Calcutta High Court (Appellete Side)
Dilip Mukherjee vs The State Of West Bengal And Others on 27 April, 2012
Author: Subhro Kamal Mukherjee
Bench: Subhro Kamal Mukherjee
orm No. J(2).
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Subhro Kamal Mukherjee
And
The Hon'ble Justice Nishita Mhatre
W. P. S. T. No. 218 of 2010
Dilip Mukherjee
...Petitioner
Versus
The State of West Bengal and others
...Respondents.
For the petitioner: Mr. Deba Prosad Mukherjee-(II),
Mr. Tarak Karan.
For the State-respondents: Ms. Chaitali Bhattacharya.
Heard on: April 5, 2012 and April 9, 2012.
Judgment on: April 27, 2012
Subhro Kamal Mukherjee, J.
This is an application under Article 226 of the Constitution of India against judgment and order dated August 30, 2007 passed by the West Bengal Administrative Tribunal in Original Application No. 1416 of 2004.
The writ petitioner was a constable of the Bengal Police. The writ petitioner was posted at Dum Dum under Sealdah Government Railway Police District.
A chargesheet was issued by the Superintendent of Police, Government Railway Police, Sealdah, on July 3, 2003, against this writ petitioner. He was charged with gross misconduct, indiscipline and dereliction of duty unbecoming of a member of the police force. It was alleged in the charge-sheet that he was unauthorisedly absent from Dum Dum Government Railway Police Station from June 1, 2003 without taking any leave or permission from the Officer-in-Charge or any competent authority. Thus, he hampered the government duties. It was stated that he was a habitual absentee and that several proceedings were drawn up against him, but he did not rectify himself.
In the statement of charges it was stated that he was unauthorisedly absent from June 1, 2003 till July 28, 2003.
Subsequently, an additional charge-sheet was issued. It was alleged that he was unauthorisedly absent for two days, that is, on March 22, 2003 and March 23, 2003. It was, however, noted that he resumed his duty on March 24, 2003.
As the cause shown by the writ petitioner was not satisfactory to the disciplinary authority, the disciplinary authority decided to hold an enquiry into the charges.
Before the enquiry officer, the delinquent employee put up his defence that he was unwell and as such he could not attend his duties. In support of his contention, he submitted medical certificates, of course, issued by a private medical practitioner.
The enquiry officer, in his report dated October 20, 2003, inter alia, held that the absence of the delinquent employee from June 1, 2003 to July 28, 2003 could not be accepted merely on production of medical certificates of a private medical practitioner. He noticed that intimations were sent by the delinquent to his office, but those were sent under certificate of posting. It was opined that he should have consulted a government doctor. However, ultimately, he found "the point 'unauthorised absence' in two phases cannot be ruled out".
The disciplinary authority accepted the report of the enquiry officer and proposed the punishment of dismissal from service. It was decided that the delinquent would not get anything more than whatever has, already, been paid to him.
The delinquent preferred an appeal before the Special Inspector General of Police and Deputy Inspector General of Police Railways, West Bengal. The appellate authority by order dated January 8, 2004 dismissed his appeal holding that the contention raised by him could not justify his absence from duty without permission. The appellate authority took into consideration the past conduct of the writ petitioner. It was noted that he was earlier proceeded with on the ground of unauthorised absence. The disciplinary authority decided to dismiss him from service. But, in earlier occasion, the appellate authority modified the order of the disciplinary authority.
The writ petitioner, therefore, approached the tribunal with the original application. The tribunal, by the order impugned, dismissed the application on contest, but without any order as to costs.
Mr. Deba Prosad Mukherjee-(II), learned advocate appearing in support of this writ petition, submits that the writ petitioner could not attend his duty due to his illness and, therefore, his absence was not willful and deliberate. He submitted that the writ petitioner was under medical treatment and in support of such contention, he produced medical papers before the enquiry officer.
Ms. Chaitali Bhattacharya, learned junior government advocate appearing on behalf of the State- respondents, however, justifies the order of the authorities and of the tribunal. She submits that the writ petitioner is a member of the disciplined force and, therefore, he should have been careful. She submits that he was habitual absentee and the authorities are, therefore, justified in dismissing him from service. She submits that there is no scope to take a lenient view in favour of the writ petitioner in exercise of the power of judicial review by this Court. She submits that having regard to the conduct of the writ petitioner, the tribunal rightly dismissed his original application.
Ms. Bhattacharya, in support of her contentions, cites the decision in the case of Charanjit Lamba Versus Commanding officer, Army Southern Command and others reported in (2010) 11 Supreme Court Cases 314.
In Charanjit Lamba (supra), the delinquent was an officer holding the rank of Major. He made a false claim for payment of transport charges of household luggage and car to Chandigarh. He did not clear his electricity bills upon his transfer from the erstwhile place of posting. In such situation, the Apex Court held that the competent authority was justified in taking view that nature of misconduct proved against the appellant called for a suitable punishment of dismissal from service.
She cites the decision in the case of General Manager (P), Punjab & Sind Bank and others Versus Daya Singh reported in (2010) 11 Supreme Court Cases 233.
In Daya Singh (supra), the delinquent was the branch manager and he sanctioned loans against twenty (20) non-existent Fixed Deposit Receipts to fictitious persons in excess of amounts of Fixed Deposit Receipts. In the enquiry, the handwriting of the delinquent was established his role in the alleged act. In the aforesaid backgrounds, the Apex Court observed that the court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fide or perversity, that is, where there was no evidence to support a finding or where a finding was such that no man acting reasonably and with objectivity could have arrived at that finding.
She cites the decision in the case of Surender Kumar Versus Union of India and others reported in (2010) 1 Supreme Court Cases 158.
In Surender Kumar (supra), the delinquent was the Assistant Supervisor, Military Farm. He took soda bicarbonate on day-to-day basis to feed animals of the farm and instead of feeding the animals, he stored the same in a premises exclusively in his possession. He could not explain as to how a huge quantity of soda bicarbonate was kept in his premises. There was a finding that the animals suffered because of non-feeding of soda bicarbonate and three animals died. In such situation, the Supreme Court held that the punishment of compulsory retirement could not be termed as harsh considering to serious misconduct.
She cites a decision in the case of Administrator, Union Territory of Dadra and Nagar haveli Versus Gulabhia M. Lad reported in (2010) 5 Supreme Court Cases 775.
The Supreme Court in Gulabhia M. Lad (supra) held that the High Court or a Tribunal could not interfere with the discretion exercised by the disciplinary authority with regard to the imposition of punishment unless such discretion suffered from illegality or material procedural irregularity or that would shock the conscience of the court/tribunal. The exercise of discretion in imposition of punishment by the disciplinary authority or appellate authority was dependent on host of factors such as gravity of misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment he worked. Ordinarily the court or a tribunal would not substitute its opinion on reappraisal of facts.
In support of her contentions Ms. Bhattacharya cites a decision in the case of the Chairman & Managing Director, V.S.P. and Others Versus Goparaju Sri Prabhakara Hari Babu reported in (2008) 5 Supreme Court Cases 569.
In Goparaju Sri Prabhakara Hari Babu (supra) the delinquent was found guilty on admission. He tried to submit explanation before another authority, which had not been pleaded in the departmental proceeding. It was held that once it was found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer was found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved.
Ms. Bhattacharya, also, cites a decision in the case of Union of India and others Versus Bishamber Das Dogra reported in (2009) 13 SCC 102 in support of her contention that habitual absenteeism amounts to gross violation of discipline.
In Bishamber Das Dogra (supra), the victim was a member of the Central Industrial Security Force. He remained absent from duty without taking any leave on several occasions and even during the pendency of the disciplinary proceeding. The disciplinary authority found that he willfully and deliberately absented from duty.
Ms. Bhattacharya cited an unreported decision of a Division Bench of this Court in W.P.S.T. No. 660 of 2009 (Ram Krishna Chatterjee Versus State of West Bengal and others).
In the said unreported decision, in the facts and circumstances of the case, the Division Bench held that it was proved that the delinquent was a habitual absentee and, therefore, he could not be shown any lenient view as that would carry a wrong signal to a disciplined force.
None of the cases cited by Ms. Bhattacharya is applicable in the facts and circumstances of this case.
In this case, the delinquent was absent for about fifty-nine days in one occasion and three days in the other. He sought to explain his absence contending that he was unwell and was under medical treatment.
The Supreme Court of India in the case of Krushnakant B. Parmar Versus Union of India and another reported in 2012(2) Supreme 254 held as under :
"17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful.
18. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant".
We have noticed hereinabove that before the enquiry officer the delinquent produced medical certificates from a private medical practitioner. The ultimate finding of the enquiry officer was that the charge of unauthorised absence in two phases could not be ruled out.
We are constrained to hold that neither the enquiry officer nor the disciplinary authority nor the appellate authority did come to any positive finding that the absence was willful.
Mere absence from duty without application or prior permission is unauthorised absence, but it does not ipso facto become willful unauthorised absence.
The Supreme Court in Krushnakant B. Parmar (supra) observed that there might be different eventualities due to which an employee might abstain from duty. In such case the employee could not be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.
In the absence of any positive finding that the contention of the delinquent police constable that he was unwell was false, he could not be held guilty of willful unauthorised absence and of failure of devotion to duty or behaviour unbecoming of a government servant.
However, the writ petitioner was absent on same occasions. The authorities initiated proceedings against him. He is unwell.
Therefore, we think that his compulsory retirement would meet the ends of justice.
We, thus, set aside the order of the disciplinary authority, the appellate authority and the tribunal and impose punishment of compulsory retirement of delinquent instead and in place of his dismissal from service.
The writ petition stands allowed-in-part.
We, however, make no order as to costs.
(Subhro Kamal Mukherjee, J.) Nishita Mhatre, J.
I agree.
(Nishita Mhatre, J.)