Calcutta High Court (Appellete Side)
Jiban Kumar Sarkar vs Union Of India & Ors on 1 October, 2010
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Md. Abdul Ghani
F.M.A. 1071 of 2009
Jiban Kumar Sarkar
Versus
Union of India & Ors.
For the Appellant : Mr. Kashi Kanto Moitra
Mr. Sk. Muzibar Rahaman
Mr. Sk. Nusior Rahaman
For the Respondents: Ms. Archana Sengupta
Mr. Nisith Mukhopadhyay
Heard On: 23.08.2010 & 15.09.2010
Judgment On: 01.10.2010.
PRANAB KUMAR CHATTOPADHYAY, J.
The appellant herein was initially appointed as Assistant Sub-Inspector (Clerk) in the Central Reserve Police Force and ultimately, was promoted to the post of Office Superintendent. 2
A charge-sheet was issued to the said appellant by the respondent No. 4 on 5th September, 2007. The Article of Charges mentioned in the said charge-sheet are set out hereunder:
" ARTICLE I The said No. 831570278 SM/OS J.K. Sarkar of Group Centre, CRPF, Durgapur (W/B) while functioning as SM/OS has committed serious misconduct in his capacity as a member of the Force, under Section 11(1) of CRPF Act, 1949 in that he was allegedly found involved in recruitment racket in Durgapur (W/B) in which in association with some other CRPF personnel posted in different office for helping out the prospective candidates to get recruited in CRPF by misusing his official capacity. He was also found to be in the process of selling of the contents of question paper meant for written examination of CT(SD) in CRPF which was scheduled to be held on 11/4/07 at Durgapur/Siliguri and Jhargram centres of West Bengal. This act of his is unbecoming of a Government servant and prejudicial to the good order and discipline of the force.
ARTICLE II That said No. 831570278 SM/OS J.K. Sarkar Group Centre, CRPF Durgapur (W/B) while furnishing as SM/OS has committed serious misconduct in his capacity as a member of the force, under Section 11(1) of CRPF Act, 1949 in that immediately after news of leakage of the contents of question paper and postponement of the recruitment of CT(GD) in CRPF at Durgapur/Siliguri AND Jhargram Centres was flashed and an officer was detailed to conduct PE in to the leakage of question paper, he steathily vanished from GC, CRPF, Durgapur and remained on O.S.L. on the plea of ill health to evade his appearance and deposing of statements before the Enquiry Officer, who by then reached G.C. Durgapur to conduct Preliminary Enquiry. Said SM/OS J. K. Sarkar before leaving his duty place/station neither obtained any permission from the competent authority nor informed his controlling officer before leaving the station. This act of his is unbecoming of an Government servant and prejudicial to good other and discipline of the Force."
The Disciplinary Authority also appointed Enquiry Officer for the purpose of conducting the departmental enquiry in respect of the aforesaid charges mentioned in the charge-sheet. The said Enquiry Officer after completion of the enquiry proceeding 3 submitted his report to the Disciplinary Authority for taking further necessary action. The Disciplinary Authority thereafter, forwarded a copy of the report of the Enquiry Officer to the appellant herein and also granted liberty to the said appellant to submit any representation within 15 days from the date of receipt of the said enquiry report. Within a week thereafter, a copy of the disagreement note of the Disciplinary Authority on the aforesaid report of the Enquiry Officer was also forwarded to the appellant herein.
In view of the provisions of Rule 102 of the Central Reserve Police Force Rules, 1955, the Disciplinary Authority, in the present case, had resorted to its power under Rule 15(2) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 and completed the proceedings under the said CCS(CCA) Rules. The said Rule 102 is set out hereunder:
"102. Other conditions of service. - The conditions of service of members of the Force in respect of matters for which no provision is made in these Rules shall be the same as are for the time being applicable to other officers of the Government of India of corresponding status."
Undeniably, though the disciplinary proceeding was initiated under the Central Reserve Police Force Act and Rules, the authorities ultimately, had switched over to the provisions of the CCS(CCA) Rules, 1965. As mentioned hereinabove, Disciplinary 4 Authority in the present case, had resorted to its power under Rule 15(2) of the CCS(CCA) Rules, 1965. The provisions of Rule 15(2) of the CCS(CCA) Rules are set out hereunder:
"15. Action on the inquiry report. -
(1) *** *** *** ** (2) The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary Authority or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the Inquiring Authority together with its own tentative reasons for disagreement, if any, with the findings of Inquiring Authority on any article of charge to the Government Servant who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within 15 days, irrespective of whether the report is favourable or not to the Government Servant."
The appellant herein challenging the actions of the Disciplinary Authority filed the writ petition before this court and the learned Single Judge while entertaining the writ petition refused to grant any interim order.
Being aggrieved by the aforesaid refusal to pass an appropriate interim order by the learned Single Judge, instant appeal has been preferred.
During the pendency of the appeal, Disciplinary Authority passed the order of dismissal in respect of the appellant herein. Challenging the said order of dismissal, another application was filed in connection with the pending appeal by the appellant herein for issuance of appropriate further order. 5
A Division Bench of this Court by the order dated 5th August, 2009 disposed of the aforesaid subsequent application filed on behalf of the appellant herein together with the Stay Application filed in connection with the appeal by issuing directions for hearing of the main appeal. After preparation of the Paper Books, appeal was placed before this Bench for final hearing.
It has been submitted on behalf of the appellant that the biased and capsuled mind of the Disciplinary Authority has been clearly demonstrated in the charge-sheet. Referring to the charge- sheet, Mr. Kashi Kanta Moitra, learned Senior Counsel of the appellant submitted that the aforesaid closed and biased mind of the Disciplinary Authority vitiated the entire disciplinary proceedings from the very inception i.e. from the stay of issuance of the charge-sheet.
Scrutinising the charge-sheet we find that in Article-I, Disciplinary Authority stated in respect of the charged employee, namely, the appellant herein as hereunder:
"He was also found to be in the process of selling of the contents of question paper meant for written examination of CT(SD) in CRPF which was scheduled to be held on 11/4/07 at Durgapur/Siliguri and Jhargram centres of West Bengal. This act of his is unbecoming of a Government servant and prejudicial to the good order and discipline of the force."6
Furthermore, in Article II of the charge-sheet it has been specifically mentioned as hereunder:
"That said No. 831570278 SM/OS J.K. Sarkar Group Centre, CRPF Durgapur (W/B) while furnishing as SM/OS has committed serious misconduct in his capacity as a member of the Force,........................................................................... This act of his is unbecoming of an Government servant and prejudicial to good other and discipline of the Force."
In the case of State of Punjab vs. V.K. Khanna and others reported in AIR 2001 SC 343, Hon'ble Supreme Court observed:
"33. While it is true that justifiability of the charges at the stage of initiating a disciplinary proceeding cannot possibly be delved into by any court pending inquiry but it is equally well settled that in the event there is an element of malice or mala fide, motive involved in the matter of issue of a charge-sheet or the authority concerned is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in that event law courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious, it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law courts ought to rise up to the occasion and the High Court, in the contextual facts, has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings."
From the languages used in the charge-sheet as mentioned hereinabove, we find that the Disciplinary Authority had a closed 7 and biased mind even at the stage of framing the charges. The Learned Senior Counsel of the appellant very strongly urged before us that the charge-sheet should fail since the same was issued with a closed and biased mind against the appellant. We find sufficient merits in the aforesaid arguments advanced on behalf of the appellant.
The learned Senior Counsel of the appellant submitted that the charges levelled against the appellant are vague and not specific and no details were mentioned which has prejudiced the appellant from entering upon his defence at all. Thus, according to the learned Senior Counsel of the appellant, there has been denial of justice and fair play in action.
The principal grounds for challenging the impugned actions of the Disciplinary Authority by the appellant herein are:
1) Disciplinary Authority in the disagreement note instead of expressing tentative opinion communicated its final opinion and thus, prejudged the issue.
2) It is also the stand of the appellant that the Disciplinary Authority while discarding the Enquiry Officer's report relied on the preliminary enquiry report without supplying a copy of the same and furthermore, relied on the evidence of only those witnesses who deposed against the charged employee.
According to the appellant, entire preliminary report was not considered and relied upon by the Disciplinary Authority.
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3) The appellant has also urged that the Disciplinary Authority imposed punishment without relying on the enquiry report submitted by the Enquiry Officer and simply relied on the report of the preliminary enquiry which was conducted behind the back of the appellant and no copy of the same was supplied.
4) Lastly, according to the appellant, the Article II mentioned in the charge-sheet cannot be sustained, as before issuance of the charge-sheet appropriate decision was taken by the competent authority with regard to the absence from duty and, therefore, it has been argued that the appellant cannot be held guilty twice. It has been submitted on behalf of the appellant that the Disciplinary Authority in its disagreement note on the report of the Enquiry Officer did not express tentative opinion. Scrutinising the said disagreement note of the Disciplinary Authority we find that the Disciplinary Authority while recording its disagreement specifically mentioned in the disagreement note under Clause 3 sub-clause (b) and (c) as hereunder:
"(b)................................................... Therefore, I do not find any cogent reasons to agree with the conclusion of the Enquiry Officer as these circumstantial evidences and preponderance of probabilities proves the charge levelled against the charged official in Article I."
(Emphasis Supplied) "(c)................................................... Therefore, based on the circumstantial evidences and preponderance of probabilities, the charge under Article II is fully proved."
9The learned Senior Counsel of the appellant submitted that the Disciplinary Authority has given its conclusive observations and findings in the guise of the disagreement note resulting in grave prejudice to the interests of the appellant apart from violating the enshrined principles of natural justice. Mr. Moitra further submitted that while issuing the show cause notice on the basis of the enquiry report, Disciplinary Authority is required, under the law, to maintain objectivity, impartiality, openness of mind to ensure observance of the principles of natural justice and fairness in administrative action. According to the learned Senior Counsel of the appellant, in the instant case, the Disciplinary Authority did not express its views or reasons tentatively in the disagreement note and thus, violated the principles of natural justice.
There is no dispute that in the disagreement note Disciplinary Authority cannot express conclusive observations and/or findings as the same would prejudice the valuable right of the charged employee to make an effective representation in order to persuade the Disciplinary Authority not to hold the employee concerned guilty and also on the point of imposition of the punishment. In the present case, by expressing conclusive opinion, the entire exercise of issuing show cause notice became idle ceremony and empty formality. The Disciplinary Authority by 10 expressing its final opinion instead of tentative findings in the disagreement note has prejudged the issue in violation of the principles of natural justice.
Mr. Moitra, learned Senior Counsel of the appellant relied on a decision of the Supreme Court in the case of The State of Assam and Anr. Vs. Bimal Kumar Pandit reported in AIR 1963 SC 1612. In the aforesaid decision, a Constitution Bench of the Hon'ble Supreme Court observed:
"6................................................... In issuing the second notice, the dismissing authority naturally has to come to a tentative or provisional conclusion about the guilt of the public officer as well as about the punishment which would meet the requirement of justice in his case, and it is only after reaching conclusions in both these matters provisionally that the dismissing authority issues the second notice................................................"
Though in this case the disagreement note was not a second show cause notice, the principle settled in the aforesaid decision with regard to the necessity of keeping the Disciplinary Authority's mind open till the imposition of the punishment cannot be avoided. The disagreement note of the Disciplinary Authority clearly reflects the formation of opinion with regard to the guilt of the appellant herein which cannot be approved by any court of law.
11The Supreme Court has also reiterated the aforesaid principle in a recent decision in the case of Union of India and others vs. Bishamber Das Dogra reported in (2009) 13 SCC 102. In Paragraph 23 of the aforesaid decision, Supreme Court observed:
"23. The Court in Bimal Kumar Pandit case observed that while issuing second show-cause notice, the disciplinary authority naturally has to come to a tentative or provisional conclusion about the guilt of the charged employee as well as about the punishment which would meet the requirement of justice in his case, and it is only after reaching conclusions in both these matters provisionally that the disciplinary authority issues the second notice. The delinquent employee is entitled to show cause not only against the action proposed to be taken against him but also against the validity or correctness of the findings recorded by the enquiry officer and provisionally accepted by the disciplinary authority. Thus, it enables the delinquent to cover the whole ground and to plead that no case had been made out against him for taking any disciplinary action................................................"
Mr. Moitra, learned Senior Counsel of the appellant submitted that the Disciplinary Authority while imposing punishment on the appellant herein relied on the preliminary enquiry report and the depositions of the witnesses recorded behind the back of the said appellant during the said preliminary enquiry. According to the learned Senior Counsel of the appellant, non-supply of the preliminary enquiry report and the use of the depositions of the witnesses who featured in the said ex-parte enquiry behind the 12 back of the appellant clearly violated the principles of natural justice and has thus, prejudged the said appellant seriously. Mr. Moitra referred to and relied on the decision of the Supreme Court in the case of Govt. of A.P. and others vs. A. Venkata Raidu reported in (2007) 1 SCC 338. In the aforesaid decision, Hon'ble Supreme Court observed:
"9. We respectfully agree with the view taken by the High Court. It is a settled principle of natural justice that if any material is sought to be used in an enquiry, then copies of that material should be supplied to the party against whom such enquiry is held. In Charge 1, what is mentioned is that the respondent violated the orders issued by the Government. However, no details of these orders have been mentioned in Charge 1. It is well settled that a charge-sheet should not be vague but should be specific. The authority should have mentioned the date of the GO which is said to have been violated by the respondent, the number of that GO, etc. but that was not done. Copies of the said GOs or directions of the Government were not even placed before the enquiry officer. Hence, Charge 1 was not specific and hence no finding of guilt can be fixed on the basis of that charge. Moreover, as the High Court has found, the respondent only renewed the deposit already made by his predecessors. Hence, we are of the opinion that the respondent cannot be found guilty for the offence charged."
While discarding the Enquiry Officer's report, Disciplinary Authority relied on the preliminary enquiry report without supplying a copy of the same to the appellant. Furthermore, the said Disciplinary Authority also relied on the evidence of some of the witnesses who deposed admittedly, against the charged employee namely, the appellant herein. The evidence of the witnesses who deposed in favour of the appellant was, however, not taken into 13 consideration by the Disciplinary Authority. The Disciplinary Authority should not have relied on the preliminary enquiry report since copy of the same was not supplied to the appellant herein.
It is the basic requirement of the principles of natural justice that a fair and reasonable opportunity should be granted to the charged employee while conducting the enquiry proceedings.
In the present case, the Disciplinary Authority violated the aforesaid basic requirement regarding observance of the principles of natural justice by relying on the preliminary enquiry report without supplying any copy of the same to the appellant herein and also placing reliance on the evidence of only those witnesses who deposed against the appellant and not considering the other witnesses who deposed in favour of the said appellant.
In the order of dismissal also, the said preliminary enquiry report was relied upon by the Disciplinary Authority. The enquiry report was virtually rendered nonest and the Disciplinary Authority relying on the preliminary enquiry report held the appellant guilty. The Disciplinary Authority imposed the punishment virtually without relying on the enquiry report, but placing unusual reliance on the preliminary enquiry report, without appreciating the fact that no copy of the said preliminary 14 report was ever supplied to the charged employee namely, the appellant herein.
It was however, very difficult on the part of the learned Counsel of the respondents to effectively oppose the aforesaid contentions raised on behalf of the appellant herein.
From a bare scrutiny of the charges framed against the charged employee namely, the appellant herein and analyzing the disagreement note as well as the order of dismissal issued to the said appellant we find that the Disciplinary Authority showed biased attitude and closed mind in respect of the appellant from the very inception and failed to observe the principles of natural justice and procedural justice in conducting the disciplinary proceedings.
The learned Counsel of the respondents, however, submitted that the principles of natural justice were duly observed in the facts of the present case by granting opportunity to the appellant to file a representation in respect of the disagreement note.
We, however, do not accept the aforesaid claim of the respondent authorities since the Disciplinary Authority, while granting the opportunity to the appellant to file a 15 representation, did not express its tentative opinion with regard to the findings of the enquiry report. The Disciplinary Authority prejudged the issue by arriving at the final conclusion with regard to the findings of the Enquiry Officer, before granting the opportunity to the charged employee, namely the appellant herein, to file a representation and as a matter of fact, the Disciplinary Authority held the appellant guilty even before allowing the said appellant to submit a representation which is highly illegal and violative of the principles of natural justice and procedural justice.
It is most unfortunate that the Disciplinary Authority relied on the preliminary enquiry report without supplying any copy of the same to the charged employee. It is a glaring example of the closed and biased mind of the Disciplinary Authority. Article II of the Articles of charges could not have been included in the charge-sheet since the appellant had earlier been proceeded against in respect of the alleged charge and upon adjudication by the competent authority punishment was imposed. Subsequent framing of charge against the appellant on the identical ground cannot be sustained.
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From the records we find that the Additional D.I.G.P. (CCD) by the written communication dated May, 2007 considered the allegation regarding absence from duty of the appellant and subsequently, by the office note dated 15th May, 2007 regularised the said absence period.
In the aforesaid circumstances, on the ground of absence in respect of the identical period no charge could be framed subsequently although the Disciplinary Authority, most unfortunately, in the instant case framed the charge again on the identical ground against the appellant as mentioned in Article II of the charge-sheet and held the said appellant guilty once again in relation to the aforesaid charge regarding absence from duty.
In the present case, the Disciplinary Authority proceeded against the appellant with a closed and biased mind from the stage of issuance of the charge-sheet and held the appellant guilty in flagrant violation of the principles of natural justice and procedural justice. We are satisfied that the Disciplinary Authority had no respect for the enshrined principles of natural justice and procedural justice.
The learned Counsel representing the respondents submitted that the appellant herein did not prefer any statutory appeal 17 before the appellate authority and, therefore, at this stage this Court should not decide the issue finally.
We are, however, not very much impressed by the aforesaid submissions as the Disciplinary Authority from the very inception violated the principles of natural justice and procedural justice as we have elaborately discussed hereinabove. The proceeding was initiated by the appellant before this court even before issuance of the impugned order of dismissal. In the aforesaid circumstances, if this Court asked the appellant to go before the appellate authority without appreciating the serious irregularities and/or illegalities committed by the Disciplinary Authority from the stage of initiation of the disciplinary proceedings, then justice would have been denied to the employee concerned. When the appellant has applied before this court alleging violation of the principles of natural justice, alternative remedy cannot be an absolute bar in entertaining the matter.
In the case of M/s. Baburam Prakash Chandra Maheshwari vs. Antarim Zila Parishad reported in AIR 1969 SC 556, Hon'ble Supreme Court held:
18
"3. There are at least two well recognised excpetions to the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well settled that where proceedings are taken before a Tribunal under a provision of law, which is ultra vires it is open to a party aggrieved thereby to move the High Court under Article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course...................................................In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principles of natural justice." (Emphasis Supplied) The Supreme Court in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & Ors. reported in (1998) 8 SCC 1 held:
"15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged..............................................................."19
In the case of State of Tripura vs. Manoranjan Chakraborty and Ors. reported in (2001) 10 SCC 740, Hon'ble Supreme Court held:
"4................................................It is, of course, clear that if gross injustice is done and it can be shown that for good reason the court should interfere, then notwithstanding the alternative remedy which may be available by way of an appeal under Section 20 or revision under Section 21, a writ court can in an appropriate case exercise its jurisdiction to do substantive justice.........................................."
Following the aforesaid decisions of the Hon'ble Supreme Court and considering the facts of the present case as well as the conduct of the Disciplinary Authority we are of the opinion that alternative remedy cannot be an absolute bar to these proceedings. Furthermore, considering the facts of the present case, we are also of the opinion that the High Court is not powerless to grant adequate relief to the appellant despite the existence of an alternative remedy specially when such alternative remedy before the appellate authority is not equally adequate and efficacious. For the aforementioned reasons, the charge-sheet, disagreement note and order of punishment issued by the Disciplinary Authority cannot be sustained in the eye of law, the same being vitiated due to the closed and biased mind of the Disciplinary Authority. The said charge-sheet, disagreement note, order of punishment and as a matter of fact, the entire 20 disciplinary proceedings conducted against the appellant herein are liable to be quashed due to the closed and biased mind of the Disciplinary Authority and on account of non-observance of the principles of natural justice and procedural justice.
In the aforesaid circumstances, we quash the charge-sheet and the order of punishment as well as the entire disciplinary proceedings initiated on the basis of the aforesaid charge-sheet and culminating in the order of punishment.
The respondent authorities herein are directed to reinstate the appellant in service forthwith and release the entire consequential admissible service benefits without any further delay but positively within a period of four weeks from the date of communication of this order.
With the aforesaid observations and directions, this appeal stands allowed.
Needless to mention that in view of quashing of the charge- sheet as well as the entire disciplinary proceedings initiated against the appellant, nothing further is to be decided in the writ petition filed by the appellant herein and, therefore, there is no scope to proceed further with the said writ petition. 21 In the facts and circumstances of the present case, there will be, however, no order as to costs.
Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.
[PRANAB KUMAR CHATTOPADHYAY, J.] MD. ABDUL GHANI, J.
I agree.
[MD. ABDUL GHANI, J.]