Calcutta High Court (Appellete Side)
Hayagrib Naiya vs Diamond Harbour Municipality & Ors on 10 April, 2015
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
W.P. 24257 (W) of 2014
Hayagrib Naiya
Versus
Diamond Harbour Municipality & Ors.
For the petitioners : Mr. Partha Sarkar
Mr. Abhijit Basu
For the respondent-Municipality : Mr. Shyama Prasad Purakait
Ms. Moumita Mondal
Judgment on: 10.04.2015.
Debasish Kar Gupta , J. :
This writ application is directed against an order of punishment passed by the respondent authority under memo No.545/Personal (H. Naiya)/DHM/14 dated July 24, 2014. By virtue of the impugned order punishment of "compulsory retirement from service" with effect from July 31, 2014 was passed against the petitioner.
The facts of this case are stated below in a nutshell:-
The petitioner was working for gain in the post of a Clerk of Diamond Harbour Municipality, District-South 24-Parganas, from the year 1996. On June 30, 2009 an untoward incident took place in front of the office of Sub Divisional Officer, Diamond Harbour, South 24-Parganas. The above office was situated beside the office of Diamond Harbour Municipality. Consequent upon the above incident one Milan Chakraborty and his Personal Security Officer entered into the office of the respondent-Municipality. The above Personal Security Officer opened fire twice from his service revolver to restrain a group of people from chasing aforesaid Milan Chakraborty. The aforesaid Milan Chakraborty came upstairs of the office of respondent-Municipality. The employees of the respondent-Municipality closed the gate of first floor of the respondent-
Municipality. The Inspector-in-charge of Diamond Harbour Police Station was informed of the above incident by the employees of the respondent-Municipality by a communication dated June 30, 2009. One Tapas Chakraborty, Sub-
Inspector of Diamond Harbour Police Station, who happened to be in duty in the area concerned at the time of the above incident lodged a complaint in the Diamond Harbour Police Station, District-South 24-Parganas. The Inspector-in-
charge of Diamond Harbour Police Station initiated Diamond Harbour P.S. Case No.294 dated June 30, 2009 treating the above complaint as First Information Report.
By an order dated July 13, 2009 passed by the authority of the respondent-Municipality, the petitioner was placed under suspension. The petitioner filed an application under Article 226 of the Constitution of India bearing W.P. No.14372 (W) of 2009 challenging the above order of suspension dated July 13, 2009. No interim relief was granted to the petitioner in the above writ application. The petitioner preferred an appeal against the order of refusal of interim relief in the above writ application.
The petitioner received a show-cause notice dated August 11, 2009 from the authority of the respondent-Municipality asking the petitioner to show-cause of rendering his assistance to the aforesaid Milan Chakraborty and his Personal Security Officer ignoring the question of safety and security of employees of the respondent-Municipality. The petitioner filed another writ application bearing W.P. No.17467 (W) of 2014 challenging the above show-cause notice.
An appeal bearing A.S.T. 539 of 2009 along with A.S.T.A. 78 of 2009 was disposed of by a Division Bench of this High Court along with the aforesaid writ applications, by an order dated April 11, 2011. The operative portions of the above judgment are set out hereinbelow:-
". . . . For the aforementioned reasons, we cannot permit the respondent authorities herein to take any step against the appellant/petitioner on the basis of the impugned show-cause notice dated 11th August, 2009, in view of their closed mind and biased attitude towards the appellant/petitioner.
In the aforesaid circumstances, the order of suspension dated 13th July, 2009 issued against the appellant/petitioner is liable to be quashed and the same is accordingly quashed. The respondents are also restrained from taking any step and/or further step on the basis of or pursuant to show cause notice dated 11th August, 2009 against the appellant herein in any manner whatsoever.
The respondent authorities particularly the respondent Nos.2, 3 and 5 are directed to allow the appellant/petitioner to forthwith resume his duties and pay all admissible salaries and allowances regularly including the arrears with effect from the dated of suspension upon adjusting the subsistence allowance already paid to the said appellant/petitioner.
This application thus stands disposed of.
In view of the aforesaid order, no purpose will be served in keeping the appeal as well as the writ petitions pending. Therefore, both the appeal and the writ petitions are treated as on day's list and disposed of accordingly.
In the facts of the present case, there will be, however, no order as to costs.
Urgent xerox certified copy of this order, if applied for, shall be given to the appearing parties, as early as possible.
(Pranab Kumar Chattopadhyay, J) (Mrinal Kanti Sinha, J)"
The respondent-Municipality filed petition for special leave to appeal bearing (Civil) Nos.15724-25/2011 before the Hon'ble Supreme Court. By an order dated July 5, 2011 the Hon'ble Supreme Court directed the parties to exchange affidavits. Liberty was granted to the Municipality to continue with the disciplinary proceeding which had been initiated against the writ petitioner on the basis of the aforesaid show-cause notice dated August 11, 2009. Liberty was also granted to the writ petitioner to file reply to the above show-cause notice. The contempt proceeding initiated by the writ petitioner was also stayed by the aforesaid order subject to permitting the writ petitioner to resume his duties.
The writ petitioner filed a reply dated July 22, 2011 to the aforesaid show- cause notice denying and disputing the allegations made against him in the above show-cause notice.
A charge-sheet dated April 12, 2012 was issued by the respondent- Municipality against the writ petitioner in connection with the incident under reference asking him to submit reply to the same within ten (10) days after receipt of the above charge-sheet.
By virtue of the above charge-sheet a proposal was made for conducting enquiry alleging misconduct or misbehavior of the petitioners in connection with the aforesaid incident of June 30, 2009. The above charge-sheet contained a decision of the respondent authority to proceed with the enquiry ex parte in case of failure the petitioner either to submit statement of defence or to appear before the enquiry officer.
The petitioner submitted his reply dated April 25, 2012 to the above charge-sheet. In the above reply the petitioner raised an objection against an order passed by the respondent-Municipality appointing one Sri Mira Haldar, Councillor Ward No.10 of the respondent-Municipality as Presiding Officer in connection with purport the disciplinary proceeding started against the writ petitioner before issuance of the above charge-sheet which he had come to know on receipt of a communication issued by the respondent authority under Memo No.A-419/D.H.M. dated April 12, 2012 (at pages 77 and 78 of this writ application).
On different dates of hearing in connection with the above inquiry proceeding took place. The petitioner submitted representations dated February 13, 2013, March 2, 2013, March 15, 2013 and May 23, 2013 before the Inquiry Officer with a prayer of supplying minutes of the above hearing and other relevant documents to the petitioner. In the representation dated February, 2013, the petitioner stated that he was not aware of the change of enquiry officer. But he did not receive any information in respect of the same. Ultimately, by an order dated May 23, 2013 the prayer of supplying certified copies of the depositions of ten (10) witnesses was allowed subject to compliance of standing norms of the office. The petitioner submitted a representation dated May 24, 2013 to the Inquiry Officer informing him that he had not prayed for supply of certified copy of any order passed by the authority. Rather he prayed for supplying of true copy of the minutes of disciplinary proceeding under reference as also other relevant documents.
The inquiry report dated February 7, 2014 of the Inquiry Officer was supplied to the petitioner by the respondent no.2 with a show-cause notice dated February 21, 2014 informing him that the above authority was of the opinion that the charges levelled against the petitioner had been proved.
The petitioner submitted his reply dated March 8, 2014 to the above show- cause notice.
Subsequently, another show-cause notice dated May 17, 2014 was served upon the petitioner giving an opportunity of submitting reply in respect of proposed order of punishment of "compulsory retirement from service." The petitioner submitted his reply to the above notice on May 30, 2014. The impugned order of punishment was passed by the respondent authority on July 24, 2014.
It is submitted by the learned advocate appearing for the petitioner that the impugned charge-sheet dated April 12, 2014 was not based on relevant materials. According to him, proposal for conducting an inquiry as also decision of proceeding with the inquiry against the petitioner ex parte in the event of failure on the part of the petitioner to attend such inquiry cannot be sustained in law.
According to the learned counsel the procedure followed in the inquiry proceeding cannot be sustained in law on the ground of non-supply of the copies of the minutes and other relevant documents to the petitioner on the basis of his prayers.
According to the learned counsel appearing for the petitioner the show- cause notice dated February 21, 2014 cannot be sustained in law on the ground of formation of opinion finally before giving him an opportunity to give reply to the same.
According to him, the show-cause notice dated May 17, 2014 was also bad in law on the ground of arriving at a final decision with regard to committing of offences by the petitioner before considering the reply which might be given by the petitioner to the above show-cause notice.
It is finally submitted by the learned counsel appearing for the petitioner that the impugned order of punishment is liable to be set aside on the ground of errors committed in the decision making process of issuing show-cause notice, charge-sheet, conducting of inquiry proceeding, non-supply of the copy of the inquiry report along with the second show-cause notice as also subsequent notice dated May 17, 2014. According to him, the impugned order of punishment is not sustainable in law on the ground of absence of reasons in support of imposing the punishment under reference without dealing with the reply to the show-cause notices under reference, non-supply of inquiry report before formation of opinion with regard to committing of offences by the petitioner without giving an opportunity submitting representation to the inquiry report as also repetition and reiteration of the mind set of the respondent authority in show-cause notice dated May 17, 2014.
The learned counsel appearing for the petitioner relied upon the decision of Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors., reported in (1993) 4 SCC 727, Bisram Arak Vs. Eastern Coalfields Ltd. & Ors., reported in (2006) 2 CLJ (Cal) 427 and State of West Bengal Vs. Asis Das Gupta, reported in 2013 (5) CHN (CAL) 440.
A point of maintainability of this writ application is raised by the learned counsel appearing on behalf of the respondent-Municipality on the ground of availability of a statutory appellate forum. It is submitted by the learned counsel appearing for the respondent-Municipality that the copies of the inquiry report were not supplied to the petitioner but a liberty was granted to the petitioner by the inquiry officer by an order dated May 23, 2013 to collect certified copies of the depositions of the witnesses on payment of charges for the same. The charges levelled against the petitioner were proved in the inquiry proceeding as appears from the inquiry report. It is further submitted by him that the disciplinary authority arrived at a decision on the basis of the inquiry report submitted in this matter.
The learned counsel appearing on behalf of the respondent-Municipality relied upon the decision of Union of India & Ors. Vs. Narain Singh, reported in (2002) 5 SCC 11, U.P. State Spinning Co. Ltd. Vs. R.S. Pandey & Anr., reported in (2005) 8 SCC 264, Govt. of A.P. & Ors. Vs. Mohd. Nasrullah Khan, reported in (2006) 2 SCC 373, M. Gurudas & Ors. Vs. Rasaranjan & Ors., reported in (2006) 8 SCC 373 and State Bank of India Vs. Allied Chemical Laboratories & Anr., reported in (2006) 9 SCC 252.
Having heard the learned counsels appearing for the respective parties as also after careful consideration and facts and circumstances involved in this case, I am of the opinion that according to the settled principles of law entertaining of a application under Article 226 of the Constitution of India even in a case of availability of alternative remedy to prefer a statutory appeal is the discretion of a Court sitting in extraordinary jurisdiction of Article 226 of the Constitution of India. In appropriate case above discretion can be exercised in a case of violation of fundamental or any legal right. Reference may be made to the decision of Harbanslal Sahnia Vs. Indian Oil Corporation Ltd. reported in (2003) 2 SCC 107 and the relevant portions of the decision are set out below:-
"7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights;
(ii) where there is failure of principles of natural justice; or (iii) where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn. v. Registrar of Trade Marks.) The present case attracts applicability of the first two contingencies. Moreover, as noted, the petitioners' dealership, which is their bread and butter, came to be terminated for an irrelevant and non-
existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings." (Emphasis supplied) In this case a prima facie case has been made out by the petitioner for examining the allegation of violation of fundamental rights including the principles of natural justice causing prejudicial effect on him. Those are to be considered on its merits.
In the matter of U.P. State Spinning Co. Ltd. (supra), the judgment was delivered taking into consideration the question of prejudice caused to the petitioner for non-supply of inquiry report as also to payment of back wages and other benefits as a consequence of reinstatement. The above decision is not applicable in this case in view of the distinguishable facts and circumstances as referred to hereinabove.
In the matter of Allied Chemical Laboratories (supra), the Hon'ble Supreme Court delivered the judgment considering the result of collateral proceeding wherein the decree/final order was challenged indirectly on the ground that the application of the respondent for cross-examination had earlier been wrongly rejected. This decision does not help the respondents in view of the above distinguishable facts and circumstances.
Therefore, the preliminary objection raised on behalf of the respondent- Municipality is rejected.
It is the settled proposition of law that appointment of Inquiry Officer while issuing the charge-sheet prove the mind set of the authority with regard to the charges levelled against the delinquent employee in the charge-sheet without giving him an opportunity of giving reply to the same for consideration of the authority. Reference may be made to the decision of State of Punjab Vs. V.K. Khanna, reported in (2001) 2 SCC 330 and the relevant portions of the judgment are quoted below:-
"34. The High Court while delving into the issue went into the factum of announcement of the Chief Minister in regard to appointment of an enquiry officer to substantiate the frame of mind of the authorities and thus depicting bias - what bias means has already been dealt will by us earlier in this announcement has been taken note of as an illustration to a mindset viz.: the inquiry shall proceed irrespective of the reply - is it an indication of a free and fair attitude towards the officer concerned? The answer cannot possibly be in the affirmative. It is well settled in service jurisprudence that the authority concerned has to apply its mind upon receipt of reply to the charge-sheet or show- cause as the case may be, as to whether a further inquiry is called for. In the event upon deliberations and due considerations it is in the affirmative - the inquiry follows but not otherwise and it is this part of service jurisprudence on which reliance was placed by Mr. Subramanium and on that score, strongly criticised the conduct of the respondents (sic appellants) herein and accused them of being biased. We do find some justification in such a criticism upon consideration of the materials on record."
(Emphasis supplied) After considering the charge-sheet dated April 12, 2012, I find that it is not in dispute that the respondent authority proposed for conducting an inquiry proceeding against the petitioner as also to proceed ex parte against the petitioner in case of failure of the petitioner either to submit statement of defence or to appear before the Inquiry Officer in person. Necessary to mention here that one enquiry officer was appointed before issuing the above charge-sheet (at pages 77 and 78 of this writ application). Therefore, the above charge-sheet is liable to be set aside.
It is also the settled proposition of law that in inquiry proceeding the Inquiry Officer is under obligation for supplying of relevant documents to the delinquent employee on his prayer and the inquiry proceeding is liable to be set aside on the ground of refusal to supply those documents to the petitioner before proceeding further. Reference may be made to the decision of State Bank of India Vs. Tapan Kr. Das, reported in 1993 (2) CHN 103 and the relevant portion of the above decision run as follows:-
"89. On the question of denial of natural justice, despite Mr. Gupta's submissions that no document which reliance had been placed by the Bank had been withheld from the writ petitioner/respondent, it is apparent that two of the document on which the writ petitioner/respondent had wanted to rely, and which were in the custody of the Bank, had not been made available to the writ petitioner/respondent during the enquiry. It also appears that, although, the Bank had relied on three enquiry reports submitted by Sri M. K. Mukherjee and Sri D. K. Bagchi, who were also examined on behalf of the Bank, in connection with the said reports, the same had not been made available to the writ petitioner/respondent. The withholding of the documents asked for by the writ petitioner/respondent, as also the three enquiry reports, was not proper and may have caused grave prejudice to the writ petitioner/respondent in his defence. It may be that the Bank and the other respondents had no personal animosity against the writ petitioner/respondent, but in conducting the disciplinary enquiry, they were bound to act fairly and in accordance with the principles of natural justice and administrative fairplay, as has been repeatedly stressed both by the Supreme Court and the different High Courts. By withholding the above documents, the Bank, in our view failed to do so. Mr. Gupta's submissions regarding the admissions made by the writ petitioner/respondent in his written statement and the right of the Disciplinary Authority to inflict punishment without holding any enquiry, loses significance in view of the appellant's decision to hold the disciplinary enquiry. Having chosen to do so, the appellant were bound to comply with all the requirements for holding such enquiry. We, therefore, see no reason to interfere with the finding of the learned Trial Judge on this score.
(Emphasis supplied) It is not in dispute that though the petitioner submitted as many as four representations dated February 13/21, 2013, March 2, 2013, March 3, 2013 and May 23, 2013, the relevant documents relating to the inquiry proceeding were not supplied to him. The Inquiry Officer continued to proceed with the inquiry without even refusing the prayers made by the petitioners in his above representations. It is also not in dispute that by a order dated May 23, 2013 was passed giving liberty to the petitioner to collect the certified copies of the depositions made by the witnesses upon payment of cost for the same. No material is produced before this Court on the strength of which the Inquiry Officer was entitled to realise cost of supplying relevant documents to the delinquent employee. Therefore, the decision making process of preparing the inquiry report under reference cannot be sustained in law.
It is a settled proposition of law that in a case where the enquiry officer is not the delinquent employee, he has a right to receive a copy of the enquiry report before the disciplinary authority arrives at its conclusion with regard to the guilt or innocence of the delinquent employee on the basis of the charges levelled against him provided it is found that the furnishing of the report of the enquiry officer would have made a difference to the result of the disciplinary authority. Reference may be made to the judgment of a Constitutional Bench of the Hon'ble Supreme Court delivered in the matter of Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors., reported in (1993) 4 SCC 727 and the relevant portion of the above judgment run as follows:-
"29. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to the defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.
30. . . . . .
31. . . . It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If The employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law."
(Emphasis supplied) Admittedly, the copy of the inquiry report was supplied to the petitioner along with the second show-cause notice dated February 21, 2014. After considering the aforesaid second show-cause notice dated February 21, 2014 (annexure P-9 at page 96 of this writ application), I find the disciplinary authority arrived at a final conclusion that the charges levelled against the petitioner had been proved. The relevant paragraph of the above second show-cause notice is quoted below:-
"On perusal of the documents, I am of the opinion that the charges against the delinquent Shri Hayagrib Naiya have been proved."
Therefore, the above show-cause notice cannot be sustained in law. In view of the above admitted facts, the other show-cause notice relating proposed punishment is also liable to be quashed.
There is no dispute that the impugned order of punishment was passed on the basis of enquiry report without giving any opportunity to submit representation to the above report. Considering the facts of this case as discussed hereinabove, I find that furnishing of the above report would have made a difference to the result of the disciplinary proceeding under reference in its all possibility.
In the decision of M. Gurudas (supra) the Hon'ble Supreme Court considered the question regarding existence of prima facie case, which involved finding of fact as to whether a case for trial had been made out as also whether other factors requisite for grant of injunction existent while considering the scope of granting injunction in accordance with the provisions of Order 39, Rules 1 and 2 of the Civil Procedure Code, 1908. In the matter of Narain Singh (supra), the Hon'ble Supreme Court considered the question of interfering with the quantum of punishment in a case where the charges levelled against the petitioner had been proved in the disciplinary proceeding. In the matter of Mohd. Nasrullah Khan (supra), the question of violations of principles of natural justice was not under consideration of the Hon'ble Supreme Court. In view of the above distinguishable facts and circumstances, the above decisions are not applicable in this case.
On the basis of discussions and observations made hereinabove the charge-sheet dated April 12, 2012, the report of the inquiry officer dated February 7, 2014, the show-cause notices dated February 21, 2014 and May 17, 2014 respectively as also the impugned order of punishment dated July 24, 2014 are quashed and set aside.
This writ application is, thus, disposed of.
There will be, however, no order as to costs.
Urgent photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
( Debasish Kar Gupta, J.) Later:
10.04.2015 A prayer is made on behalf of the respondent-Municipality for staying of operation of this order and the same is rejected.
( Debasish Kar Gupta, J.)