Calcutta High Court (Appellete Side)
Debasis Sutradhar vs State Of West Bengal & Ors on 22 March, 2013
Author: Indira Banerjee
Bench: Indira Banerjee, Anindita Roy Saraswati
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(APPELLATE SIDE)
W.P.S.T. No. 125 of 2012
DEBASIS SUTRADHAR
VS.
STATE OF WEST BENGAL & ORS.
BEFORE:
The Hon'ble Justice INDIRA BANERJEE
AND
The Hon'ble Justice ANINDITA ROY SARASWATI
For the Petitioner : Mr. Tapabrata Chakraborty
Md. Yusuf Ali
For the State : Mr. Subrata Mukherjee
Mr. Subrata Dasgupta.
Heard on : 14.05.2012 & 15.05.2012
Judgment on : 22.03.2013
INDIRA BANERJEE, J.: On or about 13th June, 1981 the petitioner was
appointed as a Constable of the West Bengal State Armed Police. The petitioner
was later transferred from the West Bengal State Armed Police to the West Bengal
Police. The petitioner has alleged that his wife deserted the petitioner and his two
minor sons and a minor daughter, as a result of which the petitioner was put to
tremendous mental tension as a consequence of which he fell ill. The petitioner
could not attend to his duties from 16th June, 2004 to 8th August, 2004, allegedly
on account of illness.
According to the petitioner, the petitioner made a written representation
dated 9th August, 2004 to the Superintendent of Police, Murshidabad explaining
his absence and requested the Superintendent of Police to allow the petitioner to
join service.
The prayer was allowed and the petitioner was allowed to join. However,
after a preliminary enquiry by the Superintendent of Police, a charge sheet dated
7th September, 2004 was issued to the petitioner along with a statement of
allegations. The petitioner was charged with unauthorized absence from 16th
June, 2004 to 8th August, 2004 and also with insubordination and/or
disobedience of various lawful orders issued by the petitioner's superior between
19th June, 2004 and 20th July, 2004, requiring him to join duty.
One Mahadeb Chakraborty was appointed Enquiry Officer. The Enquiry
Officer held that the charges levelled against the petitioner had been established
beyond doubt. The petitioner allegedly admitted his absence, but gave
explanations which were not found to be acceptable. The Superintendent of
Police, being the Disciplinary Authority imposed on the petitioner the major
penalty of dismissal from service with effect from 28th February, 2005.
The petitioner appealed to the Appellate Authority being the Deputy
Inspector General of Police, Murshidabad Range, West Bengal. The appeal was
dismissed by an order dated 11th May, 2005.
The petitioner filed an application before the West Bengal Administrative
Tribunal under Section 19 of the Administrative Tribunals Act, 1985 being
original Application No.886 of 2005 challenging the disciplinary action against
him and praying for his reinstatement.
The petitioner has contended that the Disciplinary Authority had, in
awarding to the petitioner the major penalty of dismissal from service, acted in
flagrant violation of principles of natural justice.
The petitioner had been charged with the allegation of unauthorized
absence from 16th June, 2004 to 8th August, 2004 and with insubordination
and/or disobedience for his failure to rejoin despite orders issued by his
superiors.
The Enquiry Authority was thus required to ascertain and/or adjudicate
whether the petitioner was absent during the period from 16th June, 2004 to 8th
August, 2004, and if so, whether such absence was unauthorized; whether any
orders had at all been issued directing the petitioner to rejoin; and if so, whether
such orders were communicated to and/or within the knowledge of the petitioner
and whether the petitioner intentionally flouted those orders.
On a perusal of the enquiry report it appears that even though the
petitioner failed to submit his written statement of defence before the Enquiry
Authority, his explanation submitted to the Superintendent of Police was
considered as his written statement of defence. The enquiry authority held as
follows:-
"The charge constable failed to submit written statement of
defence although he was asked to submit the same. It is useless to
drag the proceeding for want of written statement of defence.
However the application submitted by the charge constable to
Superintendent of Police, Murshidabad (Exhibit - "F") is considered
as written statement of defence. I have considered the evidence on
record minutely and have considered the pros and crons after
applying judicial mind. Due importance was given to the application
submitted by the C.C. exhibit "F" and the same was judged from
the legal aspects of time arriving at conclusion. The charged
constable 1510 Debasish Sutradhar of LOR absented himself
unauthorisedly from Berhampore Police Lines from 16.06.04 PM.
RO, Murshidabad inform him on 19.06.04, 30.06.04, 14.07.04 and
28.07.04 to join him duty. But he did not eare to obey the order of
superior and also did not inform the appropriate authority
regarding his absence. On 08.08.04 PM the reported his arrival and
submitted prayer for granting EL from 16.06.04 to 08.08.04 i.e.-54
days. Dy.SP(AP) was pleased to call him in OR and recommended
for proceeding and S.P., Murshidabad was pleaded to order and
the above proceeding started.
The fact in issue of this proceeding was to decide as to
whether the C.O. unbecoming a member of Police force derelicted
his duty with gross misconduct or not.
Firstly, he left the HQ, without intimating any officer and
2ndly he was asked in four times to resume his duty. But he did
not carry out the order of the superior. He is in habit to absent
himself from duty. It is a gross misconduct and considering all this
and judging from all corners, I am of the opinion that the charge
leveled against the charge constable has been established beyond
doubt.
Proceeding file with all connected papers, documents placed
below for kind perusal."
On consideration of the enquiry report the Disciplinary Authority passed
an order dated 9th February, 2005, the relevant part of which is set out
hereinbelow:-
"Shri Gyanwant Singh, IPS, the then S.P. Murshidabad
framed the above charges. You were directed to state in writing
within 7 (seven) days on receipt of the Charges and Statement of
allegation as to whether you plead guilty to the charges or prefer
an open enquiry.
You submitted your reply on 05.10.04 for open enquiry.
Hence the enquiry was endorsed to Shri Mahadeb Chatterjee, the
then Highway Inspector, Zone-II, Murshidabad. During enquiry as
many as 1 prosecution witness was examined and relevant
documents were exhibited by the enquiring officer. You neither
submitted any list of DWs nor submitted your written statement of
defence. After scanning the evidence on record the enquiring officer
submitted his findings and held you guilty to the charges.
I have gone through the charges, statement of allegations,
the statement of PWs, written statement of defence and the
findings submitted by the enquiring officer. I also consulted the
service record and it is revealed that you are habitual offender. 7
(seven) proceedings vide S.A.P. 4th Bn Proc. No.15/89 dt.
03.06.089, Proc. No.3/93 dt. 29.01.93, Calcutta Airport Dist. Proc.
No. 6/96, Proc. No.7/01 dt. 25.07.01, Murshidabad District Proc.
No. 67/02 dt. 29.07.02, Proc. No. 84/03 dt. 18.06.03 and Proc. No.
33/04 dt. 25.05.04 were drawn up against you in earlier occasions
for your unauthorized absence. It is observed that you have been
awarded Major Punishment on seven occasions for remaining
unauthorisedly absent for a cumulative period of 1287 days. You
were given opportunity in all the occasions to rectify yourself but
you did not do so. Your service is prejudicial for the discipline of the
Police department.
Hence you are directed to show cause within 7 (seven) days
on receipt of this show cause notice as to why you should not be
dismissed from service."
The petitioner as observed above replied to the show-cause notice praying
that he be pardoned and given a chance to continue in service. The disciplinary
authority, however, imposed on the petitioner the punishment of dismissal from
service, inter alia holding as follows:-
"He was directed to show cause as to why he will not be
dismissed from service for remaining unauthorisedly absent for a
cumulative period of 1287 days in earlier occasions and 53 days in
the instant proceeding. He is submitted written reply on 23.05.05
wherein he stated that, he was unable to perform Govt. duty due to
his family problems and begged pardon.
I heard the charged constable in person wherein he stated
that he was unable to perform Govt. duty due to his family
problems and begged pardon, promising that such dereliction of
duty will not be repeated. In view of his past record his promise is
not believable. More over Murshidabad District proceeding No.
64/04 dt. 03.11.04 has also been drawn up against him for his
unauthorisedly absent for a period of 77 days which is pending for
enquiry. The service of the charged constable is Pre-Judicial to the
state.
Having applied my judicious mind and being free from all
encumbrances I order that:-
1.His absent period from 16.06.04 PM to 08.08.04 PM is treated as EOL.
2. He is dismissed from service with effect from 28.02.05 PM.
He will not get anything more what he has already drawn during his service except his personal savings."
In the appeal filed before the Appellate Authority, the petitioner contended that even though the petitioner might have admitted that overstaying leave without proper authority or admitted that absence without leave tantamounted to an act of indiscipline, such act did not constitute such moral turpitude which warranted infliction of the major punishment of dismissal. In support of his contention, the petitioner cited the judgement of this Court in Nirode Roy Vs. D.I.G. reported in 1987 (1) CHN 457. The Appellate Authority, however, approved the final order of punishment. After recording the facts, the Appellate Authority held as follows:-
"The appellant received the Copy of Final Order on 28.02.2005. As the appellant was not satisfied with the Final Order he submitted an appeal petition against the Final Order of the proceeding to me.
I have carefully gone through the Charge, Statement of allegations, Statement of PW, exhibits, the findings submitted by the E.O. and Final Order passed by the Superintendent of Police, Murshidabad in this proceeding. I am in opinion that the enquiry the enquiry had been conducted rightly in this proceeding and the Supdt. of Police, Murshidabad had apprehend his judicious mind in passing Final Order in this proceeding.
I have also carefully scrutinized. The appeal petition filed by the Charged Constable against the Final Order passed by the Superintendent of Police, Murshidabad Dist. I opine that the appellant could not put any cogent point in his petition to rebut the Charge which were passed against him. I have further examined the quantum of punishment inflicted upon the appellant by the Superintendent of Police, Murshidabad in his Final Order. The punishment was proper and proportionate to the gravity of the proved charges.
Hence, I approve the Final Order passed by the Superintendent of Police, Murshidabad Dist.
The disciplinary proceedings conducted against the petitioner smacks of apparent legal infirmities. Irrespective of whether a charge-sheeted employee files a written statement of defence or not, the prosecution is required to prove the charges in the enquiry. The Enquiry Authority also proceeded on the basis that the charges were required to be proved which is evident from the Enquiry Report itself.
In the instant case, there were two charges against the petitioner, the first of unauthorized absence, and the second of disobedience in not obeying the order of his superior. The Enquiry Authority has apparently not considered whether the notices directing the petitioner to join were actually served on him or was within his knowledge. Secondly, the Enquiry Officer arrived at the finding that the petitioner was in the habit of absenting himself from duty even though that was not a charge against the petitioner. The petitioner was charged with unauthorized absence between 16th June, 2004 to 8th August, 2004 and with disobeying orders of his superior to directing him to rejoin. The petitioner was never charged with habitual absence. Secondly, the disciplinary authority imposed on the petitioner the major punishment of dismissal on the ground that the petitioner had remained unauthorizedly absent for accumulative number of 1287 days when the petitioner had been charged for absence for about 53 days from 16th June, 2004 to 8th August, 2004.
The enquiry report and/or impugned orders of the disciplinary authority do not indicate if the question of whether the petitioner at all had knowledge of the orders of his superior asking him to rejoin.
It is true, that the petitioner admitted that unauthorized absence was an act of indiscipline, and sought forgiveness contending that he had minor children, whom he would not be able to maintain if he were dismissed. However, the Disciplinary Authority and the Appellate Authority being senior IPS officers ought to have appreciated that the reply of a petty constable could not be pedantically and strictly construed. In any case, at the cost of repetition, it is reiterated that the onus was on the prosecution to establish both the charges against the petitioner.
The Appellate Authority passed a cursory stereotype order rejecting the appeal. There is no discussion of the materials considered, no discussion of the enquiry report, or the order of the Disciplinary Authority. The contentions in the appeal petition have not been discussed at all and the judgments cited by the petitioner have not been dealt with. There can be no doubt, that by remaining unauthorizedly absence for almost two months the petitioner acted in breach of discipline. However, whether major penalty of dismissal was warranted or not was not even considered by the appellate authority or by the learned Tribunal.
In Krushnakant B. Parmar Vs. Union of India & Anr. reported in 2012 (2) Supreme 254, cited by Mr. Chakraborty, the Supreme Court held as follows:-
"16. The question whether unauthorised absence from duty amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful.
18. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. 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.
19. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.
20. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority is also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty.
21. The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.B. Bijlani vs. Union of India and others reported in (2006) 5 SCC 88 wherein this Court held:
"It is true that the jurisdiction of the Court in judicial review is limited. Disciplinary proceedings, however, being quasi- criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove that charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
22. In the present case, the disciplinary authority failed to prove that the absence from duty was wilfu, no such finding has been given by the Inquiry Officer or the Appellate Authority........"
"25. In the result the appeal is allowed. The impugned orders of dismissal passed by disciplinary authority, affirmed by the Appellate Authority; Central Administrative Tribunal and High Court are set aside. The appellant stands reinstated. Taking into consideration the fact that the Charged Officer has suffered a lot since the proceeding was drawn in 1996 for absence from duty for a certain period, we are not remitting the proceeding to the disciplinary authority for any further action. Further, keeping in view the fact that the appellant has not worked for a long time we direct that the appellant be paid 50% of the back wages but there shall be no order as to costs."
In this case too, the Enquiry Authority, the Disciplinary Authority and the Appellate Authority have not at all considered the question of whether the absence of the petitioner was deliberate, even though they may have been satisfied that the absence was unauthorised.
There can be no doubt that habitual absenteeism tantamounts to gross violation of discipline as held by the Supreme Court in Union of India Vs. Bishamber Das Dogra reported in (2009) 13 Supreme Court Cases 102. However, in this case the petitioner has not been charged with habitual absenteeism. The judgement is thus distinguishable on facts.
The unreported judgement of the Division Bench in W.P.S.T. 316 of 2010 Smt. Chayana Tanti and 4 Others Vs. State of West Bengal & Others, cited on behalf of the State was rendered in the particular facts of that case. A judgement is a precedent for the issue of law that is raised and decided and not that, which may be deduced logically from the judgment. Moreover, a judgement is to be construed in the context of the facts in which the judgement is rendered. In Smt. Chayana Tanti's case (supra) the Division Bench inter alia held that the ratio decided in a case had to be applied in the factual matrix involved in the case. The Division Bench found on facts that the concerned employee in that case, a member of the disciplined force had been a habitual absentee. Smt. Chayana Tanti's case (supra) was not one where the employee concerned had been held guilty of an offence with which she was not at all charged, as in this case. The charges not having been set out in the judgement, it may reasonably be presumed that the concerned employee had been charged with habitual absence. The judgement was, in any case, rendered before the judgement of the Supreme Court in Krushnakant B. Parmar Vs. Union of India & Anr. (supra) referred to hereinabove.
There can be no doubt, that in exercise of the power of judicial review, Courts and Tribunals do not exercise appellate powers. However, in a case like this where the Enquiry Authority, the Disciplinary Authority and the Appellate Authority did not address questions which were required to be addressed and penalized the petitioner for an offence with which he had never been charged, the order of punishment cannot be sustained. The Courts and Tribunals are duty bound to interfere with such orders in exercise of the power of judicial review. In the absence of any charge against the petitioner of habitual absence, and in view of the procedural infirmities discussed above, particularly the omission of the Enquiry Authority to consider the questions that were required to be addressed including the question of whether the purported order which the petitioner allegedly disobeyed were at all communicated to and within the knowledge of the petitioner, the entire proceeding are vitiated by violation of principles of natural justice.
As observed above the Enquiry Authority held that both the charges against the petitioner that is charge of unauthorized absence and the charge of disobedience and/or insubordination were proved. While the finding in respect of unauthorized absence was based on admission and otherwise borne out by evidence, the finding of insubordination and/or disobedience is not sustainable in law for the reasons discussed above and in particular, the reason that the Enquiry Authority did not address the issue of whether the petitioner had knowledge of the orders which were allegedly disobeyed. Communication of those orders or the petitioner's knowledge of the same have not been proved by evidence.
The orders of punishment of dismissal had been imposed and upheld in appeal on the premises that the petitioner was not only guilty of unauthorized absence but of habitual unauthorized absence and also disobedience of lawful orders and insubordination. The findings of disobedience and insubordination are not based on cogent materials on record and, hence, unsustainable in law. The petitioner not having been charged with habitual absence, the finding of the habitual absence is unsustainable in law and violative of natural justice. Punishment of dismissal on the ground of unauthorized absence alone cannot be sustained, as such punishment is disproportionate to the gravity of the offence, particularly when there is no finding that the petitioner wilfully and deliberately remained absent unauthorizedly, without reason. In this case the petitioner took the plea of illness.
In our view, the learned Tribunal should have interfered with the order of punishment of the Disciplinary Authority as also the order of the Appellate Authority in exercise of its power of judicial review under Article 226 of the Constitution of India. The learned Tribunal failed to appreciate that the impugned Appellate Order and the impugned order of the Disciplinary Authority were vitiated by serious infirmities as noted above.
The order of the Tribunal cannot be sustained and the same is set aside and quashed.
The Appellate Order and the order of punishment are set aside. The petitioner shall be reinstated in service with 50 per cent back wages. It will, however, open to the authority concerned to proceed against the petitioner from the stage of the enquiry and to impose on the petitioner any penalty other than the penalty of dismissal, termination or removal from service.
The writ application is disposed of accordingly.
Urgent photostat certified copy of this judgment and/or order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.
(INDIRA BANERJEE, J.) ( ANINDITA ROY SARASWATI, J.)