Calcutta High Court (Appellete Side)
The State Of West Bengal & Ors vs Siddhartha Sankar Mukhopadhyay on 19 December, 2017
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debasish Kar Gupta
And
The Hon'ble Justice Shekhar B. Saraf
W.P.S.T. No. 114 of 2017
The State of West Bengal & Ors.
Versus
Siddhartha Sankar Mukhopadhyay
With
W.P.S.T. No. 123 of 2017
Siddhartha Sankar Mukhopadhyay
Versus
The State of West Bengal & Ors.
For the petitioners in : Mr. Amitesh Banerjee,
W.P.S.T. No.114/2017 Ld. Sr. Standing Counsel,
Mrs. Munmun Tewary
For the respondent in : Mr. Dibyendra Narayan Ray,
W.P.S.T. No.114/2017 & for Mr. Manujendra Narayan Ray,
the petitioner in W.P.S.T. No.123/2017 Mr. Arindam Mitra,
Mr. Rajesh Kumar Shah
For the State in W.P.S.T. No.123/2017 : Mr. Tapan Kumar Mukherjee,
Ld. A.G.P.,
Mr. Somnath Naskar
Heard on : 16/11/2017 & 29/11/2017
Judgment on: 19/12/2017
Debasish Kar Gupta , J. :
Both the aforesaid writ applications are filed challenging a judgment dated December 16, 2016 passed by the West Bengal Administrative Tribunal in original application bearing O.A. No.758 of 2014. The former one bearing W.P.S.T. No.114 of 2017 (hereinafter referred to as the first W.P.S.T.- I) is filed by the respondents/writ petitioners and the latter one bearing W.P.S.T. No.123 of 2017 (hereinafter referred to as the second W.P.S.T.-II) is filed by the applicant/writ petitioner on the grounds as will be discussed hereunder. The operative portion of the impugned judgment is quoted below:-
"16. In view of the above, having regard to the facts of the case, we find some merit in the present application before us. The application, therefore, partly succeeds. Accordingly, for the reasons discussed above, we are of the view that only Charge I has been partly established against the applicant inasmuch as on 09-01-2008 he gained unauthorised access to the office computer and tinkered with the same causing deletion of the name of a recorded bargadar, albeit without any mala fide intent. In our opinion, the punishment of withholding of 3 (three) annual increments with cumulative effect imposed by the Disciplinary Authority, by his order dated 5th May, 2014, would be too harsh and shockingly disproportionate to the misconduct of the applicant and a lesser punishment is called for in this case to meet the ends of justice. Accordingly, we modify the impugned final order passed by the Disciplinary Authority to the extent that the punishment imposed on the applicant be modified to the penalty of censure only. We also direct the respondent authorities, particularly Respondent no.2 i.e. Land Reforms Commissioner and Additional Chief Secretary, Govt. of West Bengal, that all consequential benefits admissible to applicant under the rules shall have to be paid to him within a period of twelve weeks from the date of communication of this order."
The fact of the case in a nutshell is this:-
The petitioner was served with a charge sheet dated February 10, 2009 while he was working for gain in the post of Special Revenue Officer, Grade-II and was posted in Block Land and Land Reforms Officer, Keshiary, Purba Medinipur levelling the following charges against him:-
(i) The petitioner, while posted as Revenue Officer, at the Office of Block Land and Land Reforms Officer, Sabong, District- Paschim Medinipur on January 9, 2008, tampered with the informations loaded in the computer of a Lower Division Clerk taking advantage of his absence and deleted the name of one Shri Rajendra Nath Jana, son of Bhusan Jana of village Mohar, a recorded bargadar, L.R. Khatian No.1630 in respect of Plot nos.1481 & 1483, Mouza Mohar, J.L. No.397, Police Station-Sabong, with mala fide intention.
(ii) On 09.01.2008 while functioning as Revenue Officer at the Block Land & Land Reforms Officer, Sabong Shri Shankar Mukhopadhyaya, petitioner in W.P.S.T.-II, unauthorisedly entered into the office computer and generated a print-out of L.R. Khatian no.1630 of mouza Mohar, J.L. No.397, P.S. Sabong after deleting the name of a bargadar therefrom.
(iii) The petitioner disposed of a proceeding bearing no. O.B.C. Case No.23/2006 which had been initiated out of a claim raised by one Shri Rajendra Nath Jana, son of Bhusan Jana of village Mohar for recording his name as bargadar against Plot nos.1481 & 1483 comprised in L.R. Khatian No.1630, Mouza Mohar, J.L. No.397. Though the above proceeding was closed, the petitioner did not hand over the case records to the office to deprive the above bargadar of his rights by tampering with the computer data base and deleting the name of the above bargadar with mala fide intention.
The above act on the part of the petitioner was gross misconduct for ill motive, inconsistent of faithful discharge of his duty and adverse to the integrity in his performance.
The above conducts of the petitioner were unbecoming of a Government servant and were clear violation of provisions of Rule 3 (1), 3 (2) of the West Bengal Service (Duties, Rights and Obligations of the Government Employees) Rules, 1980.
An inquiry proceeding was initiated against him and the inquiry officer submitted his report dated October 29, 2010 to the Disciplinary Authority with the finding that the petitioner was guilty of commission of offence partially in respect of Charge no.I. The charge framed against the petitioner in Article of Charge no.II had not been established and he was found guilty of charges framed against him in Article of Charge no.III.
After considering the aforesaid materials including the reply of the petitioner to the above inquiry report the final order dated May 5, 2014 was passed by the Disciplinary Authority against the petitioner inflicting the penalty of "withhold of Three (3) increments with cumulative effect" in terms of Rule 8 (ii) of West Bengal Services (Classification, Control & Appeal) Rules, 1971.
It is submitted by Mr. Amitesh Banerjee, learned Senior Standing Counsel, West Bengal, appearing on behalf of the petitioners in the first W.P.S.T.-I that the Charge no.III was based on evidence as appeared from the report of the inquiry officer. According to him, adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. When the authority accepted the evidence and the conclusion received support therefrom the Disciplinary Authority was entitled to hold that the delinquent officer was guilty of the above charge. The next limb of submission of Mr. Banerjee is that the learned Tribunal was wholly unjustified in interfering with the order of punishment passed by the Disciplinary Authority. According to him, 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 once the Court/Tribunal comes to a conclusion that there has been no infirmity with the procedure.
Reliance is place by Mr. Banerjee on the decisions of B.C. Chaturvedi vs. Union of India & Ors., reported in (1995) 6 SCC 749, Union of India & Ors. vs. P. Chandra Mouli & Ors., reported in (2003) 10 SCC 196, State of Meghalaya vs. Meeken Singh N. Marak, reported in (2008) 7 SCC 580, Lucknow K. Gramin vs. Rajendra Singh, reported in (2013) 12 SCC 372 in support of his above submissions.
While vividly opposing the above submissions Mr. Dibyendra Narayan Ray, learned Advocate appearing on behalf of the petitioner in the second W.P.S.T.-II, submitted that according to the report of the inquiry officer the charge of commission of offence with mala fide intention was not proved. However, the commission of offence was proved. In such circumstances according to Mr. Ray, the delinquent employee should not be treated as guilty of commission of offence. The next limb of submission of Mr. Ray is that the learned Tribunal was empowered to interfere with the quantum of punishment imposed by the Disciplinary Authority in an appropriate case in the facts and circumstances of the case as also reduce the quantum of punishment.
Reliance is placed by Mr. Ray on the decisions of State of Punjab & Ors. vs. Ram Singh Ex-Constable, reported in (1992) 4 SCC 54, Roop Singh Negi vs. Punjab National Bank & Ors., reported in (2009) 2 SCC 570 and Delhi Police, Through Commissioner of Police & Ors. vs. Sat Narayan Kaushik, reported in (2016) 6 SCC 303 in support of his above submissions.
We have heard the learned Counsels appearing for the respective parties at length and we have considered the facts and circumstances of this case. It is not in dispute that the order of punishment dated May 5, 2014 was passed by the Disciplinary Authority placing reliance on the inquiry report dated October 29, 2010 submitted by the inquiry officer as also taking into consideration the reply of the respondent in first W.P.S.T.-I thereto. It is also not in dispute that Article of Charge no.I levelled against him was proved partially according to the above inquiry report. Article of Charge no.II was not proved according to the above inquiry report. The Article of Charge no.III was proved according to that report. The learned Tribunal while adjudicating the validity of the order of punishment arrived at a conclusion that the charge no.III levelled against the respondent in the first W.P.S.T.-I was not proved.
The learned Tribunal did not interfere with the finding of the inquiry officer to the extent that "it was definitely an indiscreet act on the part of the respondent in the first W.P.S.T.-I to secure an unauthorised access to the computer and fiddle with the same resulting in deletion of a name of a recorded bargadar, particularly because he had not obtained the consent of the person, Achinta Khanra, L.D.C., who was using the computer with his password." However, according to the learned Tribunal apparently there was no mala fide intention but the indiscreet act indulged in by him should have been best avoided.
It is not necessary for the learned Tribunal to deal with the Article of Charge no.II since according to the inquiry report it was not proved.
With regard to the Article of Charge no.III, according to the inquiry report it was proved. But the learned Tribunal interfered with the same to arrive at a conclusion that the same was not established. The above charge was relating to withholding of the case records with a view to deprive the bargadar concern of his rights by tampering with the computer data base and deleting the name of that bargadar with mala fide intention. According to the inquiry report the evidence of one Radheshyam Maity, Amin, who was the dealing assistant concerned was that the concerned file had been received by him from the respondent in the first W.P.S.T.-I on January 10, 2008, after joining his duty on that date. The learned Tribunal was not inclined to accept the finding of the inquiry officer that in a block level office, transmissions of files between an officer and the staff were not normally done by maintaining movement register. On perusal of the evidence on material, we are of the opinion, that from the evidence of aforesaid Radheshyam Maity it was proved that the file was handed over to him by the respondent in the first W.P.S.T.-I on January 10, 2008 i.e. after the date of incident. So, it was lying in the custody of the respondent in the first W.P.S.T.-I on January 9, 2008, i.e. the date of the incident. However, the mala fide intention of the respondent in the first W.P.S.T.-I was not proved since the aforesaid Radheshyam Maity joined his duty on January 10, 2008.
Further, our observation lends support from the observation made in the inquiry report to the extent that the mother copy/hard copy of record of right under reference was not tampered with. So, the interference with the impugned judgment on that ground is not required.
With regard to issue of the scope of interference of the Court/Tribunal with the quantum of punishment which is decided by the Disciplinary Authority in connection with a proceeding, the basic principle applicable under the administrative law in this regard is required to be examined from the stand point of Wednesbury principles and doctrine of proportionality. Lord Greene in his celebrated judgment of Associated Provincial Picture Houses, Ltd. vs. Wednesbury Corporation, reported in (1947) 2 ALL ER 680 laid down the principles and the relevant portion of the above decision is quoted below:-
". . . . . I do not wish to repeat what I have said, but it might be useful to summarise once again the principle, which seems to me to be that the court is entitled to investigate the action of the local authority with a view to seeing whether it has taken into account matters which it ought not to take into account, or, conversely, has refused to take into account or neglected to take into account matters which it ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that the local authority, nevertheless, have come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not that of an appellate authority to override a decision of the local authority, but is that of a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in it.. . . ."
(Emphasis supplied) According to the above principles, when answer to a question whether the local authority took into account the matters which ought not to take into account, or, conversely, has refused to take into account or neglected to take into account matters which it ought to take into account the answer is in favour of the authority, it might still be possible to say that local authority came to a conclusion so unreasonable that no reasonable authority could ever come to it. This is recognized as the "Wednesbury principles."
These principles were followed in United Kingdom to examine the validity of administrative action. Lord Diplock in Council of Civil Service Unions & Ors. vs. Minister for the Civil Service, reported in (1984) 3 ALL ER 935 observed that the principles of judicial review of administrative action are based upon three heads of grounds namely, illegality, procedural irregularity and irrationality with further observation that proportionality was a future possibility and the relevant portion of the above decision is quoted below:-
". . . . . Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice."
(Emphasis supplied) Though administrative action was traditionally being tested in the touchstone of Wednesbury grounds, the same was not subsequently applied by the Courts in England to judge the validity of administrative actions in cases of interference with Human Rights by asking themselves whether such administrative action had acted irrationally or perversely and adopted the principles of "strict scrutiny". Reference may be made to the decision of Spycatcher Case Attorney General vs. Guardian Newspapers Ltd. (No.2), reported in (1988) 3 ALL ER 545.
It will be out of context to observe here that the principles of "strict scrutiny" is not applicable on the case in our hand because it does not relate to alleged interference with Human rights. But the above principle is discussed in brief to cover all aspect relating to "proportionality".
Thereafter, the concept of the "primary review and secondary review" by courts were introduced in explaining the respective fields of its applicability taking into consideration the principle of "proportionality" or "strict scrutiny" in the decision of Brind & Ors. vs. Secretary of State for the Home Department, reported in (1991) 1 ALL ER 720. It was observed by Lord Bridge of Harwich in the Brind Case (supra) that where convention rights were in question the courts could exercise a right of primary review and the court would exercise a right of secondary review based on Wednesbury principles in those cases where the rights under convention were not affected. The relevant portion of the above decision is quoted below:-
"But I do not accept that this conclusion means that the courts are powerless to prevent the exercise by the executive of administrative discretions, even when conferred, as in the instant case, in terms which are on their face unlimited, in a way which infringes fundamental human rights. Most of the rights spelled out in terms in the convention, including the right to freedom of expression, are less than absolute and must in some cases yield to the claims of competing public interests. Thus, art IO (2) of the convention spells out and categorises the competing public interests by reference to which the right to freedom of expression may have to be curtailed. In exercising the power of judicial review we have neither the advantages nor disadvantages of any comparable code to which we may refer or by which we are bound. But again, this surely does not mean that in deciding whether the Secretary of State, in the exercise of his discretion, could reasonably impose the restriction he has imposed on the broadcasting organizations, we are not perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and that nothing less than an important competing public interest will be sufficient to justify it. The primary judgment as to whether the particular competing public interest justifies the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make that primary judgment."
The concept of proportionality is not alien in view of the fundamental rights guaranteed in Part-III of the Constitution of India. Since 1950 the principle of proportionality was applied time and again to examine the validity of administrative action taking recourse to the provisions of Articles 14, 19 and 21 of the Constitution of India. Chief Justice of India Patanjali Sastri, as His Lordship then was observed in the matter of The State of Madras vs. V.G. Row, reported in AIR 1952 SC 196 observed that the court should bear in mind the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of imposition and the prevailing condition at that time. The relevant portion of the above decision is quoted below:-
". . . . . the Court should consider not only factors such as the duration and the extent of the restrictions, but also the circumstances under which and the manner in which their imposition has been authorised. It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.. . ."
The Hon'ble Supreme Court took recourse to the provision of Article 14 to adjudicate the question of arbitrariness of the order of punishment in Ranjit Thakur vs. Union of India & Ors., reported in (1987) 4 SCC 611, wherein the Hon'ble Supreme Court recognized the power of the Court to examine the quantum of punishment in the touchstone of proportionality in the event the punishment was shockingly disproportionate to the misconduct proved. The relevant portion of the above decision is quoted below:-
"26. In Bhagat Ram v. State of Himachal Pradesh this Court held : [SCC p. 453, SCC (L&S) P. 353, para 15] It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution.
The point to note, and emphasise is that all powers have legal limits.
27. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review."
The scope of exercising discretionary power by the High Court/Tribunal has further been explained in the matter of B.C. Chaturvedi vs. Union of India & Ors., reported in (1995) 6 SCC 749 observing that in the event the punishment imposed by the disciplinary authority or appellate authority shocks the conscience of the High Court/Tribunal, ordinarily the Court or Tribunal should direct the disciplinary/appellate authority to reconsider the penalty imposed and in exceptional and rare cases only, the Court/Tribunal may impose appropriate penalty and that too with cogent reasons in support thereof. The relevant portion of the above decision is quoted below:-
"18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
In the decision of Om Kumar & Ors. vs. Union of India, reported in (2001) 2 SCC 386 the Hon'ble Apex Court adopted the principle of "primary review and proportionality" vis-à-vis the principles of secondary review and "Wednesbury reasonableness" explaining the fields of applicability of the respective principles as follows:-
"Thus, the principle of primary review and proportionality on the one hand and the principle of secondary review and Wednesbury reasonableness on the other hand gave a new dimension to administrative law, the former applying in the case of fundamental freedoms and the latter, in other cases.
(iv) Area of discretion of administrator - varies in different situations"
The principles of law followed in the matter of Om Kumar (supra) has been repeated and reiterated by the Hon'ble Supreme Court in Union of India & Ors. vs. Bodupalli Gopalaswami, reported in (2011) 13 SCC 553 explaining the scope of interference with the punishment imposed by the disciplinary/appropriate authority applying the Wednesbury principles of proportionality as also imposing appropriate punishment upon the delinquent employee assigning cogent reasons for treating the above case as exceptional and rare one and the relevant portion of the above decision is quoted below:-
"47. In the circumstances, the punishment of dismissal from service is shockingly disproportionate to the gravity of the offences held to be proved. While we may not interfere with the findings of guilt, in a case of this nature, having regard to the nature of offences, we may consider the proportionality of punishment to find out whether it is perverse and irrational. Even accepting the said findings of guilt regarding Charges 1, 4, and 5 (c), it is clearly a case of shockingly disproportionate punishment being meted out to the Commadant for offering an alternative interpretation to Para 86, for the lapses of his supervisory officer and for the breach committed by the contractor.
48. In the normal course, we would have set aside the punishment and referred the matter back for consideration and imposition of a lesser punishment. But having regard to the fact that the matter is more than 20 years old and the first respondent reached the age of superannuation long ago, no purpose would be served, by referring it back to the appellants. We are of the view that on the facts and circumstances, interests of justice would be served if the punishment of dismissal is substituted by the following punishment: (a) forfeiture of eight years of service for the purpose of pension; and (b) severe reprimand. As a consequence, the order forfeiting pension requires to be set aside as pension can be denied under Pension Regulation 16 (a) only to the officers who are cashiered, dismissed or removed from service."
Coming back to the instant case we find that though three Article of Charges were issues against the petitioner by virtue of the charge sheet dated February 10, 2009, the learned Tribunal did not interfere with the finding of the inquiry officer to the extent that the Article of Charge - I had been partially proved. As a consequence there was illegality, irrationality or procedural impropriety in arriving at a conclusion that the charge levelled against the respondent in the first W.P.S.T.-I was proved partially so far as the Article of Charge - I was concerned.
After giving our thoughtful considerations to the above facts and circumstances of this case as also the submissions made by the learned Counsels appearing for the respective parties and the settled principles of law as referred to hereinabove, we find that even taking it for granted that the ill motive of respondent in the first W.P.S.T.-I has not been proved in the inquiry proceeding, it will be difficult for us to hold that amongst the permissible punishments, the choice of punishment of penalty of "withholding of three increments with cumulative effect" in terms of Rule 8 (ii) of the West Bengal Services (Classification, Control & Appeal) Rules, 1971 upon the respondent in the first W.P.S.T.-I was violative of the Wednesbury principles nor it could be said that the above punishment was shockingly disproportionate.
The decision of Roop Singh Negi (supra) deals with the issue of proving the charges levelled against the delinquent employee. Taking into consideration the distinguishable facts and circumstances of the instant case this judgment is not applicable. The decision of Sat Narayan Kaushik (supra) deals with power of interfere with the quantum of punishment imposed by the appointing authority. Since the instant appeals are disposed of on the basis of a discussion in details on that issue, further discussion in this regard is not necessary. The decision of Ram Singh Ex-Constable (supra) deals with the nature of misconduct and interference with the order of punishment issued by the appointing authority. In view of the facts and circumstances involved in these instant appeals this judgment has not manner of application.
In view of the discussions and observations made hereinabove the first W.P.S.T.-I succeeds. The order impugned to the above writ application stands quashed and set aside.
The second W.P.S.T.-II fails and is dismissed accordingly. There will be, however, no order as to costs.
Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis.
I agree. (Debasish Kar Gupta, J.)
(Shekhar B. Saraf, J.)