Calcutta High Court (Appellete Side)
Khagendra Barik vs Union Of India & Ors on 8 July, 2015
Author: Arindam Sinha
Bench: Arindam Sinha
1
WP 14804 (W) 2009
6 08.07.2015
dd Khagendra Barik Vs. Union of India & Ors.
Mr. K. K. Moitra, ld. Sr. adv.
Mr. K.B.S. Mahapatra Mr. Debasish Kar Mr. A. Paul ... ... For the petitioner Mr. Ritwik Pattanayak ... ... For the UOI The petitioner suffered leveling of two articles of charge. A departmental inquiry was held and in the report in regard thereto the conclusion was that the charges were proved. The report was considered by the Disciplinary Authority who rendered a disagreement note dated 27th May, 2009. That disagreement note was challenged by the petitioner by W. P. 9786 (W) of 2009 which was disposed of by order dated 22nd June, 2009. In the order inter alia, the following was recorded :-
"True, while disagreeing with the findings of the enquiry authority, it is for the disciplinary authority to come to certain tentative findings and such findings are required to be communicated to the concerned person so as to given him a chance to respond thereto.
Mr. Chatterjee quite rightly mentions that the spirit of the said report of the disciplinary authority rather suggests that the guilt had already been established."
The petitioner put in a representation pursuant to the said order and on consideration of the same the Disciplinary Authority passed its order dated 30th July, 2009. By the said order the Disciplinary Authority found the articles of charge stood proved and awarded the punishment of dismissal from service. The petitioner has challenged this order.
Mr. Moitra, learned senior advocate appearing on behalf of the 2 petitioner submitted that the impugned order has returned a guilty finding in disagreement with the inquiry report. In that the petitioner was relegated to the position of first show cause regarding the findings on disagreement after which he was entitled to a second show cause on punishment. The petitioner by putting in the said representation was thereafter entitled to the second show cause which he was not given.
Thus he stood deprived of the two stages of defence that he is entitled to as has been declared to be the law by the decision in the case of State of Assam vs. Bimal Kumar reported in AIR 1963 SC 1612. In that decision the Supreme Court expressed the following views :-
"It is now well settled that a public officer against whom disciplinary proceedings are intended to be taken is entitled to have two opportunities before disciplinary action is finally taken against him. An enquiry must be conducted according to the rules prescribed in that behalf and consistently with the requirements of natural justice. At this enquiry, the public officer concerned would be entitled to test the evidence adduced against him by cross-examination, where necessary, and to lead his own evidence. In other words, at this first stage of the proceedings he is entitled to have an opportunity to defend himself. When the enquiry is over and the enquiring officer submits his report, the dismissing authority has to consider the report and decide whether it agrees with the conclusions of the report or not. If the findings in the report are against the public officer and the dismissing authority agrees with the said finding, a stage is reached for giving another opportunity to the public officer to show why disciplinary action should not be taken against him. 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. The second opportunity enables the public officer to cover the whole ground and to plead that no case had been made out against him for taking any disciplinary action and then to urge that if he fails in substantiating his innocence, the action 3 proposed to be taken against him is either unduly severe or not called for."
He submitted further that it would appear from the impugned order the decision therein was based on material not considered in the inquiry inasmuch as the Disciplinary Authority relied on particularly the statement made by P.W. 3 in the preliminary inquiry which, according to the said Authority, though was a prosecution document but was not challenged by the delinquent in the inquiry. That led to the prima facie finding of guilt against the petitioner on both counts. Mr. Moitra submitted that purported evidence collected during investigation being the preliminary inquiry could not be treated to be evidence in the disciplinary proceedings. For this proposition he relied on the decision in the case of Roop Sing Negi vs. Punjab National Bank reported in (2009) 2 SCC 570 in which the said Court had expressed the following :-
"14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence."
Mr. Moitra further relied on the decision in the case of Nirmala J.
Jhala vs. State of Gujarat & Anr. reported in (2013) 4 SCC 301 in which the following was held :-
"52.2. The enquiry officer, the High Court on administrative side as well as on judicial side, committed a grave error in placing reliance on the statement of the complainant as well as of Shri C. 4 B. Gajjar, Advocate, recorded in a preliminary enquiry. The preliminary enquiry and its report loses significance/importance, once the regular enquiry is initiated by issuing charge-sheet to the delinquent. Thus, it was all in violation of the principles of natural justice.
52.3. The High Court erred in shifting the onus of proving various negative circumstances as referred to hereinabove, upon the appellant who was the delinquent in the enquiry."
Mr. Pattanayak, learned advocate appearing for the UOI submitted that the petitioner had efficacious alternative remedy by way of appeal as provided under Rule 28 of the Central Reserve Police Force Rules, 1955. He submitted that in any event the Disciplinary Authority was not bound by the findings of the Inquiry Officer and was entitled to come to his own finding. He relied on the decision in the case of Bank of India & Anr. vs. Degala Suryanarayana reported in (1999) 5 SCC 762 to submit that the Disciplinary Authority on receiving the report of the Inquiry Officer may or may not agree with the findings recorded by the latter. In this context the Supreme Court in that decision had expressed the following view :-
"10. The law is well settled. The disciplinary authority on receiving the report of the enquiry officer may or may not agree with the findings recorded by the latter. In case of disagreement, the disciplinary authority has to record the reasons for disagreement and then to record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry and report."
He then relied on the decision in the case of High Court of Judicature at Bombay vs. Shashikant S. Patil & Anr reported in (2000) 1 SCC 416. In paragraph 19 the Supreme Court had held as follows: -
"19. The reasoning of the High Court that when the Disciplinary Committee differed from the finding of the enquiry officer it is imperative to discuss the materials in detail and contest the conclusion of the enquiry officer, is quite unsound 5 and contrary to the established principles in administrative law. The Disciplinary Committee was neither an appellate nor a revisional body over the enquiry officer's report. It must be borne in mind that the enquiry is primarily intended to afford the delinquent officer a reasonable opportunity to meet the charges made against him and also to afford the punishing authority with the materials collected in such enquiry as well as the views expressed by the enquiry officer thereon. The findings of the enquiry officer are only his opinion on the materials, but such findings are not binding on the disciplinary authority as the decision-making authority is the punishing authority and, therefore, that authority can come to its own conclusion, of course bearing in mind the views expressed by the enquiry officer. But it is not necessary that the disciplinary authority should "discuss materials in detail and contest the conclusions of the enquiry officer".
Otherwise the position of the disciplinary authority would get relegated to a subordinate level."
The Disciplinary Authority in disagreeing with the Inquiry Officer and finding the petitioner guilty on both articles of charge based his disagreement and findings on essentially what is reproduced below :-
"No. 851180752 CT (Dfty) Rakesh Kumar of GC DPR (PW-03) in his statement deposed during the course of Preliminary Enquiry had categorically stated in the question No-9 that CT (Dfty) Rakesh Kumar along with CT(Dfty) Khagrendra Barik (delinquent ) went outside at 8.45 pm on 10/4/07. The pw-3 also stated that though he returned from outside, but the delinquent did not return as stated in the question No-
11. The PW-3 further stated that (Q/No-12) while both the PW-3 and the delinquent were taking liquor at out side campus, CT(Dfty) Khagendra Barik (Delinquent) had asked about the Essay and letter that was printed in the question paper meant for Written Test for recruitment of CT (GD) in CRPF and the PW-3 6 had obliged him with the reply. The copy of statement of PW-3 deposed during the course of preliminary enquiry which was earmarked as prosecution Document in the Departmental enquiry to substantiate the charges framed against the delinquent was inspected by the delinquent during the course of Departmental enquiry and he has not challenged the same on record. Whereas, PW-03 during the course DE had not stated what he had revealed during PE. But the direct evidence of PW-3 as well as the circumstantial evidence and preponderance of probabilities of his statement deposed during the Preliminary Enquiry which has not been challenged on record during the Departmental Enquiry by the delinquent in Article-I...."
It is apparent from the reasons given by the Disciplinary Authority that what weighed with him was the statement of P.W. 3 made in the preliminary inquiry. In relying on material in the preliminary enquiry to arrive at a finding, the Disciplinary Authority could at best do so for the purpose of directing a departmental inquiry. In Nirmala J. Jhala (supra) the Supreme Court had made it clear that the preliminary inquiry and its report loses significance/importance once the regular inquiry is initiated by issuing charge sheet to the delinquent. Reliance, therefore, placed by the Disciplinary Authority on material which was part of the preliminary report, thus, was clearly wrong for the purpose of finding the petitioner guilty of the charges in disagreement. In Bank of India & Anr. (supra) the Supreme Court had said the Disciplinary Authority could record the reasons for disagreement and then to record his own finding if the evidence available on record be sufficient for such exercise or else to remit the case to the Inquiry Officer for further inquiry and report. This when read with the view expressed in Roop Sing Negi (supra) that purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding and mere tender of the document by management did not prove contents thereof making the impugned order unsustainable becomes the law applicable in this case. There is no dispute that the 7 Disciplinary Authority may or may not agree with the findings of the Inquiry Officer but he must give good reasons for deciding one way or the other and in case he proceeds to find otherwise, it must be on material that was considered in the inquiry proceedings. The Disciplinary Authority does not appear to have done so in making the impugned order. That being so it is not necessary for this court to go into the question whether or not the petitioner, in the facts and circumstances, was given the two stages of defence to be given as held in Bimal Kumar (supra).
For the reasons aforesaid, the impugned order is set aside meaning thereby that the enquiry report must be revisited by the Disciplinary Authority. The writ petition succeeds.
Urgent photostat certified copy of this order, if applied for, be given to the learned counsel for the parties on usual undertakings.
(Arindam Sinha, J.) 8