Calcutta High Court (Appellete Side)
Arun Kumar Hazra vs The State Of West Bengal & Ors on 17 January, 2012
Author: Harish Tandon
Bench: Harish Tandon
Form No.J. (2)
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present :
THE HON'BLE JUSTICE HARISH TANDON
WP No. 7721 (W) of 2009
Arun Kumar Hazra
Versus
The State of West Bengal & Ors.
For the petitioner : Mr. Indranath Mukherjee
: Mr. D.K. Bhattacharya
For the Respondents
No.4 and 5 : Mr. Subir Sanyal
: Mr. Ratul Biswas
Heard On : 25.2.2011, 18.3.11, 01.11.11 & 17.11.11
Judgment on : 17.1.2012
HARISH TANDON, J.:
Initially the petitioner challenged the inquiry report dated 10.03.2009 being vitiated by the principles of natural justice and bias. At the time of moving the instant writ petition an interim order was passed on 06.04.2009 permitting the respondent authorities to proceed with the inquiry proceeding but no final order should be passed within a period of 10 weeks from date without the express leave of the court. The respondent authorities were permitted to file affidavit-in-opposition to the writ petition.
During the pendency of the instant writ petition, the disciplinary authority inflicted the punishment on withholding two increments from the date of the suspension. By filing the supplementary affidavit, the petitioner has brought the said subsequent event and intended to assail the said order inflicting punishment by way of withholding two increments to the petitioner. The respondents could not deny the factum of passing the order of punishment by the disciplinary authority.
A point is raised by the respondent authorities that without amending the writ petition the order inflicting punishment should not be permitted to be agitated and/or challenged in the writ petition on the basis of a supplementary affidavit.
It would be pertinent to mention in this regard that after the passing of an order inflicting punishment the petitioner filed a contempt application before this court. It is alleged therein that in spite of an interim order passed in this writ petition, the authorities knowingly and willfully and in gross violation thereof has proceeded to pass the final order imposing the punishment by withholding two increments to the petitioner.
Upon noticing the tenet and/or purport of the interim order this court finds that the fetter which was put in not passing the said order was for a period of ten weeks from the date of the order and the said interim order was thereafter not extended. This court thus finds that the order of punishment having passed after the lapse of ten weeks from the date of the said interim order, the respondent cannot be punished under the contempt's of court act and accordingly dismissed the said contempt petition.
To proceed further in determining and/or adjudicating the points involved herein a brief facts are required to be adumbrated. The petitioner was appointed as the Assistant Teacher in the year 1972 and was appointed at the post of Head Teacher on and from 03.12.1997 in Sri Ramkrishna Sikshalaya (Primary Section, Howrah). A show cause notice was issued on 11.3.2008 alleging the involvement in the financial irregularities, defalcation of government fund granted to the school and other allegations amounting to moral turpitude.
Challenging the order of suspension, the petitioner filed writ petition being W.P. No. 15246 (W) of 2008 before this court which was disposed of with a direction upon the Chairman and Secretary, District Primary School Council, Howrah, to complete the disciplinary proceedings in accordance with law within a stipulated period. The petitioner was further directed to hand over the charge and keys of almirahs of the institutions to the senior most teacher in the primary section of the said school.
Subsequently articles of charge were submitted containing as many as 14 charges against the petitioner. Thereafter a legal practitioner of the High Court was appointed as an inquiry officer by the Chairman, Howrah District Primary School Council which was duly communicated to the petitioner on the very first day of an inquiry. The petitioner sought for the permission to get an assistance of the legal practitioner and/or friend which was refused by the inquiry officer.
The inquiry officer proceeded in recording the evidence of the several witnesses and ultimately permitted the petitioner to take the legal assistance on 12.02.2009. On 19.02.2009 the petitioner sought for an adjournment showing his inability to engage the legal assistant but the inquiry authority rejected the same and proceeded with the inquiry ex-parte and submitted its report on 10.03.2009 holding that out of 14 charges, 11 charges has been proved beyond any doubt and recommended for exemplary and/or extreme punishment.
Subsequently the disciplinary authority issued a second show cause notice upon the petitioner inviting the reply from the petitioner wherein the petitioner alleged that the inquiry authority acted in bias and with closed mind in dealing the matter.
In affidavit-in-opposition it is a specific stand taken by the respondent authorities that the inquiry being a practicing advocate is no way connected with the District Primary School Council and is well acquainted with the functions and limitations as inquiry authority. It is a specific stand taken by the respondent authorities that a presenting officer on behalf of the council was also present and an opportunity to cross-examine the witnesses was given to the petitioner but he refused to avail such opportunity.
Mr. Indranath Mukherjee, the learned Advocate appearing for the petitioner submits that the inquiry authority have proceeded with the inquiry proceeding with closed mind and acted in bias which would be reflected from the report submitted by it to the disciplinary authority. He further submits that the inquiry authority being a practicing lawyer should have permitted the petitioner to take an assistance of a legal practitioner and having refused initially, shows a bias and predetermined notion. By contending that if an inquiry authority is a legal practitioner himself the delinquent must be accorded an opportunity to take an assistance of a legal practitioner, he relied upon a judgment of the Apex Court in case of Board of Trustees of the Port of Bombay Vs. Dilip Kumar Raghavendranath Nadkarni reported in AIR 1983 SC 109. He submits that the delinquent must be given a reasonable opportunity to defend his case or to put forward his defence and the denial of such opportunity infringes the principal of natural justice as held by the Division Bench in case of Arunagshu Biswas vs. State of West Bengal & Ors. reported in 92 CWN 785. While contending that the inquiry report cannot be sustained in absence of supply of the records/documents which were relied upon, reliance is placed upon a single bench judgment of court in case of Arabinda Das vs. State of West Bengal and Ors. reported in 92 CWN 769. He strenuously submits that the inquiry officer cannot act both as a prosecutor as well as the judge and placed reliance upon a judgment of the Supreme Court in case of State of Uttar Pradesh and Ors. Vs. Saraj Kumar Sinha reported in (2010) 2 SCC 772.
Lastly he submits that the inquiry authority should not have recommended the punishment in his inquiry report by placing reliance upon a judgment of this court in case of State of West Bengal Vs. Sati Prosad Roy reported in 79 CWN
38. Mr. Subir Sanyal, the learned Advocate appearing for the respondent authorities took a preliminary point that the subsequent events cannot be brought in the writ petition by filing a supplementary affidavit but could have been incorporated by amending the writ petition and placed reliance upon the unreported judgment of this court in case of Bhaskar Maity vs. the State of West Bengal and Ors. (W.P. NO. 24714 (w) of 2010 decided on 30.09.2011).
He submits that the writ petition is not maintainable against the issuance of the second show cause notice. He further submits that the court can take into consideration the subsequent events only for the purpose of molding the relief but could not grant the relief in absence of any factual foundation in the pleading and placed reliance upon the judgment of the Supreme Court in case of Ram Roy & Ors. vs. All India Backward Class Bank Employees' Welfare Association & Ors. reported in (2004) 2 SCC 76 and in case of State of Bihar & anr. Vs. Dr Radha Krishna Jha & ors. and Dr Radha Krishna Jha & Ors. Vs. State of Bihar & Ors. reported in (2002) 6 SCC 308.
Lastly he contends that the supplementary affidavit should not be entertained having filed without taking a prior leave and in absence of any prayer for setting aside and/or quashing the order of the disciplinary authority the court cannot grant such a leave.
Having considered the respective submissions the point as emerges in this writ petition is firstly whether the subsequent event cannot be brought by way of a supplementary affidavit without amending the writ petition. Secondly whether the denial of an opportunity to engage a legal practitioner when the inquiry officer himself has a legal expertise, amounts to violation of principles of natural justice.
Point No. 1 :
Admittedly, the writ petition was filed challenging the inquiry report of the inquiry authority on the various grounds including the grounds of bias and violation of principles of natural justice. An interim order was passed in the writ petition permitting the authorities to proceed with the disciplinary proceeding but no final order could be passed before ten weeks from date without expressed leave of the court. It could be gathered from the purport of the said order that the court intended to dispose of the writ petition before the said period of ten weeks as the allegation leveled in the writ petition requires an exchange of affidavits between the parties. Unfortunately, the writ petition could not be disposed of within the period of stipulation, but it could be seen that neither of the parties approached the court either extending the period of restrain or seeking a leave to pass final order. The authorities as it appears have construed the said interim order to be operative till ten weeks from date and thus passed the final order of punishment after the expiration thereof. Technically such stand cannot be faulted but the respondent being the State within the meaning of Article 12 of the Constitution having suffered an interim order should not have acted in haste in inflicting the punishment. Thus it is undisputed that an order inflicting the punishment is passed during the pendency of the writ petition which is an event occurred after the institutions of the writ petition.
In case of Bhaskar Maity (supra) the Co-ordinate Bench was considering a writ petition where challenge was made to a notice dated 23.11.2010 having issued in contravention to section 12(11) of the relevant act. The said writ petition was filed on 28th December, 2010 whereas on December 3, 2010 a resolution was taken by the organization by filing the supplementary affidavit. The said resolution was sought to be impugned in the writ petition. In such perspective it was held that the said fact was known to the petitioner prior to the institutions of the writ petition and the same amounts to suppression of materials fact. However, an observation is made by placing reliance upon a judgment of this court reported in 2009 (2) CHN 947, 2003 (4) CLJ 333 deprecating the bringing of the subsequent events on record by filing a supplementary affidavit. It is noticed from the said unreported judgment that the fact which existed prior to the institutions of the writ petition was sought to be incorporated by way of a supplementary affidavit and in such perspective while holding that the same amounts to suppression of material fact and an observation is made that subsequent event cannot be brought by way of supplementary affidavit.
The Apex Court in case of Motilal Padampat Sugar Mills Company Ltd. vs. State of Uttar Pradesh reported in (1979) 2 SCC 409 was considering a plea of waiver having taken at the time of hearing and held that such plea cannot be allowed in absence of amendment of a pleading or by filing a supplementary affidavit raising such plea in these words:
"5. We shall first deal with the question of waiver since that can be disposed of in a few words. The High Court held that even if there was an assurance given by Respondent 4 on behalf of the State Government and such assurance was binding on the State Government on the principle of promissory estoppel, the appellant had waived its right under it by accepting the concessional rates of sales tax set out in the letter of Respondent 5 dated January 20, 1970. We do not think this view taken by the High Court can be sustained. In the first place, it is elementary that waiver is a question of fact and it must be properly pleaded and proved. No plea of waiver can be allowed to be raised unless it is pleaded and the factual foundation for it is laid in the pleadings. Here it was common ground that the plea of waiver was not taken by the State Government in the affidavit filed on its behalf in reply to the writ petition, nor was it indicated even vaguely in such affidavit. It was raised for the first time at the hearing of the writ petition. That was clearly impermissible without an amendment of the affidavit in reply or a supplementary affidavit raising such plea. If waiver were properly pleaded in the affidavit in reply, the appellant would have had an opportunity of placing on record facts showing why and in what circumstances the appellant came to address the letter dated June 25, 1970 and establishing that on these facts there was no waiver by the appellant of its right to exemption under the assurance given by Respondent 4. But in the absence of such pleading in the affidavit in reply, this opportunity was denied to the appellant. It was, therefore, not right for the High Court to have allowed the plea of waiver to be raised against the appellant and that plea should have been rejected in limine."
(Emphasis Supplied) Although the right to relief should be judged on the basis of the fact existed as on the date of the suit or the legal proceeding but certain developments which has a material bearing on the ultimate relief cannot be thrown away from consideration if the original relief has become inappropriate because of the subsequent event. The Apex court in case of Sheshambal vs. chelur Corp.chelur Building and Ors. reported in (2010) 3 SCC 470 held that the subsequent event should be taken note of if the same would shorten litigation and rendered the complete justice between the parties and such event should be brought in accordance with the rule and procedural law to avoid the surprise to be taken by the advisory.
There is no dispute to the proposition of law that ordinarily the court should not depart from the normal rule of procedure by permitting the litigant to take a new plea without insisting for amendment of the pleading. The reason behind it is obvious that such new fact would adversely affect the other side by taking him to surprise and a sufficient opportunity to canvass his case in counter pleading should be given. As has been held in case of Saraj Kumar Sinha (supra), subsequent event can be brought by way of a supplementary affidavit, the writ petition cannot be thrown out of consideration merely because the subsequent event was not incorporated by way of an amendment but have been allowed to be agitated by filing supplementary affidavit.
In the instant case, it is admitted that an order inflicting the punishment is passed by the disciplinary authority. The foundation of the order passed by the disciplinary authority inflicting punishment is based on the inquiry report and if the inquiry report fails on the well-recognized principle of law then an order of the disciplinary authority cannot stand on an independent footing.
Point No.2 :
Admittedly, the inquiry authority appointed by the Chairman, Howrah District Primary School Council was a legal practitioner of the High court which would be evident from the notice issued by him on his letterhead for fixation of the dates for conducting the inquiry. It is further evident from the recording of the evidence of the witness on the very first day of the inquiry conducted by the inquiry authority that the petitioner prayed for an engagement of the legal assistant which has been refused. It is seen from the sheet, recording the evidence of the witnesses prepared on 04.02.2009, that the said inquiry authority scored off the word "protest" written by the petitioner above his signature which was duly recorded by the petitioner in his letter dated 04.02.2009 which was sent by the registered post as the inquiry authority refused to accept the same. In his reply to a second show cause notice from the recording of the evidences of the witnesses, it is noticed that the inquiry officer himself put questions to the said witness and recorded the answers therein. Not an iota of piece of paper is produced by the respondent authorities in support of their contentions that a presenting officer was engaged and/or appointed but it is evident from the deposition recorded on a sheet of paper that the questions are put by the inquiry authority himself.
It is further noticed that on 19.02.2009, a prayer for adjournment was made by the delinquent on the ground that the legal assistant is suffering from high fever and medical certificate in such respect was also submitted. The inquiry authority not only rejected such prayer but proceeded to record the evidence of the witness and thereafter proceeded with the inquiry ex-parte and ultimately submitted the report. It is inconceivable that an inquiry authority who is expected to act fairly shall delete any statement put by the delinquent in the records of the proceeding. The inquiry authority proceeded within the inquiry proceeding with out permitting the petitioner to have the assistance of the legal practitioner when he himself is a legal practitioner. It is not expected that a person should act as a prosecutor and the judge at the same time as has been held in case of State of Uttar Pradesh and ors. Vs. Saroj Kumar Sinha reported in (2010) 2 SCC 772 in the following words:
"27. * * * * * * * * * * * * * * * * This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge."
It has been held by the Supreme Court in case of Dilipkumar Raghavendranath Nadkarni (supra) that where the delinquent officer is pitted against a legally trend person then he should be allowed to defend himself through a legal practitioner and any refusal to such request would amount to denial of a reasonable opportunity to defend which is an essence of the principles of natural justice in following words:
"12. Are we charting a new course? The answer is obviously in the negative. In C.L Subramaniam v. Collector of Customs, Cochin, (1972) 3 SCR 485 : (AIR 1972 SC 2178) a Government employees requested the Enquiry Officer to permit him to appear through a legal practitioner and even though a trained public prosecutor was appointed as Presenting Officer, this request was turned down. When the matter reached this Court, it was held that the enquiry was in breach of the principles of natural justice. The order of the domestic tribunal was sought to be sustained on the submission that sub-rule (5) of Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 lays that "...The Government servant may present his case with the assistance of any Government servant approved by the Disciplinary Authority as aforesaid is a legal practitioner or unless the Disciplinary Authority, having regard to the circumstances of the case, so permits." The submission was that it is a matter within the discretion of the Enquiry Officer whether to grant permission and more so because the relevant rule fetters the claim to appear through a legal practitioner. Negativing this contention, this Court held that the fact that the case against the appellant was being handled by a trained prosecutor was by itself a good ground for allowing the appellant to engage a legal practitioner to defend him lest the scales should be weighted against him. This conclusion was recorded after reference to the earlier decisions in Brooke Bond India (Pvt.) Ltd. v. S. Subba Ramman, (1961) 2 Lab LJ 417 and Dunlop Rubber Co. v. Workmen (AIR 1965 SC 1392). Reference was made to Pett's case (1968) 2 All ER 545, referred to earlier, but it is observed that this case has not commended itself to this Court. The earlier cases of this Court were distinguished. In our view we have reached a stage in our onward march to fairplay in action that where in an enquiry before a domestic tribunal the delinquent officer is pitted against a legally trained mind, if he seeks permission to appear through a legal practitioner the refusal to grant this request would amount to denial of a reasonable request to defend himself and the essential principles of natural justice would be violated. This view has been taken by a learned single judge and while dismissing the appeal in limine approved by the Division Bench of the High Court commends to us. Therefore, this appeal is liable to be dismissed."
The denial of a permission to defend a delinquent through a legal practitioner when the employer is conducting a disciplinary proceeding through a legally trend minds would result into uneven skills and the balance is tilted against the delinquent. There must be a fair attitude and fair play in action against an employee who is at the risk of being punished which includes the removal or dismissal from service. The view expressed in Dilipkumar Raghavendranath Nadkarni (supra) is reiterated in a subsequent judgment rendered by the supreme court in case of Director, BCG Vaxin Laboratory Madras vs. S Pandian and Ors. reported in (1997) 11 SCC 346 in the following:
"3. It is no doubt true that in the rules governing the disciplinary proceedings no provision is made with regard to payment of fees or remuneration to the legal practitioner who is permitted to assist the government servant in cases where the Presenting Officer appointed by the disciplinary authority is a legal practitioner. Explaining this right of a government servant to seek the assistance of a legal practitioner in cases where the Presenting Officer happens to be the legal practitioner, this Court in Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni has said: (SCC p. 130, para 10) "The Inquiry Officer combines the judge and prosecutor rolled into one. Witnesses are generally employees of the employer who directs an enquiry into misconduct. This is sufficient to raise serious apprehensions. Add to these uneven scales, the weight of legally trained minds on behalf of employer simultaneously denying that opportunity to delinquent employee. The weighted scales and tilted balance can only be partly restored if the delinquent is given the same legal assistance as the employer enjoys. Justice must not only be done but must seem to be done is not a euphemism for courts alone, it applies with equal vigour and rigour to all those who must be responsible for fair play in action. And a quasi-judicial tribunal cannot view the matter with equanimity on inequality of representation. This Court in M.H. Hoscot v. State of Maharashtra clearly ruled that in criminal trial where prosecution is in the hands of public prosecutor, accused, for adequate representation, must have legal aid at State cost. This will apply mutatis mutandis to the present situation."
4. In that case this Court has referred to with approval the following observations of Lord Denning in Pett v. Greyhound Racing Assn. Ltd. (SCC p. 129, para 8) "The trend therefore is in the direction of permitting a person who is likely to suffer serious civil or pecuniary consequences as a result of an enquiry, to enable him to defend himself adequately, he may be permitted to be represented by a legal practitioner."
Therefore, refusal to grant permission to defend through a legal practitioner not only offends the fair play in action but violates the principle of natural justice as well.
Admittedly, in the instant case, the petitioner was constantly seeking permission to engage a legal practitioner to defend himself but the same was refused from time and again until alter the recording of the evidence of the several witnesses. The inquiry authority could not have refused the adjournment to the petitioner when a medical certificate was produced evidencing that the legal practitioner is suffering from a high fever. The inquiry authority could not have scored off any statement made by the delinquent during the course of the proceeding which shows the amount of bias and partiality in the form of supremacy. Thus I find that the petitioner was not given an opportunity to defend himself properly and was thus subject to violation of the principles of natural justice.
Before concluding it may be pertinent to record that against the findings of the inquiry authority, the petitioner submitted all the documentary evidence before the disciplinary authority in support of his statement made in reply to a show cause notice, but the disciplinary authority have proceeded mechanically in passing the order without giving any credence and/or adherence to the same.
On perusal of the inquiry report, it appears that the inquiry authority not only recorded its finding on each articles of the charge but also proposed the extreme punishment to be imposed. Rule 9 of the West Bengal Primary Education, (Conduct of Services of Teachers of Primary Schools) Rules 2001 provides that the report of the inquiry authority shall contain the articles of charge in the form as may be prescribed by the State Government and the statement of imputations of misconduct or misbehaviour, the defence of the teacher, if any, in respect of each of articles of charge, and assessment of the evidence in respect of each articles of charge and the findings of the inquiry authority on each articles of charge and reason thereof. Thus any imputations in the form of suggestion and/or finding regarding the quantum of punishment is contrary to the statutory rule and on such score the said inquiry report is liable to be quashed and set aside.
Thus the inquiry proceeding cannot be said to be bona fide having conducted after giving an opportunity of hearing to the petitioner and is liable to be quashed and set aside.
The inquiry report is, therefore, quashed and set aside as having made in gross violation of the principles of natural justice. After the quashment of the inquiry report the order passed by the disciplinary authority inflicting the punishment on the basis of the said report cannot be sustained and as such the same is also quashed and set aside. Since the misconduct alleged by the authorities relates to a defalcation of funds of government exchequer, there is no impediment on the part of the authorities to continue with the disciplinary proceeding even after the attainment of the superannuation by the petitioner. The respondent authorities are directed to conduct a de novo inquiry after giving an opportunity to the petitioner to defend himself through a legal practitioner. The entire exercise shall be completed by the authority within six months from the date of the communication of this order.
The writ petition is thus allowed.
There shall be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Harish Tandon, J.)