Gauhati High Court
Narayan Chandra Dey vs State Of Tripura And Ors. on 8 August, 2005
Equivalent citations: (2007)1GLR303
Author: T. Vaiphei
Bench: T. Vaiphei
JUDGMENT T. Vaiphei, J.
1. The validity of the order dated 14.6.1995 imposing upon the petitioner the penalty of reduction of his pay to the lowest of the time scale for a period of two years and the departmental enquiry proceedings in connection therewith is called into question in this writ petition.
2. The petitioner is serving as Forester in the Department of Forests. Government of Tripura, and was at the material time functioning as Attached Officer to the Beat Officer, Ramsankar Para Beat in the Teliamura Division. In the year 1992, a departmental enquiry was initiated against the petitioner on the following articles of charges:
Article No. I That the said Narayan Chandra Dey, Forester while posted/ functioning as Attached Officer to the Beat Officer, Ramsankar Para Beat acted as quite irresponsibly and unbecomingly by submitting false seizure report and by allowing unauthorized person to use the seizure hammer which was issued to him by the Government for his exclusive use for the purpose of seizure as per the provision of the Indian Forest Act, 1927. Such behaviour of Sri Dey, Forester tantamount to criminal negligence on his part in the discharge of Government duties.
Article No. II That the said Shri Narayan Chandra Dey, Forester, while functioning as Attached Officer to the Beat Officer, Ramsankar Para Beat acted quite unbecomingly by lodging a complaint in the name of Sri Nibaran Debbarama and 17 others against Beat Officer Ramsankar Para Beat. The intention of Sri Dey, Forester was to defame his immediate senior officer, presumably for his personal gain.
3. By the memorandum dated 3.2.1992, the petitioner was required to submit his written statement of defence, which was duly submitted by him wherein he denied any act of misconduct committed by him and prayed for exoneration from the charges. The prayer for dropping the charges was not accepted and the departmental enquiry was directed to be proceeded against him. The respondents appointed an Enquiry Officer, Presenting Officer and, on the request of the petitioner, a defence assistant whereafter the enquiry got commenced. In the course of enquiry, the Department examined as many as four witnesses to bring home the charges against the petitioner. The Department also exhibited eight documents, i.e., P-1 to P-8 to substantiate its case. The petitioner cited one defence witness but he was examined as P.W. No. 1. On the conclusion of the enquiry, the Enquiry Officer held that the charges made against the petitioner were established and accordingly submitted his report to the disciplinary authority (the respondent No. 3). The respondent No. 3 agreed with the findings recorded by the Enquiry Officer and proposed to impose a penalty of reducing the pay of the petitioner to the lowest of his time scale of pay for a period of two years without earning any increment of pay during such period and without affecting his future increment after the expiry of such period. Therefore, the petitioner was called upon to submit his representation against the proposed penalty within fifteen days of the receipt of the notice. The petitioner promptly submitted his representation, which is at Annexure 8. After considering the said representation, the respondent No. 3 imposed the penalty as proposed earlier. The petitioner thereafter preferred an appeal before the appellate authority (the respodent No. 2), who, however, dismissed the appeal by the order dated 24. 0.1995. Hence, this writ petition came to be filed.
4. Mr. D. K. Bhattacharjee, the learned Counsel for the petitioner submits that the Enquiry Officer relied upon Ext. P-8, which is the statement of one Nibaran Debbarma, without examining him during enquiry, as the basis for his findings against the petitioner; such course of procedure adopted by the Enquiry Officer violates the principles of natural justice and amounts to admitting inadmissible evidence thereby rendering the entire departmental proceedings vitiated. He contends that the Enquiry Officer also committed material irregularity in admitting into evidence Ext. P-l, i.e., the complaint against the Beat Officer allegedly authored at the behest of the petitioner, without examining the scribe or its signatories during enquiry. It is further submitted by the learned Counsel that the Enquiry Officer, in refusing the prayer of the petitioner for production of his personal dairy and that of the Beat Officer and also the inspection report of the Chief Conservator of Forest, Western Circle, has denied the petitioner of reasonable opportunity of hearing. The learned Counsel also contends that even assuming without admitting that the charges levelled against the petitioner are true, such acts of omission or commission cannot constitute misconduct. It is next contended by the learned Counsel for the petitioner that the punishment order is illegal being in contravention of F.R. 29(1) and (2), It is also submitted by the learned Counsel that the penalty imposed upon the petitioner is highly excessive and grossly disproportionate to the misconduct established against him. Lastly, the learned Counsel argues that there is non-application of mind by both the disciplinary authority and the appellate authority in accepting the enquiry report. For all the infirmities in the impugned order and the departmental enquiry in connection therewith highlighted above, submits the learned Counsel for the petitioner, the impugned orders of the disciplinary authority and the appellate authority are not sustainable in law and are, therefore, liable to be quashed.
5. It is, however, contended by Mr. S. Chakraborty, the learned Government advocate, that the departmental enquiry proceedings and the order of punishment emanating therefrom do not suffer from any infirmity calling for the interference of this court. Drawing my attention to Ext. P-7, he submits that the petitioner categorically admitted his guilt to the charges levelled against him and that once the petitioner has clearly admitted his guilt, no prejudice can be, or could have been, caused to him by the (i) non-examination of the scribe or the signatories of Ext. P-l and Ext. P-8 and (ii) rejection of the prayer of the petitioner for production of his personal dairy and that of the Beat Officer. In other words, the contention of the learned Government advocate is that the admission made by the petitioner in Ext. P-7 constitutes adequate material for holding that he is guilty of the charges levelled against him. According to the learned Government Advocate, the instant case is not one in which the findings of the disciplinary authority is based on no evidence, or is perverse. Mr. S. Chakraborty also submits that the penalty imposed upon the petitioner is not excessive or grossly disproportionate to the misconduct proved against him, He also denies that there is non-application of mind by the disciplinary authority and the appellate authority or that the provisions of F.R. 29(1) and (2) have been not complied with. He, therefore, submits that the writ petition is absolutely devoid of merits and is liable to be dismissed.
6. On the pleadings of both the parties and upon considering the rival submission of the parties, the crucial points for consideration in this case is whether there is admission of guilt by the petitioner in Ext. P-7 to the charges levelled against him and, if so, whether the contents of Ext. P-7 can be relied upon by the disciplinary authorities to bring home the charges levelled against him ? Since Ext. P-7 is a document of vital importance and the determination of the guilt of the petitioner hinges on this document, the same is reproduced hereunder:
Statement of Sh. Narayan Ch. Dey, Forester, Ram Sankar Para Beat Office.
My name is Sh. Narayan Ch. Dey. I have joined in Ram Sankar Beat Office on ...11.1990 as Attached Officer. On 27.11.1990 when I returned to Panchahali bazaar from Agartala at about 13.30 hrs, I was told by Sh Bhajan Das and Sh. Nibaran Debbarma that major illicit felling took place in the older teak plantation under R.S. Para Beat. Both Sh. Das and Debbarma are Forest Sub-contractors. Being learnt about the illicit felling I immediately went to the site accompanied by Sh. Das & Sh. Debbarma. We visited the older teak plantations within champamura R.F. adjacent to the R.S Para Beat Office. In one spot, I found that 13 (thirteen) teak trees were illicitly felled. I put my seizure hammer impression over the 13 stumps as well as on the cut surface of the felled trees and noted down the measurements of the stumps and timberable portion of the felled trees. Thereafter, I handed over my seizure hammer to Sh. Nibaran Debbarma and asked them to arrange seizure of the balance stumps, etc. After issuance of the above instruction to them I came to Beat Office. At about 6.30 PM both of them came to R.S. Para Beat Office and reported that they had put seizure hammer impression over additional 68 stumps as well as on the cut surface of the felled trees. At about 8.00 PM we came to Panchahali and from there I went to Agartala. I did not obtain any permission from the B.O. though I knew that the B.O. was present at Panchubati. After reaching Agartala I met one Sh. Nibaran Das at Gorkhabasti and informed him that I wanted to submit a report to the C.F.W.C. regarding illicit felling detected by me and requested him to write a report which he wrote as per my version and I put my signature on it on the night of 27.11.1990. In the said report I also enclosed a seizure list showing measurement of 81 stumps and timberable portion of the felled trees. As I was to return to H.Q. on 28.11.1990, I gave the report to Sh. Nibaran Das with request to submit the same in the O/O the C.F.W.C. On 29.11.1990 the CFWC, the DFO Working Plan Div. No. II, the P.O. Subal Singh Range of O/c S.F.P.P. Subalsingh came to Panchubati and I was asked by the CFWC to accompany them to the spot where I detected the illicit felling on 27.11.1990. I took them to the site of illicit felling and after thorough search in the area I could only show them 21 stumps bearing my seizure hammer impression. The others I could not show to them. When CFWC & DFO working Plan Div. No. II asked me to show the rest 60 stumps reportedly seized by me, I confessed that except 13 stumps the rest were done by Sh. Bhajan Das & Sh. Niharan Debbrama to whom I had given my seizure hammer for the said purpose and I did not know what exactly they had done with my seizure hammer.
On being questioned if I knew anything about the complaint lodged to CFWC by Sh Nibaran Debbarma and 17 others about large scale felling of trees in R.S Para Beat area and reported connivance of Beat Officer and on examination of the original complaint shown to me, I confessed that I have got the complaint lodged with CFWC in the name of Sh. Nibaran Debbarma and others. The complaint was written by Sh. Nibaran Das of Gorkhahasti as per my version. The signatories are superficial.
7. A cursory look at the above statement evidently shows that the petitioner admitted that in the seizure report made by him, he seized 81 stumps of timberable portion on 27.11.1990 but when spot verification was made on 29.11.1990 by the Chief Conservator of Forest, the D.F.O., Working Plan, Div. No. II and others in his presence, he could only show them more than 21 stumps bearing his seizure hammer impressions. He further admitted therein that he handed over his seizure hammer to one Nibaran Debbarma by asking him to arrange seizure of the balance stumps, etc., and that he had got the complaint lodged with CFWC in the name of Sh. Nibaran Debbarma and others, the complaint was written by Sh. Nibaran Das of Gorkhabasti as per his version, the signatories were superficial. It is, thus, beyond any shadow of doubt that the charges in Articles II and I made against the petitioner have been admitted by the petitioner. Coming now to the legality of reliance placed by the respondents on this statement at Ext. P-7, it may be observed at the very outset that the said statement was duly recorded by the D.F.O. and signed by the petitioner. It is interesting to note that the petitioner nowhere in his defence including the writ petition, his reply to his written statement of defence, written argument or in his memo of appeal has ever denied or disputed the contents of Ext. P-7 or its authorship by him. What then is his grievance ? For the first time, in his written argument, he dwelt upon this document, that too, by merely stating that he had raised objection at the time when the same was produced by P.W.2, which was marked under objection. This point was raised by him subsequently ad nauseam. On what ground such objection was raised by him is not known. This document was one of the documents mentioned in the charge sheet being relied upon by the Department in the enquiry. Secondly, the document was admittedly produced and exhibited in the examination-in-chief of P.W.2. Though the petitioner was present in that proceeding, and was given an opportunity to cross-examine the witness, he neither crossed the said witness in this respect nor impeached the genuineness or otherwise thereof. In the absence of challenge to the execution or genuineness of such a document, there is no infirmity in placing reliance upon the same by the disciplinary authority for establishing the charges levelled against the petitioner. In fact, this piece of document is independently sufficient for the respondents to come to the conclusion that the petitioner is guilty of the misconduct charged against him.
8. That apart, P.W. 1, who was at the relevant time the Conservator of Forest, Western Circle (CFWC), slated in his deposition that he along with the D.F.O., Working Plan, Division No. 2, including Shri Subalshing, Range Officer, had visited Ram Sankar Para Beat area to ascertain the genuineness of the complaint lodged by the said Nibaran Debbarma and 17 others against the Beat Officer regarding his involvement in illicit felling of trees and transportation of the cut trees. According to him, when the petitioner was asked to show the stumps seized by him, he could show only few stumps which were impressed by his seizure hammer which was handed over to two unauthorized persons, as subsequently recorded in writing. The statements of P.W. 2, who was then the Forest Ranger, ADC, and P.W. 2, who was the D.F.O., who accompanied the CFWC, fully corroborated the statement of P.W. 3. The D.F.O.(P.W. 2) was the officer, who recorded the statement of the petitioner (Ext. P-7). Though the petitioner was present at the time of examination of these witnesses, he could not in his cross-examination demolish the correctness of those statements. On the contrary, the aforesaid statements remove any doubt on the genuineness of Ext. P-7. In a departmental enquiry, strict rules of Evidence Act are not applicable. If there is, some evidence, which reasonably supports the conclusion of the disciplinary authority, this court cannot interfere with such a finding. In this context, we may with advantage quote the observations of the Apex Court in State of Haryana v. Ratan Singh followed in Divisional Controller, KSRTC v. A.T. Mane :
In a domestic enquiry all the strict and sophisticated rules of the Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible, though departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Evidence Act. The essence of judicial approach is objectivity, exclusion of extraneous materials or considerations, and observance of rules of natural justice. Fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment, vitiate the conclusion reached, such a finding, even of a domestic tribunal, cannot be held to be good. The simple point in all these cases is, was there some evidence or was there no evidence - not in the sense of the technical rules governing court proceedings but in a fair common-sense way as men of understanding and worldly wisdom will accept. Sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny by court, while absence of any evidence in support of the finding is an error of law apparent on the record and the court can interfere with the finding.
In the present case, the evidence of the inspector is some evidence which has relevance to the charge and the courts below had misdirected themselves in insisting on the evidence of the ticketless passengers. Also, merely because their statements were not recorded, the order for termination cannot be invalid. In fact, the inspector tried to get their statements but the passengers declined. Further, it was not for the court but for the Tribunal to assess the evidence of the co-conductor.
9. In ADM (City) Agra v. Prabhakar Chaturvedi , where in a departmental enquiry, the delinquent voluntarily admitted in writing that due to carelessness and fault, he could not deposit in the Post Office Account of the employees the amount received by him for this purpose from the employer's office, the Apex Court held that on account of the delinquent's written admission, the charge against h m stood already proved. It is a fairly settled position in law that a mission is the best price of, evidence against the person, making the admission, though it will always be open to the person making the ad ission to show why the admission is not to be acted upon (See Delhi Transport Corporation v. Shyamlal (2004) 8 SCC 58). Once it is demonstrat d by Ext. P-7 that the petitioner admitted in writing that the allega ions made against him in the Articles of Charges and when he could not show as to why such admission should not be acted upon, the non-examination of the scribe and signatories of the complaint at Ext. P-l and Ext. P-8 and of the rejection by the Enquiry Officer of the prayer of the petitioner for production of his personal dairy and that of the Beat Officer, cannot possibly affect the outcome of the departmental enquiry against him nor will they cause prejudice to him. In the instant case, the petitioner was charged with and was found to be guilty of misconduct for causing third parties to lodge a complaint against his superior officer, for submitting false seizure report and for handing over his official seizure hammer to unauthorized persons. On going through his pleadings and his written statement of defence, it becomes apparent that he never questioned the truth of those allegations. His only grievance appears to be on non-examination of the scribe or signatories of Ext. P-l and P-8 and non-production of his personal dairy and that of the Beat Officer. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rights to be performed on all and sundry occasions. Whether, in fact, prejudice has been caused to the employee or not on account of the denial to him of the right to adduce evidence or call for production of evidence has to be considered on the facts and circumstances of each case. Under the circumstances, the inevitable conclusion to be drawn is that no prejudice has been caused to the petitioner in the course of the departmental proceedings against him.
10. It is next contended by Mr. D. K, Bhattacharjee, the learned Counsel for the petitioner, that even assuming without admitting that the allegations made against the petitioner are true, such act of omission or commission cannot constitute misconduct. The term "misconduct" is a relative term. Misconduct literally means wrong or improper conduct, i.e., conduct in violation of a definite rule of action. It ordinarily means failure to do what is required of a person to be done. An omission to do what is required of a person to do may, therefore, constitute misconduct even though the person has not acted wilfully or maliciously - See Shaik Mohammad v. G.G. in Council AIR 1954 Nag. 337. The Apex Court in State of Punjab v. Ex-Constable Ram Singh gave the definition of "misconduct":
The word 'misconduct' though not capable or precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour, wilful in character ; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty ; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve.
From the foregoing definition, one thing is obvious : "misconduct" is not synonymous with mere negligence, and it is the intentional doing of something which the doer knows to be wrong or which he does recklessly not caring what the result might be.
11. In the instant case, the petitioner was found to have handed over the seizure hammer issued to him for discharging his official duty to some private individuals. Secondly, the record shows that he knew that such act was unauthorized by law. He also made a false seizure re ort; his report that he seized 81 stumps was subsequently, on spot ver fication by his superior officers, detected to be false in that he co Id only account for 21 stumps bearing his seizure hammer. Thirdly, he ad ittedly caused 17 villagers to lodge a complaint against his superior officer, which was also found to be false. There can be no dispute that unauthorized act of handing over official property to private individual amounts to commission of a forbidden act or transgression of established and definite rule of action or code of conduct. So is the case of making false seizure report. This will also amount to improper or wrong behaviour or will involve moral turpitude. Instigating third parties to lodge a false complaint against his superior officer cannot possibly be mere error of judgment or careless or negligence in the performance of his official duty but will certainly involve moral turpitude, improper conduct and also transgression of established code of conduct. In that view of the matter, in my considered view, the submission of the learned Counsel for the petitioner that the charges levelled against the petitioner do not amount to misconduct is misconceived, and is, accordingly, rejected.
12. It is lastly contended by the learned Counsel for the petitioner that the punishment imposed upon the petitioner is highly excessive and grossly disproportionate to the misconduct proved against him. It must be remembered and reiterated that the power to inflict punishment upon an employee has been conferred by law on the employer and not to the High Court. Once the charge against the delinquent is established, the quantum of punishment is for the employer to decide and the court ordinarily would not interfere with the order on the quantum of punishment unless the court comes to the conclusion that the penalty imposed is grossly excessive or shockingly disproportionate to the misconduct proved against the employee. Apart from repeating that the punishment awarded to the petitioner is grossly disproportionate, no materials or mitigating factors could be pointed out by the learned Counsel to warrant the interference of this court or to consider lesser punishment. The misconduct found against the petitioner are serious and appalling and rightly calls for adequate punishment as is done here and the same does not justify the interference of this court.
13. The learned Counsel for the petitioner has placed reliance on the following decisions : (a) B.C. Chaturvedi v. Union of India ; (b) Ranjit Thakur v. Union of India ; (c) R.P. Bhatta v. Union of India ; (d) Bharat Ram v. State of A.R. AIR 1983 SC State of A.P. (1996) 1 GLR 308 ; (g) Shri Jai Dass v. Union of India (1989) 2 GLR 50 ; and numerous other decisions in support of his various contentions. On going through those decisions. I am of the considered opinion that when there are already recent decisions of the Apex Court having a direct bearing on the instant case as noted elsewhere in this judgment, and when those cited at bar do not directly dealt with the points discussed, herein above, the need for discussion on those cited cases stands obviated. Finally, on the question of non-compliance with the provisions of F.R. 29(1) and (2), the contention of the learned Counsel for the petitioners is to be noted only to be summarily rejected for the simple reason that no such infirmity is found in the impugned order. Similarly, for the reasons stated earlier, both the submissions of the learned Counsel for the petitioner that there is non-application of mind by the disciplinary authority and the appellate authority, is untenable and ill-conceived. Therefore, I hold that the orders of the disciplinary authority and the appellate authority do not suffer from any infirmity and are sustainable in law.
14. In view of what has been stated in the foregoing, there is no merit in this writ petition. Resultantly, the writ petition is dismissed by directing the parties to bear their own costs.