineer Uttar Dinajpur Zilla Parishad that the work has not been done as per schedule & specification. It is seen from the enquiry report of the Executive Engineer Uttar Dinajpur Zilla Parishad that
1) After digging at the edge of hard cast at chainage 150 mtr. Available thickness found was 166mm whereas it should be 270mm as schedule.
75mm thick WBM grade-III was not found & GSB (RBM) was 65mm which was less than the schedule.
2) At chainage 165 mtr the available thickness found was 90mm which is less than the schedule. The GSB (RBM) was not found & thickness of WBM was 70mm in contrary to the schedule & approved specification.
3) The 111m earth work on both side of embankment was not done at all but recommended in the bill.
Thus he is charged with lack of integrity and violation of sub rule 2 of rule 3 and sub rule 1 of rule 5 of West Bengal Services (D R O of Govt. Emply), 1980.
Article of Charge - III 4
a) He unlawfully and with corrupt intention authenticated the measurement book and recommendation of the Bill of the said work for an amount of Rs. 1460387=00, which has not been actually executed as per specification and thus he is charged with misappropriation of Govt. Money and misuse of Official power." Upon enquiry being conducted, the writ petitioner was found guilty for good and sufficient reasons and the disciplinary authority decided to impose the following penalties against the writ petitioner under Rule 8 of West Bengal Services (Classification, Control & Appeal) Rule, 1971:-
1) Annual increment of Sri C R Basak will be withheld for 7 (seven) consecutive years with effect from 01.07.2011;
2) Sri C R Basak will not be considered for any further promotion in the next higher scale or rank.
The writ petitioner, consequently, rejoined service on 27th December, 2010, and also preferred a statutory appeal against the order dated 20th December, 2010; initially, by mistake before the District Magistrate, Uttar Dinajpur and subsequently, on rectification, before the appellate authority namely, the Sabhadhipati of Uttar Dinajpur Zilla Parishad.
The appeal was, thereafter, taken up for consideration by the Sabhadhipati of Uttar Dinajpur Zilla Parishad and the said authority passed an order on 7th June, 2011, relevant portion whereof reads as follows:
"I have gone through the Measurement Book, Bill Inspection Report of District Engineer, Show Cause letter of District Magistrate & executive Officer, Charge Report, Deposition of the complainant, order of District Magistrate & Executive Officer awarding punishment to Sri Basak. After going through all these documents it is felt that Sri Basak has committed the offence by authenticating the Measurement Book and Bill which eventually stands false in the Inspection Report of District Engineer. 5 The punishments which were awarded to him alongwith other one person for committing such offence is felt justified.
Hence, I do hereby order that after hearing the case it is felt that reasonable order has been issued by the District Magistrate & Executive Officer, Uttar Dinajpur Zilla Parishad, which is done as per law & relevant rules. Now as the applicant is an employee of Uttar Dinajpur Zilla Parishad & sole earning members of his family, therefore on sympathetic ground I would request the Executive Officer, Uttar Dinajpur Zilla Parishad to reconsider his previous order for reducing his punishment by allowing him promotion in due course only.
A copy of this order be issued to all concerned."
The aforesaid order is now under challenge in the instant writ proceeding. The learned advocate appearing on behalf of the petitioner has primarily raised two issues. One is in respect of irrational punishment which has been inflicted upon the petitioner and another with regard to non supply of documents to the petitioner when the disciplinary proceedings were being conducted.
In support of her contention she relied on the following judgments of the Supreme Court:
1. (1998) 9 SCC 671 (State of Karnataka and Ors. v. H. Nagaraj)
2. (1998) 6 SCC 651 (State of U.P. v. Shatrughan Lal and Anr.)
3. (2006) 3 SCC 173 (Commissioner of Police and Ors. v. Syed Hussain)
4. (2006) 13 SCC 619 (Kerala Solvent Extractions Ltd. v. A. Unnikrishnan and Anr.) Learned advocate for the petitioner submitted that the appellate authority ought to have considered the two issues as stated above and passed the impugned order only thereafter.
On the other hand, learned advocate representing the Uttar Dinajpur Zilla Parishad submitted that the writ court ought not to be treated as the second appellate authority and in the facts of the instant 6 case there has been no malafide or arbitrary exercise of power by the appellate authority which would warrant any interference of the writ court. The writ petitioner had been found guilty and charges proved on three counts:
1) Dereliction of Government Duty;
2) Lack of integrity and violation of sub rule 2 of rule 3 and sub rule 1 of rule 5 of West Bengal Services (D R O of govt. Emply), 1980; and
3) Misappropriation of government money and misuse of official power. "
He submitted that in the above factual backdrop, the contention of the learned advocate for the petitioner that irrational punishment was inflicted on the petitioner does not stand to reason since there was no major penalty imposed and only the annual increment of the writ petitioner was directed to be withheld for a few years and he was not to be considered for further promotion in the next higher scale or rank. He also submitted that the appellant authority has shown leniency while passing the order dated 7th June, 2011, by observing to the effect that the writ petitioner was an employee of the Zilla Parishad and was a sole earning member of his family and on sympathetic ground the Executive Officer of Uttar Dinajpur Zilla Parishad was requested to reconsider his previous order by reducing the punishment and allowing the writ petitioner's promotion in due course. So far as non supply of relevant documents is concerned, learned advocate referred to the grounds of appeal as contained in the appeal filed by the writ petitioner before the appellate authority and submitted that none of the grounds specifically referred to such point of non supply of relevant documents. He also relied on a judgment of the Supreme Court in the case of Swapan Kumar Pal v. Achintya Kumar Nayak, reported in (2008) 1 SCC 379 and contended that in a case of this nature, ordinarily, the High Court ought not to exercise its discretionary jurisdiction under Article 226 of the Constitution. For exercising the power of judicial review, the Court has a limited role to play. It could interfere only if 7 any legal error has been committed in the decision-making process. It could not enter into the merit of the decision.
Learned advocate representing the State adopted the submissions made by the learned advocate representing the Uttar Dinajpur Zilla Parishad.
The facts of the instant case as elucidated above leave no manner of doubt that the disciplinary proceedings initiated against the writ petitioner which finally culminated in the order passed by the appellate authority, being the Sabhadhipati of Uttar Dinajpur Zilla Parishad, have been conducted and carried out strictly in accordance with law. That apart, there is not even an iota of infirmity of reasoning, much less any palpable error of law or perversity or malafide, which apparent from the impugned order dated 7th June, 2011. Each and every relevant document was considered by the appellate authority. Although the punishment awarded to the writ petitioner was found to be justified, the Executive Officer of Uttar Dinajpur Zilla Parishad was requested to reconsider his previous order and take a sympathetic view by reducing the punishment inflicted upon the petitioner and allowing him promotion in due course.
The articles of charges, which have already been proved, reveal no cogent reasons as to why the punishment inflicted upon the writ petitioner is required to be held as irrational.
The contention of the writ petitioner with regard to non supply of relevant documents is not even a ground taken by the writ petitioner before the appellate authority in his statutory appeal.
In State of Karnataka v. H. Nagaraj (supra), which has been relied on by the learned advocate for the petitioner, the Supreme Court has reiterated its view with regard to invocation of the principle of proportionality regarding punishment. It has been held by the Supreme Court that only in a case where punishment was totally irrational in the sense it was in outrageous defiance of logic or 8 moral standards, the said principle could be invoked. Such ingredients are, however, not present in the facts of the instant case.
In State of U.P. v. Shatrughan Lal (supra), the Supreme Court has reiterated the principle of law that in any departmental proceeding where charge-sheet is issued and documents which are proposed to be utilized against that person are indicated in the charge-sheet, but copies thereof are not supplied to him in spite of his request, and he is, at the same time, called upon to submit his reply, it cannot be said that an effective opportunity to defend was provided to him. As observed hereinbefore, in the facts of the instant case, none of the grounds in the appeal preferred by the writ petitioner before the appellate authority specifically refer to the point of non supply of relevant documents.
In Commissioner of Police and others v. Syed Hussain (supra), once again the Supreme Court discusses the doctrine of proportionality and observes, inter alia, that the said doctrine has to be applied in appropriate case as the depth of judicial review will depend on the facts and circumstances of the each case.
In Kerala Solvent Extractions Ltd. vs. A Unnikrishnan and another (supra), which has been relied on by the learned advocate for the petitioner, the Supreme Court in paragraph 10 of the judgment has observed as follows:
"We are inclined to agree with these submissions. In recent times, there is increasing evidence of this, perhaps well meant but wholly unsustainable tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate 9 logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability."
The above observation of the Supreme Court does not at all enure to the benefit of the writ petitioner and is in fact a note of caution to the Courts below while deciding these type of matters.
The Supreme Court, in Swapan Kumar Pal's case (supra), has held, inter alia, that in a case of this nature, ordinarily, the High Court ought not to exercise its discretionary jurisdiction under Article 226 of the Constitution of India. For exercising of power of judicial review, the Court has a limited role to play. It could interfere only if any legal error has been committed in the decision-making process. It could not enter into the merit of the decision. There is no such legal error which has been committed in the decision-making process by any authority which would warrant an interference of this Court in the facts of the instant case. While passing the impugned order, the appellate authority has actually shown leniency towards the writ petitioner by making a request to the Executive Officer of the Uttar Dinajpur Zilla Parishad to reconsider his previous order and take a sympathetic view by reducing the punishment inflicted upon the writ petitioner and allow him promotion in due course.
In such circumstances as stated above, this Court has no hesitation in observing that the writ petition is patently misconceived and is liable to be dismissed and is accordingly dismissed.
Urgent photostat certified copy of this order, if applied for, be given to the parties.
(Biswanath Somadder, J.) 10 11 12