Calcutta High Court
Dipak Kumar Lahiri vs National Insurance Company Limited & ... on 14 May, 2010
1
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice S.P. Talukdar
W.P. No. 1708 of 2006
G.A. No. 2417 of 2008
Dipak Kumar Lahiri
Vs.
National Insurance Company Limited & Ors.
For the Petitioner: Mr. Kalyan Bandyopadhyay
Mr. Sagar Bandyopadhyay,
Mrs. Soma Kar Ghosh,
Mr. Sanjoy Kumar Ghosh.
For the Respondents: Mr. Dipak Kumar Ghosh,
Mr. Ranjay De.
Judgment on : 14.05.2010.
S.P. Talukdar, J.: By filing the instant application under Article 226 of the Constitution, the petitioner, Dipak Kumar Lahiri, sought for a declaration that the provisions of Rules 42, 44 and 47 of the General Insurance (Employees') Pension Scheme, 1995 are ultra vires to Section 17A of the General Insurance Business (Nationalization) Act, 1972, Articles 14 and 16 of the Constitution. The petitioner further sought for issuance 2 of a writ of mandamus restraining the respondents from giving any effect and/or further effect of the impugned charge sheet dated 3rd October, 2002, the report of enquiry in pursuance of the said charge sheet and the final order of punishment dated 31st October, 2005. The petitioner sought for a direction upon the respondents for withdrawal of the charge sheet as well as the final order and the order dated 22nd January, 2007 passed by the respondent No. 3.
The backdrop of the present case may briefly be stated as follows:-
The writ petitioner after retiring as Assistant Administrative Officer, National Insurance Corporation, was drawing pension @ Rs. 7,005/- per month. After 2 ½ years of his retirement, a disciplinary proceeding was initiated against him by respondent No.5. A Memorandum of Charge dated 3rd October, 2002 was issued alleging that he was one of the cheque signatories who had signed six cheques favouring the persons not being insured. It was alleged that as a result of such wrongful action, there had been double payments in respect of such six matters. It resulted in wrongful loss to the company to the tune of Rs. 2,29,672/-. It was alleged that the petitioner, thus, had committed misconduct by failing to discharge his duties with utmost integrity and acted in a manner prejudicial to the interest of the company, which is unbecoming of a public servant. He contravened Rules 3(1)(i)(ii)(iii)(iv) and 3(2) of the General Insurance (Conduct, Discipline & Appeal) Rules, 1975. It was further alleged that the petitioner, thus, committed misconduct under Rules 4(1), 4(5) and 4(21) of the said Rules. Respondent No. 3, thus, proposed to hold an enquiry against the writ petitioner under Rule 25 of the General Insurance (Conduct, Discipline & 3 Appeal) Rules, 1975 as amended up to date read with Rules 44 and 47 of the General Insurance (Employees') Pension Scheme, 1995.
In reply to such charges sheet, the petitioner expressed that it was impossible for him to give proper explanation at that belated stage unless he was given access to verify the cheques in question, the claim vouchers and other relevant documents. He also stated that he might have signed the cheques only after the same were prepared on verification of the vouchers and other documents by the accounts department and that too, as one of the signatories. The petitioner gave his remarks in respect of each and every imputation and certainly, without admitting any of those. The petitioner, thereafter, came to learn that such Memorandum of Charge were also issued to two existing employees of the Insurance Company, namely, Mr. S. Datta Gupta and Mr. P. Banerjee as well as another retired employee, Mr. N. K. Kundu. By an order dated 17th December, 2002, the Disciplinary Authority directed that the proceedings against all four of them would be held in common as per Rule 29 of General Insurance (Conduct, Discipline & Appeal) Rules, 1975. An Enquiry Officer was appointed in connection with such common proceeding as per Rule 25(6) of the said Rules. Such enquiry was held during the period from 16th April, 2003 to April, 2004. An enquiry report was submitted on 26th April, 2004 before the Disciplinary Authority. The Enquiry Officer in his enquiry report came to a finding that the charges against the petitioner stood proved. By letter dated 13th January, 2005, the Disciplinary Authority asked the petitioner to submit his representation. The petitioner submitted his representation by letter dated 2nd February, 2005. On 1st November, 2005, the petitioner received an order of punishment dated 31st October, 2005. The Disciplinary Authority in 4 purported exercise of his powers conferred under Rule 26 of the General Insurance (Conduct, Discipline & Appeal) Rules, 1975 as amended read with Rules 44 and 47 of the General Insurance (Employees') Pension Scheme, 1995 imposed "major penalty" of "permanent withdrawal of pension" against the writ petitioner.
The order dated 31st October, 2005 passed by the Disciplinary Authority was then assailed by the writ petitioner by way of preferring an appeal by letter dated 11th January, 2006. The said appeal, however, remained unattended for a period of more than six months. This prompted the petitioner to file this writ application seeking redressal of his grievances. The learned Court while giving direction for filing of Affidavits passed an interim order, inter alia, staying the operative effect of the impugned order of punishment till further order of this Court. Without taking any leave of the Court, the Appellate Authority after communication of this Court's interim order took up the said appeal - without any prior notice and without giving any opportunity of personal hearing. An appeal was preferred against this Court's interim order dated 4th January, 2007. Since the respondent authority did not release pension in favour of the petitioner in compliance with the interim order dated 4.1.2007, a contempt application was filed. With the issuance of contempt rule, the respondent authorities released all arrear pension and also the current pension of the petitioner. The writ appeal was disposed of by learned Division Bench of this Court by order dated 30th June, 2008, inter alia, holding that since the order impugned in the writ application has been upheld by the Appellate Authority, it would be necessary for the writ petitioner to amend the writ application and to challenge the order passed by the Appellate Authority. The Hon'ble Division Bench recorded that it would be wholly 5 unnecessary for this Court to decide the appeal on merit as the entire matter would have to be adjudicated by the learned Single Bench after giving due opportunities to the parties concerned and also for consideration as to whether the writ petitioner would be entitled to continue receiving the pensionery benefit during the pendency of the proceedings. The writ application was, thus, remanded on the limited ground upon setting aside the impugned order dated 4th January, 2007. The writ application was, thereafter, amended in terms of this Court's order dated 18.8.2008 incorporating thereby the petitioner's challenge to the order of the Appellate Authority dated 22nd January, 2007. The petitioner also filed an application, being G.A. No. 2417 of 2008 seeking an interim order in pursuance of the liberty granted by the learned Division Bench. The writ application as well as the application for interim order were, thereafter, taken up for hearing together.
The vires of Rules 42, 44 and 47 of the General Insurance (Employees') Pension Scheme, 1995 have not been subsequently challenged at the time of hearing of the application.
Respondent/National Insurance Company Limited contested the case by filing an Affidavit-in-Opposition whereby the material allegations made by the writ petitioner had been denied.
It had been claimed that the disciplinary enquiry was held in strict compliance with the principles of natural justice. The proceedings were conducted in conformity with paragraphs 44 and 47 of the General Insurance (Employees') Pension Scheme, 1995. Such respondent claimed that the authority concerned had competence to initiate such a disciplinary proceeding even after 2 ½ years of the petitioner's retirement. It denied that it 6 did not have the jurisdiction to impose "major penalty" of "permanent withdrawal of pension". Such respondent denied that initiation of the disciplinary proceeding and the manner in which it was conducted as well as the findings of the disciplinary authority and the appellate authority are all arbitrary or, not free from bias. Such respondent/National Insurance Company Ltd. further denied that the charge sheet suffers from any vagueness or that the authorities acted in a mechanical or mala fide manner.
Dismissal of the writ application was, thus, sought for.
Though the writ petitioner challenged the vires of Rules 42, 44 and 47 of the General Insurance (Employees') Pension Scheme, 1995, at the time of hearing or the writ application, this point was not pressed. Mr. Kalyan Bandyopadhyay, as learned Senior Counsel, appearing for the writ petitioner, first submitted that the charges brought against the writ petitioner are far too vague and permitting the authority concerned to proceed with an inquiry on the basis of such vague charge would by itself a violation of the principles of natural justice.
It was contended that initiation of a disciplinary proceeding 2 ½ years after retirement of the writ petitioner is not permissible in law. It was further submitted that the disciplinary authority could not have had the jurisdiction to impose "major penalty" of "permanent withdrawal of pension". Learned Counsel for the petitioner referred to the definition of employee under Rule 2(g) of the General Insurance (Conduct, Discipline & Appeal) Rules, 1975. It was submitted that the said Rule relates to existing and/serving employee and does not cover a retired employee. The authority directed common disciplinary proceeding as against four persons, two of whom are existing employees and 7 the other two are retired. It was then submitted that the disciplinary authority imposed final order of major penalty purportedly under Rule 26 of the Discipline & Appeal Rules, 1975. Rule 26 permits imposition of penalties as specified under Rule 23. But major penalties specified under Rule 23 do not include "permanent withdrawal of pension" of a retired employee. The disciplinary authority, thus, did not intend and/or actually initiated a limited enquiry as permitted under Rules 44 and 47 of the General Insurance (Employees') Pension Scheme, 1995 for the purpose of any pecuniary loss as provided under Rule 47 of the said Pension Scheme of 1995. It was submitted that mere reference to Rules 44 and 47 in the charge sheet and the final order of punishment cannot in any way imply that the disciplinary proceeding was intended to be a limited enquiry within the scope and purview of Rules 44 and 47 of the Pension Scheme of 1995.
It was further submitted that with retirement, the relationship of employer and employee comes to an end and so, there could be no further disciplinary control. Mr. Bandyopadhyay, in this context, referred to the Full Bench decision of the High Court of Kerala in the case between R.P. Nair & Anr. And Kerala State Electricity Board & Ors., as reported in AIR 1979 Kerala 135.
Reference was further made to a Division Bench decision of this Court in the case between Kamal Kumar Majumdar And Union of India, as reported in 2008(1) CHN
951.
In response to this, Mr. Ghosh referred to the definition of "pensioner" in paragraph 2 (r) of the General Insurance (Employees') Pension Scheme. It reads :
"Pensioner" means an employee eligible for pension under this scheme. 8 Paragraph 42 of the General Insurance (Employees') Pension Scheme, 1995 reads :
"Withholding or withdrawal of pension: The competent authority may by order in writing, withhold or withdraw pension or a part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct:
Provided that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the minimum pension per mensem payable under this scheme."
Paragraph 44 deals with pensioner guilty of grave misconduct. The same reads:
"In a case not falling under paragraph 43 if the Competent Authority considers that the pensioner is prima facie guilty of grave misconduct, it shall, before passing an order, follow the procedure specified in the General Insurance (Conduct, Discipline and Appeal) Rules framed by the Board of the Corporation or of the Company."
In view of the aforesaid position, there could be little force in the submission that paragraph 42 or for that matter, paragraph 44 does not relate to retired employees. Both the said paragraphs specifically refer to 'pensioner' - leaving thereby little scope for any controversy.
Mr. Bandyopadhyay submitted that even assuming, without admitting the allegations brought against the petitioner, to be true, the quantum of the alleged wrongful loss caused to the respondent No. 1 due to the acts on the part of the writ petitioner is Rs. 2, 29,672/-. 9 There is no dispute that the writ petitioner was one of the cheque signatories and for the self-same wrongful loss disciplinary proceeding was initiated against four persons. The petitioner's pension was sanctioned at around Rs. 7,000/- approximately. According to Mr. Bandyopadhyay, interpreting the scheme of 1995, which would be beneficial to the pensioner as the scheme itself a beneficial law, the disciplinary authority, under no circumstances, was authorized to order permanent withdrawal of pension. It was contended that a pension cannot be treated as bounty payable at the sweet will and pleasure of the authority.
There is no doubt that while construing a provision in a beneficial legislation, the Court would interpret the provision in such a way as to advance the purpose in which the legislation was enacted. The Court certainly is not expected to adopt a narrow and doctrinaire approach, which would destroy or make the provision illusory. It was then submitted that there could, at best, be an order for recovery to the extent of ¼ of the total alleged pecuniary loss of Rs. 2, 29,672/-. The order of punishment as well as that of the appellate authority were, thus, assailed on the ground that the same are arbitrary, mala fide and without jurisdiction.
Mr. Ghosh, referring to the decision in the case between Principal Secretary, Govt. of A.P. & Anr. And M. Adinarayana, as reported in 2004 (6) SLR 432, submitted that unless the punishment imposed is shockingly disproportionate, there is hardly any justification for this Court to interfere.
He further referred to the decision in the case between Union of India & Anr. And K. G. Soni, as reported in JT 2006 (7) SC 509. There too, there Apex Court held that 10 unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the Court, there is no scope for interference.
In order to justify the punishment of permanent withdrawal of pension, Mr. Ghosh referred to the decision of the Apex Court in the case between Indian Railway Construction Co. Ltd. And Ajay Kumar, as reported in (2003) 4 SCC 579. The Apex Court in the said case held that if an act or omission of an employee reflects upon his character, reputation, integrity or devotion to duty or is an unbecoming act, certainly the employer can take action against him.
It was submitted by Mr. Ghosh that the quantum of the actual financial loss, though relevant, was not the main consideration for awarding of punishment of permanent withdrawal of pension. He further submitted that even lesser punishment to other does not vitiate quantum of punishment. In this context, he referred to the Apex Court decision in the case between Balbir Chand And Food Corporation of India Ltd. & Ors., as reported in AIR 1997 SC 2229.
Mr. Bandyopadhyay submitted that the respondents in their Affidavit-in-Opposition to the unamended writ application admitted that prior to passing of the impugned order dated 31.10.2005, the Board of the respondent No. 1 was not consulted. It was, however, claimed that such decision was subsequently ratified by the Board in its 297th meeting. Referring to the 1st proviso to Rule 47(1) of Pension Scheme, 1995, Mr. Bandyopadhyay submitted that it is mandatory for the 'competent authority' to consult the Board of the company before passing any final order under the said Rule. The said provision having not 11 been followed, the disciplinary authority acted without jurisdiction in passing the impugned order dated 31.10.1995.
In response to this, Mr. Ghosh submitted that the absence of consultation or any irregularity in consultation does not entitle the writ petitioner to any relief under the special powers of a High Court under Article 226 of the Constitution or of the Supreme Court under Article 32. Referring to the decision in the case between State of U.P. And Manbodhan Lal Srivastava, as reported in 1958 (1) SCR 533, it was submitted that alleged absence of consultation is not a right, which could be recognized and enforced by a writ.
Mr. Ghosh, in this context, also relied upon another decision of the Apex Court in the case between Union of India & Anr. And T. V. Patel, as reported in 2007(6) SCALE
9. He, in fact, went a step further, while submitting that the word 'shall' in the context of the provision is not mandatory and he sought to derive support from the decision in the case between State of A.P. & Anr. And Dr. Rahimuddin Kamal, as reported in (1997) 3 SCC 505.
Mr. Ghosh further submitted that consultation does not mean concurrence and he sought to strengthen his stand in this regard by referring to the decision in the case between L & T McNeil Ltd. And Govt. of T.N., as reported in (2001) 3 SCC 170.
It was then contended on behalf of the respondent authority that ratification by Board relates to back to the date of the order. Mr. Ghosh relied upon the decisions in the case between Maharasthtra State Mining Corpn. And Sunil, as reported in (2006) 5 SCC 96 and M/s Goa Shipyard Ltd. And Babu Thomas, as reported in JT 2007(8) SC 611. 12
It was further submitted that even if construed as imperative, it does not lead to nullity. In the case between Management, Pandiyan Roadways Corp. Ltd. And N. Balakrishnan, as reported in JT 2007 (7) SC 510, the Apex Court held that application of a statute or principle of law may vary from case to case. It was further observed that only because the statute is imperative, it may not necessarily lead to a declaration that the order impugned is a nullity.
In view of the aforesaid discussion, this Court finds no merit in the grievance relating to absence of prior consultation.
Learned Counsel for the petitioner further submitted that the statement of the Article of Charges would show that the allegations contained therein are absolutely vague. According to him, annexure-1 to the Memorandum of Charge dated 3rd October, 2002 does not contain in specific and clear charge against the petitioner. How there could be any contravention of Rule 3(1)(i)(ii)(iii)(iv) 2 of the Discipline and Appeal Rules, 1975 or how there had been misconduct under Rule 4(1)(5)(21) have not been clearly explained. It was contended that vagueness of the charges vitiates the entire disciplinary proceeding since it violates the principles of natural justice.
Deriving inspiration from the decision of the Apex Court in the case between Sawai Singh And State of Rajasthan, as reported in AIR 1986 SC 995, Mr. Bandyopadhyay submitted that participation of the delinquent employee or the charged officer in a proceeding with vague charges does not exonerate the department to bring home the charges. The enquiry based on such charges would stand vitiated being not fair. 13
While accepting the legal proposition, having regard to the materials available on record and on perusal of the Articles of Charge, I find it difficult to agree and hold that the allegations are far too vague and proceeding on the basis of the same could, by any stretch of imagination, be in violation of the principles of natural justice.
It was thereafter submitted on behalf of the petitioner that no prior notice was given to the writ petitioner notifying the date of enquiry proceeding as held on 20th July, 2003 and 30th July, 2003. Witnesses were examined behind the back of the writ petitioner, as no notice informing the prospective date of enquiry proceedings was given to the petitioner. Though statement of witness was found to have been changed, the written objection submitted by the writ petitioner in respect thereof was not taken into consideration by the enquiry officer. The enquiry officer refused to adjourn the proceedings even in absence of any objection from the presenting officer on 21st November, 2003, 17th December, 2003 and 2nd January, 2004. The enquiry officer closed the proceedings without notice to the writ petitioner and, thus, the petitioner was denied the opportunity to cross-examination P.W. 4 and P.W. 5, whose statements were, however, relied upon by the enquiry officer.
In this context, Mr. Bandyopadhyay, as learned Counsel for the petitioner, referred to the decision of the Apex Court in the case between State of Madhya Pradesh And Chintaman Sadashiva Waishampayan, as reported in AIR 1961 SC 1623 and Nripendra Nath Bagchi And Chief Secretary, Govt. of W.B., as reported in AIR 1961 Calcutta 1. True, the right to cross-examine the witnesses who give evidence against the petitioner is a very valuable right and if it appears that effective exercise of this right has been prevented by the enquiry officer by not giving relevant documents to which he is 14 entitled, it inevitably would mean that the enquiry had not been held in accordance with the rules of natural justice.
In the case of Nripendra Nath Bagchi (Supra), the Division Bench of this Court observed that non-supply of copies of deposition is also a breach of the principle of natural justice.
In response to this, Mr. Dipak Ghosh categorically submitted that in the instant case, the writ petitioner was given adequate opportunity to cross-examine P.W. 4 and P.W. 5, but he declined to do the same. It was then submitted that the proceedings of enquiry would amply justify that the petitioner was bent upon stalling the enquiry on one pretext and other. Since adjournment could not have been claimed as a matter of right and in absence of any prejudice caused to the petitioner who was afforded opportunity to cross-examine the witnesses, there could be no violation of the principles of natural justice.
The manner in which the enquiry proceeding had been conducted in the case under reference does not suggest that there had been any occasion worth mentioning to deny the writ petitioner either any opportunity to cross-examine the relevant witnesses or in any other manner.
The report of the enquiry officer was then assailed on the ground that the said authority in course of enquiry travelled beyond the scope and purview of the charge sheet. Referring to the decision of the Apex Court in the case between M. V. Bijlani And Union of India & Ors., as reported in 2006(3) Supreme 393, it was submitted on behalf of the petitioner that the enquiry officer is not permitted to enquire into the allegations with which the delinquent officer had not been charged with.
15
Mr. Ghosh on behalf of the respondent authority submitted in this context that the findings of the enquiry officer are based on the materials on record and reasons have been assigned for the conclusion arrived at. The jurisdiction of the Court in judicial review being limited, while findings are based on some evidence, no interference is called for.
Mr. Ghosh, referring to the decision of the Apex Court in the case between KSRTC (NWKRTC) And A. T. Mana, as reported in JT 2004 (8) SC 103, submitted that once the domestic tribunal arrived at a conclusion on the basis of available evidence, it is not open to the appellate tribunal to substitute their view in place of the one arrived at by the domestic tribunal.
In the case between High Court of Judicature at Bombay And Shashikant S. Patil, as reported in 2000 (1) SCC 416, it was held that the settled legal position is that if there is some legal evidence on which the findings can be based then adequacy or even reliability of the evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution.
Referring to the decision of the Supreme Court in the case between The State of Punjab etc. And Bhaktawar Singh & Ors., as reported in AIR 1972 SC 2083, it was submitted by Mr. Bandyopadhyay that if the order is not a speaking order and if it is arbitrary to the core, such an order cannot be upheld.
He further referred to the decision in the case between Ram Chander And Union of India, as reported in AIR 1986 SC 1173, while submitting that the appellate authority must not only give hearing to the charge sheeted officer concerned but also pass a reasoned order dealing with the contentions raised by him in the appeal. Though reference was also 16 made to the decision in the case between Ranjit Thakur And Union of India & Ors., as reported in AIR 1987 SC 2386, having regard to the issues raised therein, it does not seem to have any application to the facts and circumstances of the present case.
Mr. Ghosh submitted that the legal complexion regarding service related matters has undergone radical change. The position of law in respect of the procedural aspects of an enquiry need be viewed from the touchstone of prejudice. It was further added that there had hardly been any averment of prejudice.
On behalf of the respondent authority, reference was made to the decision in the case between Uttaranchal Road Transport Corpn. & Ors. And Mansaram Nainwal, as reported in JT 2006 (7) SC 25 in support of the contention that when the disciplinary authority agrees with the findings of the enquiry officer and accepts the reasons given by him in support of such findings, it is not necessary for the punishing authority to re-apprise the evidence to arrive at the same findings.
Mr. Ghosh, referring to the decision in the case of Uttaranchal Road Transport Corpn. (Supra), submitted that according to the well-settled theory of precedents, every decision contains three basic postulates (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above.
Lord Halsbury in the case between Quinn V. Leathem [1901] AC 459, observed:
"A case is only authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to flow logically from it." 17
Every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but govern and are qualified by the particular facts of the case in which such expressions are to be found.
In the book "Precedent in English Law" by Rupert Cross and J. W. Harris (4th Edition), it had been observed :
"It is not everything said by a judge when giving judgment that constitutes a precedent. In the first place, this status is reserved for his pronouncements on the law, and no disputed point of law is involved in the vast majority of cases that are tried in any year. The dispute is solely concerned with the facts."
Another reason why it is not everything said by a judge in the course of his judgment that constitutes a precedent is that, among the propositions of law enunciated by him, only those which he appears to consider necessary for his decision are said to form part of the ratio decidendi and thus to amount to more than an obiter dictum.
"If the judge in a later case is bound by the precedent according to the English doctrine of stare decisis, he must apply the earlier ratio decidendi however much he disapproved of it, unless, to use the words of Lord Reid, he considers that the two cases are 'reasonably distinguishable'. Dicta in earlier cases are, of course, frequently followed or applied, but dicta are never of more than persuasive authority. There is no question of any judge being bound to follow them."
Sir Holdsworth's general thesis was that the English doctrine of precedent hits the golden mean between too much flexibility and too much rigidity; for it gives to the legal 18 system the rigidity which it must have if it is to possess a definite body of principles, and the flexibility which it must have if it is to adapt itself to the needs of a changing society.
In 1944 a full Court of Appeal of six judges had held that the Court of Appeal was bound to follow its own decisions. ( Ref: Young v. Bristol Aeroplane Co. Ltd. (1944) 1 KB
719).
There were, however, three exceptions to this rule :
1. The court is entitled to decide which of two conflicting decisions of its own it will follow.
2. It is bound to refuse to follow a decision of its own which cannot stand with a decision of the House of Lords.
3. It is not bound to follow a decision of its own if given per incuriam [when a case or statute has not been brought to the court's attention and the decision was given in ignorance thereof].
Lord Denning said :
"For I observe that, in the past, when the lawyer's precedents have been found to work injustice, they have been corrected, as often as not, by the actions of juries; or by the Lords of Parliament who were, for the most part, not lawyers. It is these ordinary folk who have broadened the basis of freedom, not by sticking to bad old precedents, but by making good new ones."
Talking about precedent, he said :
"If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice 19 comes tumbling down about them. They will be lost in 'The codeless myriad of precedent. That wilderness of single instances.' The common law will cease to grow. Like a coral reef it will become a structure of fossils."
Professor T. B. Smith of Edinburgh University said :
"Why should a court, which in the past clearly refused to be strictly bound by precedent (and has subsequently tied its own hands) not resume the earlier and more equitable practice ? It is astonishing to observe the most eminent legal minds of the country reacting to the prison of precedents (of precedents which they recognize as unjust) like a child who has shut himself in a room and screams to be let out - presumably by the legislature."
So far the present case is concerned, as it appears from the aforesaid discussion, there is no reason to hold that the charges lavelled against the petitioner are vague. It cannot also be said on perusal of the same that anything was left to imagination.
So far the grievance that the petitioner was not given reasonable opportunity to defend himself is concerned, the materials on record do not even remotely substantiate the same. Having regard to the factual details, I find it difficult to accept that the writ petitioner was, at any stage, denied proper and reasonable opportunity to defend himself. The fact that he made desperate efforts to disturb or throttle the proceeding cannot also be lost sight of.
True, if a domestic tribunal fails to act in accordance with natural justice, the person affected by its decision can always seek redress in the courts. It is a prejudice to any man to be denied justice.
20
Fair hearing can very well be claimed in connection with a right, interest or 'legitimate expectation'.
Professor Wade said that a hearing, even when punitive action seemed clearly justified, could "soften the heart of the authority and alter their decision".
It is also well settled that reasons need be given where a person's livelihood, property and also 'legitimate expectations' are at stake. The giving of reasons is one of the fundamentals of good administration. Reasons check the possibility of an arbitrary decision and as observed by Lord Denning, "if the tribunals are to command the confidence of the public they must give reasons."
Another significant aspect of procedural fairness is the right to legal representation. Even after keeping all these in mind and applying the same to the facts and circumstances of the present case, I find it extremely difficult, if not impossible, to appreciate the grievances, as ventilated on behalf of the writ petitioner.
In the case between The Chairman, Board of Mining Examination & Chief Inspector of Mines & Anr. And Ramjee, as reported in AIR 1977 SC 965, it was held:
"Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical 21 but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt - that is the conscience of the matter."
No concrete material could be shown to the satisfaction of the judicial conscience of the Court so as to hold that there had been any defect or lacunae in the decision-making process.
So far the punishment of permanent withdrawal of pension is concerned, it was submitted on behalf of the respondent authority that if there is provision, it would be open to employer to withhold pension permanently or for specific period.
Learned Counsel for the respondent authority in this context referred to the following decisions :
D. V. Kapoor Vs. Union of India & Ors., 1990 (4) SCC 314 and Sisir Kumar Mondal Vs. State of West Bengal & Ors., 2008 (1) CHN 838.
If there is one common enemy in independent India, it is 'corruption' and lack of intellectual integrity. Gunar Myrdal described our country as a 'soft State'. Here, unfortunately honesty is no longer considered as natural as the sweat of the body. It is considered to be a virtue. That is how with the passing of time we have gone from bad to worse. One can very well assume that at least 95% of the Indian population, comprising of ordinary people, the peasants, the workers in the factories, the day labourers and the wretched of the earth are not responsible for this. They are not corrupt; they cannot afford to be, since they do not hold any power or authority. It is a small section of so-called educated and highly placed persons in our society which is responsible for this downward path. We cannot afford to be soft to such corruption. There is nothing called minor 22 corruption or major corruption. Integrity is either absolute or it is not there. When a responsible public servant, be in the Government or Bank or Insurance Company or elsewhere, is engaged in acts of corruption, it certainly does not deserve any compassionate approach. The proportionality of the punishment is to be viewed from this larger perspective.
Having regard to the status of the present petitioner and the nature of charges levelled against him, I do not think that the punishment of 'permanent withdrawal of pension' is shockingly disproportionate. Thus, it calls for no interference.
Accordingly, the present writ petition, being W.P. No. 1708 of 2006 fails and be dismissed. Interim order, if any, stands vacated. There is no order as to costs.
This consequently disposes of G.A. No 2417 of 2008.
Xerox certified copy of the judgment and order be supplied to the parties, if applied for, as expeditiously as possible.
(S.P. Talukdar, J.)