Calcutta High Court (Appellete Side)
Kunal Chatterjee vs National Bank For Agriculture & Rural ... on 21 September, 2017
Author: I.P. Mukerji
Bench: I.P. Mukerji
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
W.P. No. 12624 (W) of 2005
Kunal Chatterjee
v.
National Bank for Agriculture & Rural Development & Ors.
For the petitioners:- Mr. Partha Sarathi Bhattacharyya, Sr. Advocate
Mr. Soujanya Bandopadhyay
...Advocates
For the respondents: Mr. Arijit Chaudhury, Sr. Advocate
Mr. Suchit Kumar Banerjee
Mr. Indranil Banerjee
...Advocate
Judgement on:- 21st September, 2017
I.P. MUKERJI, J.
On 16th July, 1993 the writ petitioner, an employee of the respondent bank was suspended. He was to receive only subsistence allowance during the period of his suspension. He was forbidden to enter the bank's premises unless advised to do so by the bank.
On 29th July, 1993 he was chargesheeted. He had allegedly at or about 16- 45 hours on 26th June, 1993 written "abusive, indecent, obscene and disparaging remarks" against a woman employee, Nupur Roy Chowdhury working as a clerk Gr-I, on the wall around the staircase from the ground to the first floor between the 8th and 14th step. According to the graffiti, the woman was of easy virtue available to everybody on payment of consideration. According to the bank this remark had imputed grave indignity to her and caused grave injury to her character and reputation. An enquiry was started on 30th September, 1993.
The presenting officer produced nine witnesses. The defence counsel tendered four witnesses.
On 12th April, 1994 the enquiry officer made and published a report stating inter alia that the charges against the writ petitioner were not established. However, on 21st May, 1994 the respondent bank informed him that the competent authority had considered the evidence and had came to the conclusion that the charges against him had been proved. The petitioner was asked to show cause why the following penalty should not be imposed.
"reduction of pay by 3 (three) stages in your scale of pay for a period of one year from the date of final order, having the effect of postponing the date of the future increments."
The entire enquiry culminating in the issuance of the said show cause notice asking the petitioner why the proposed punishment should not be imposed was challenged in this court by the writ petitioner, by filing a writ application (C.O. No. 8098 (W) of 1994). In it Mr. Justice K.J. Sengupta on 30th November, 2000 came to the finding that the conclusion reached by the enquiry officer had been reversed by the competent authority without giving an opportunity to the writ petitioner to contest it. The findings arrived at by the competent authority were final. The petitioner was held guilty. The petitioner was called upon to make a submission only on the sentence or punishment that was proposed. Hence, the findings of the competent or disciplinary authority were to be treated as tentative to which the petitioner could file his reply. In deference to the order of this court the competent authority considered the reply of the petitioner dated 1st June, 1994.
On 8th May, 2001 the disciplinary authority re-affirmed its earlier order. Its order was as follows:
"I, therefore, pass the order imposing on charge sheeted employee, the penalty of reducing the pay by 3 stages in his scale of pay for a period of one year from the date of this order having the effect of postponing the date of future increment and his period of suspension may be regularised by grant of Extra Ordinary Leave not counting for increment. The period shall be treated as break in service for the purpose of gratuity."
On 19th August, 2002 the appellate authority upheld the order of disciplinary authority. All its observations and findings were endorsed, without any reason.
ARGUMENTS:
Mr. Bhattacharyya for the petitioner made the following submissions. He said that when the enquiry officer had exonerated the writ petitioner, ordinarily, the disciplinary authority should not have overturned the decision. If the disciplinary authority had to overturn or reverse the finding of the enquiry officer he was obliged to give a hearing to the petitioner. It was also obliged to give proper reason for reversing the finding of the enquiry officer, citing Punjab National Bank And Other v. Kunj Behari Misra reported in (1998) 7 SCC 84. Mr. Bhattacharyya also argued that the alleged misconduct did not fall within the enumerated acts of misconduct in the service regulations or standing order citing Rasiklal Vaghajibhai Patel v. Ahmedabad Municipal Corporation and another reported in AIR 1985 SC 504. It was also said that if the finding of guilt was made on no evidence or as such as could not be reached by any ordinary prudent man or is perverse or is made at the dictates of a superior authority the court can interfere with the finding citing Kuldeep Singh v.
Commissioner of Police and Others reported in (1999) 2 SCC 10 and State of Assam v. Mohan Chandra Kalita and Anr. reported in AIR 1972 SC 2535.
Learned Counsel argued that a department proceeding was a quasi judicial proceeding. The enquiry officer performs a quasi judicial function. The charges levelled against the delinquent officer must have been proved. This was true even at the appellate stage. He relied on Roop Singh Negi v.
Punjab National Bank and Others reported in (2009) 2 SCC 570.
Lastly, he said that the punishment inflicted on the petitioner was not proportionate. Any punishment should be proportionate to the guilt relying on Apparel Export Promotion Council v. A.K. Chopra reported in (1999) 1 SCC 759.
Mr. Chaudhury for the respondent cited High Court of Judicature At Bombay, though its Registrar v. Shashikant S. Patil And Another reported in (2001) 1 SCC 416 which said that the report of the enquiry officer was not binding on the disciplinary committee. The role of the enquiry officer was to collect evidence, give an opportunity to the delinquent to explain himself and to forward its recommendation to the disciplinary or punishing authority. The disciplinary authority might or might not accept the recommendation. It was not necessary for the disciplinary authority to "discuss materials in details and contest the conclusion of the enquiry officer."
Mr. Chaudhury added that misconduct need not be defined relying on Probodh Kumar Bhowmick v. University of Calcutta and Dilara Begum v. State of West Bengal reported in 1994 (2) CLJ 456 , Punjab National Bank And Other v. Kunj Behari Misra reported in (1998) 7 SCC 84. Learned Counsel strongly argued that when a finding in a disciplinary proceeding was based on an eye witness account it should not be easily interfered with by the court. In this case, according to the evidence of Dr. Mrs. Khan she had seen the petitioner writing the graffiti on the wall. The graffiti denigrating a woman's character and reputation amounted to misconduct. It has also been labelled as such by the Sexual Harassment of Women at Work Place (Prevention and Prohibition) Act, 2013. He submitted that the punishment imposed on the writ petitioner was very minor. He showed me the scale of pay of the writ petitioner. He said that even if his increments were stopped for one year, at the end of the year the petitioner reached the highest scale of pay in the particular grade and there was no further increment receivable by him. Therefore, there was no real loss caused to the writ petitioner.
DISCUSSION:
It is very important at this stage to analyse the judgement and order dated 30th September, 2000 passed by Mr. Justice K.J. Sengupta. It is very significant to note that his lordship had directed the findings of the disciplinary authority to be considered tentative and not conclusive.
Therefore, the findings of the disciplinary authority would itself be treated as a show cause notice. On this the petitioner would show cause in writing within four weeks of communication of the order.
Now it is imperative to examine the enquiry report in some detail.
The presenting officer produced nine witnesses whereas the defence counsel produced four. The evidence of the first five witnesses M.W. 1, 2, 3, 4 and 5 are all opinion evidence opining that the writing on the wall was made by an employee of the bank. The victim that is to say Smt. N. Roy Chowdhury Clerk Gr-I who was the sixth witness deposed that the letter "K" written on the wall appeared to be the handwriting of the writ petitioner. This again is opinion evidence. Mrs. Chowdhury had not been called as a handwriting expert. Her evidence was based on suspicion. She confessed that she was at one point of time on friendly terms with the writ petitioner but when he insisted that she should not be friendly with one P.K.Dholakia and his associates, he may have made the writing on the wall.
Direct eye witness evidence seems to have been given by Dr. Mrs. A.B. Khan, Deputy Manager MW-9. According to her she saw the writ petitioner writing graffiti on the wall, the others dictating or watching. The witnesses for the defence counsel D.W.- 2,3 and 4 deposed that the evidence of Dr. Mrs. Khan was dubious as on 26th June, 2013, the day of the occurrence, the section she was attached to was closed and nobody saw her working.
The delinquients said that they had left the office on that day by 4 p.m. On this basis the enquiry officer came to the findings that the charges against the writ petitioner as well as the other charged employees were not established.
Then the matter came before the competent authority or the disciplinary authority. He appears to have examined the enquiry report. He came to the conclusion, without giving any reasons or hearing the writ petitioner that the conclusions of the enquiry officer were not correct. He summarily held the writ petitioner and co-delinquents guilty and imposed the proposed punishment.
This order was directed to be treated as a tentative order by Mr. Justice K.J. Sengupta. In obedience to this order, the petitioner had filed his written submission or reply.
In my opinion the second disciplinary authority had completely mis- construed the said order. He was not asked to deal with the objections of the petitioner but to re-consider the whole order in the light of the objection filed by the petitioner. In the decision made by the second disciplinary authority on 8th May, 2001 it made an appraisal of the first disciplinary authority's, order with regard to the objections put forward by the petitioner. It commented on the objections, rejected all of them and upheld the order of the first disciplinary authority. Instead of acting as the disciplinary authority, the second disciplinary authority acted as an appellate authority, without advancing intelligible reasons. It concurred with the findings of the first disciplinary authority without an iota of reasons. For example, take a look at paragraph-4 of the impugned decision.
"4. The Competent Authority has recorded the reasons for his differing with the conclusion of the E.O. In para 6 of his order dated 21st May, 1994, the Competent Authority has analysed the full evidence given by witness one Shri P.K. Dholakia and came to the conclusion that there exist a chain of event culminating in writing on the walls of the officer premises wild defamatory, derogatory, slanderous remarks on the victims. I agree with the findings of the Competent Authority."
This does not make any sense to me.
Thereafter the second disciplinary authority states:-
"5. As regards the confusions created by the witness about the name of Guard and about the name of charge sheeted employee, the Competent Authority has come to the conclusion that by not examining one witness it does not automatically follow the other evidence produced in that regard lose their importance. The Competent Authority has been satisfied as regards the name of the charge sheeted employee and game of the guard on the basis of letter dated 6th July, 1993 and the letter from the Security Guard. I agree with the findings of the Competent Authority. The Competent Authority has also analysed the evidence given by Dr. Mrs. Khan and come to the conclusion that the finding of the Enquiry Officer is not correct. Further, there are no anomalies in the evidence of Mrs. A. B. Khan. Further the observations of Competent Authority on the behaviour of witness Dr. Mrs. A. B. Khan cannot be considered as any bias against the charge sheeted employee by any stretch of imagination."
Finally, it came to its conclusion in the following terms:-
"6. After considering all the materials and evidence on record and all the aspect of this case and in view of what is stated above, I do not find any merit in the contentions raised by the CSE in his reply dated 1.6.1994. I, therefore, pass the order imposing on charge sheeted employee, the penalty of reducing the pay by 3 stages in his scale of pay for a period of one year from the date of this order having the effect of postponing the date of future increment and his period of suspension may be regularised by grant of extra ordinary leave not counting for increment. The period shall be treated as break in service for the purpose of gratuity."
The writ petitioner preferred an appeal before the appellate authority. Equally, mechanical was the approach of this authority. On 19th August, 2002 the appeal was dismissed without advancing any reasons. The disposal was made in the following terms.
"This appeal has been filed challenging the findings and order of the Competent Authority I have carefully perused the entire record of the Enquiry Proceedings. I have also gone through the various contentions made by the appellant. In my view there is no merit in the contentions made by the appellant. I observe that these points. Proceedings I have also gone through the various contentions made by the appellant. In my view is no merit in the contentions made by the appellant. I observed that these points have already been duly considered by the competent Authority and I do not find any valid ground for setting aside for changing his findings. Incidentally, I may mention that the unwarranted attitude of the appellant is reflected by his impolite and disrespectful language used against the Competent Authority in fact this appeal could have been withheld by the Competent Authority on this ground alone as provided under the Rule 50
(b) read with Rule 51 (a) of NABARD (Staff) Rules, 1982.
On the basis of the evidence available on record. I am agreeable with the findings of the Competent Authority. In my opinion, keeping in view the seriousness of the mis-conducts, the appellant has been given very lenient punishment. I do not see any justification for modifying the same. This appeal is therefore rejected. I direct that a copy of my order may be served on the appellant."
Let me first deal with High Court of Judicature at Bombay, though its Registrar v. Shashikant S. Patil And Another reported in (2001) 1 SCC
416. A three Judges' bench of the Supreme Court was considering the status of the report of the enquiry officer. In an enquiry the enquiry officer collects the evidence. The delinquent officer has the opportunity of meeting the charges against him. The enquiry officer expresses his view thereon to be considered by the disciplinary or punishing authority. The latter is not bound by those views. It could come to its own decision. It was not required to discuss the evidence or the conclusion of the enquiry officer in detail. Another three Judges' bench of the Supreme Court in the case of Punjab National Bank And Other v. Kunj Behari Misra reported in (1998) 7 SCC 84 opined that when in the enquiry report findings were favourable to a charged employee an opportunity should be given to the delinquent to represent himself before the findings of the enquiry committee can be changed. Mr. Justice Kirpal held.
"19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7 (2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."
In this case this court intervened and directed the second disciplinary authority to take the findings of the first disciplinary authority as tentative and take a final decision after allowing the petitioner to show cause. The delinquent was not given any hearing. The second disciplinary authority in its ruling dated 8th May, 2001 has narrated in a cursory manner how it was dealing with the objections of the petitioner which tantamounted to total non-application of mind, acting mechanically and arbitrarily. Therefore, the law that evolves from these two decisions is that the report of the enquiry officer is just a recommendation on the evidence collected by him and the submissions made before him. Whether the disciplinary authority is in agreement with the enquiry officer or not, will arise after he goes through the evidence and the findings thereon and hears the submissions of the delinquent. Thereafter it will indicate its affirmation or disapproval of the enquiry report, with reasons. Even more is this obligation if the enquiry report exonerates the delinquent and the disciplinary authority proposes to change it.
This kind of an opportunity was not provided to the delinquent. The second disciplinary authority acted as if it was an appellate body. The findings of the first disciplinary authority were commented upon and approved by the second competent authority. The reasons which were advanced by the second disciplinary authority, were in the form of comments on the findings of the first disciplinary authority, were not unnecessary. In Roop Singh Negi v. Punjab National Bank and Others reported in (2009) 2 SCC 570 the Supreme Court has made it very clear that since the order passed by the disciplinary authority has civil consequences they have to be supported by reasons. In fact absence of reasons to justify a finding is enough to set aside an enquiry officer report. The Supreme Court has remarked the following:
"23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."
In my opinion, if an enquiry report can be set aside on the ground of absence of reasons to support a finding, the order of the disciplinary authority can also be set aside on the same ground.
Mr. Justice S. Saghir Ahmed delivering the judgement of Supreme Court in Kuldeep Singh v. Commissioner of Police And Others reported in (1999) 2 SCC 10 spelt out the general principle that the court would normally not interfere with any finding of guilt made in a disciplinary proceeding. However, if the finding was based on no evidence or was such that no ordinary prudent man could reach or was perverse, it could be interfered with by the court.
In this case as it appears from the report of the enquiry officer, quite a few witnesses for the prosecution only expressed their opinion as to what had happened and who in their view had committed the wrongful act. They had no firsthand knowledge. The only basis of the first competent authority's decision was the evidence where Dr. Mrs. Khan who is said to have noticed the incident. This is very seriously controverted by the evidence of the defence witnesses. On that day the office where Dr. Mrs. Khan worked was closed and that she was not anywhere seen around the premises. On this basis the enquiry officer had exonerated the delinquent. I do not see any compelling evidence on which this verdict could have been overturned.
Equally, disappointing is the order of the appellate authority dated 19th August, 2002. In one line the appeal has been disposed of.
"In my view, there is no merit in the contention made by the appellant".
Then the appellate authority proceeded to make its own observations assuming the findings of the disciplinary authority to be established. The relevant rules with regard to disciplinary proceedings against the employees of National Bank for Agriculture and Rural Development, have tried to protect the interest of the delinquent to the maximum extent possible as well as ensure that proper justice is done to the case. It has a procedure for enquiry. In the enquiry the evidence in support of the charges and the defence together with the submissions of the prosecutor as well as the defence is documented. The enquiry officer after a very careful examination of the whole case is required to present his opinion with regard to the guilt of the delinquent, with supporting reasons. The entire records are then to be placed before the disciplinary authority. The disciplinary authority has to give an opportunity to the parties to file written submissions against the enquiry report and hear them especially so if, the disciplinary authority wants to change the recommendation of the enquiry officer of not-guilty to guilty. Then the disciplinary authority is required to give its own reasons concurring with the findings of the enquiry officer or disagreeing with them. On this basis the fate of the delinquent is decided. The appellate authority is to hear the proceeding, following the same rules of natural justice.
The disciplinary proceeding from the very start is required to be absolutely transparent, fair, just and reasonable with opportunities granted to the delinquent at more than one stage to prove his innocence. Let a reasonable man not think that the result of the disciplinary proceeding is pre decided and the proceeding is an idle formality. In my opinion, there has been a travesty of justice in this case.
In this case the guilt of the writ petitioner is not established. In its zeal to punish the offender, the management of the bank has given far more publicity to this incident than it deserved. The whole exercise has achieved the opposite of what was sought to be achieved to vindicate the character of a woman. It has subjected the woman concerned to unnecessary curiosity and publicity and the petitioner to ridicule. In those circumstances, this writ application is allowed, by setting aside the impugned orders dated 8th May, 2001 and 19th August, 2002. All consequential benefits are to be given to the petitioner by respondents by 31st December, 2017.
Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(I.P. MUKERJI, J.)