Calcutta High Court (Appellete Side)
Dilip Kumar Das vs The West Bengal State Electricity Board ... on 8 March, 2018
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Mr. Justice Subrata Talukdar
W.P. 18944(W) of 2005
Dilip Kumar Das
-Vs-
The West Bengal State Electricity Board & Ors.
For the Petitioner : Mr. Sambhunath De
Mr. Soumen Karati
For the W.B.S.E.D.C.L. : Mr. Sumit Panja
Mr. Sujit Sankar Koley
Heard on : 09/11/2017
Judgement on : 08/03/2018
Subrata Talukdar, J.:
In this petition, the petitioner challenges the order of dismissal dated 20th April, 2005 and, all orders connected thereto in the impugned departmental proceeding.
It is relevant to first note that this writ petition is of the year 2005 and, was placed for consideration before this Court under the heading 'Old Writ Matters' in 2017. Thereafter, considering the age of the matter, learned counsel for the respondents/West Bengal State Electricity Development Corporation Limited (for short the Corporation) was granted the opportunity to consult the original records of the departmental proceeding (for short D.P ). The original records were consulted by learned counsel for the respondents/the Corporation, produced and relied upon in court.
Arguments were advanced by the learned counsel for the respondents/the Corporation on the basis of the original records. Considering the prayer for Certiorari in the nature of a direction upon the respondents/the Corporation to certify and transmit the records of the D.P for the purpose of quashing the same, this Court, with the consent of the parties, permitted production of the original records of the D.P without delaying the hearing further by awaiting exchange of affidavits.
Mr. De, learned counsel for the petitioner, takes this Court to the essential events leading to the initiation of the D.P. The particular incident is of the year 1998.
On 10th July, 1998, the petitioner was alleged to have taken delivery of store materials of the Kalyani Division of the respondents/the Corporation as assigned to the Aranghata Group Electrical Supply (for short AGES) within the Kalyani Division. The materials were loaded onto a truck bearing the Registration No.WGE 2372 also operating under the Kalyani Division of the respondents/ the Corporation.
It further transpires from the record that on 11th July, 1998, the vehicle, after earlier completing the delivery of materials at Ranaghat Sub Division, proceeded towards Krishnanagar instead of Aranghata on the instruction of the writ petitioner. The truck was noticed and intercepted by the Additional Engineer, Kalyani Division and the Superintending Engineer, Nadia Circle of the respondents/ the Corporation, who were going to Krishnanagar on official work. The petitioner, on being questioned, could not give a satisfactory reply as to why the truck loaded with stores meant for Aranghata had been diverted from its Kalyani operational jurisdiction towards Krishnanagar. Thereafter, the store materials were dealt with in accordance with law and, necessary information/complaint was also lodged with the local police. It was further found on physical verification that store materials amounting to a total value of Rs.84,730/- were found to be short from the store supplies of Aranghata Division. The shortage in the quantum of materials could not be again satisfactorily explained by the writ petitioner. The writ petitioner was thereafter placed under suspension on 26th September, 1998 and charge sheet in connection with the D.P. was issued on 16th February, 1999.
Mr.De submits that the inquiry stands vitiated by non- observance of the principles of natural justice. Mr.De also argues that the petitioner had a bona fide reason for transporting the materials to the custody of the contractor himself since, it was an admitted position then that there have occurred a series of thefts of store materials at Aranghata.
Taking this Court to the several documents connected to the D.P., learned counsel for the petitioner submits that it is not denied by the respondents/the Corporation that there was no practice of permitting materials to be moved out of Aranghata to the stores of the contractors themselves in order to protect the materials from theft. Therefore, the petitioner upon obtaining the delivery of the store materials decided, instead of depositing the materials at Aranghata, to deliver the materials at the godown of the contractor himself. Mr. De submits that there is no evidence of any personal gain made by the petitioner on account of his intention to transfer the materials to the godown of the contractor himself. The intention was purely to protect and preserve the store materials from theft and, therefore no loss has been caused to the respondents/the Corporation.
The next submission of Mr. De is that the inquiry has been deliberately delayed by changing the Inquiry Officer (IO) repeatedly. There have been at least three changes collectively of the IO and of the Presenting Officer (PO). It is submitted that the IO who finally submitted his findings, did not hear the writ petitioner. Therefore, there has occurred a complete violation of the principles of natural justice. It was incumbent upon the last IO to extend an opportunity of hearing to the writ petitioner.
Mr. De points out that the petitioner approached this Hon'ble Court on at least two earlier occasions by way of two writ petitions. In both the writ petitions the petitioner was granted the liberty to submit his statement of defence/representation before the Inquiring Authority (IA) in the DP. The Inquiring Authority (IA) in the DP was directed to attend to the representation/statement of defence and pass necessary orders.
The directions of this Court have not been followed in their true letter and spirit. The petitioner has been denied access to documents in the D.P as well as suffered from non-extension of an opportunity of personal hearing. Mr. De therefore prays for quashing of the D.P culminating in the order of dismissal.
Appearing for the respondents/the Corporation, Mr. Panja, assisted by Mr. Sujit Sankar Koley, learned counsel, submits that there has been no denial of natural justice. Taking this Court to a correspondence dated 24th August, 2000 addressed to the petitioner by the respondents/the Corporation, learned counsel points out that the petitioner is responsible for taking several dates/adjournments thereby preventing the enquiry from reaching its logical conclusion. Mr. Panja submits that the letter would show that the petitioner is now trying to illegally shift the onus of the delay on the respondents/the Corporation by alleging changes in the I.O. The events would however show that in view of the long adjournments taken by the writ petitioner it became necessary for the respondents/the Corporation to complete the enquiry with the assistance of the available officers.
Learned counsel for the respondents/the Corporation also points out that following the settled principles of service jurisprudence awaiting completion of the D.P, the petitioner was allowed to rejoin service by revoking his order of suspension on 16th July, 2001. On revocation of suspension, the petitioner reported for and continued with his duties till the final order of dismissal was issued against him. It was clearly stated in the order revoking the suspension that the period of suspension spent by the petitioner shall be guided by the ultimate result of the D.P. Mr. Panja further submits that the petitioner made no complaint regarding his suspension and its subsequent revocation. The petitioner also participated in the D.P. The participation in the D.P has resulted in waiver of any cause which the petitioner is now seeking to ventilate through this writ petition by way of an afterthought.
It is submitted by learned counsel for the respondents/the Corporation that the petitioner was also served with a second show cause notice on 8th August, 2003. The second show cause notice was responded to by the petitioner vide his letter dated 20th August, 2003. By the letter of 20th August, 2003, the petitioner requested the Disciplinary Authority to consider his representation connected to the findings of the I.O. Such consideration was requested on the strength of the order of the Hon'ble Court dated 21st July, 2003 in WP No. 8328(W) of 2003.
Mr. Panja therefore argues that at no stage whatsoever can it be alleged that the respondents/the Corporation acted against the settled principles of service jurisprudence or, violated the principles of natural justice or, acted in contravention of the solemn orders of the Court as issued from time to time.
Having heard the parties and considering the materials placed, this Court arrives at the following findings:-
(A) Dealing with the first point raised by Mr.De that the intention of the petitioner was to place the store materials meant for Aranghata in the safe custody of the contractor himself since there have been repeated instances of theft of materials at Aranghata as reflected in the record of evidence taken in the D.P, this Court is of the view that no materials are forthcoming from the writ petitioner to support the fact that having regard to the recurrence of theft the petitioner made any attempt or, took steps to bring the thefts to the notice of his higher authority or, even the police authority at any point of time earlier.
(B) Following the findings at (A) above, this Court must presume against the petitioner on the ground that it would be the normal course of action on the part of an employee as claimed by the petitioner that, instead of notifying either his higher authority or, the police authority, the petitioner was justified in taking the extraordinary step of diverting the store materials to the contractor.
(C) To the further mind of this Court, the presumption against the petitioner's claim to innocence deepens with the view that the petitioner took the materials beyond jurisdiction and, would have deposited the materials with the contractor, if not intercepted, without producing a scrap of material authorizing him to so act.
(D) The point as discussed at (C) above, becomes relevant from the further point of view that since admittedly the departmental truck with the store materials was intercepted beyond the operational jurisdictional area under which the petitioner is required to function, the crossover of jurisdiction without authorization makes the plea of protection from theft a pretended argument to shield the petitioner from culpability.
(E) Next, coming to the argument that frequent changes in the I.O and the P.O has resulted in violation of natural justice, immediately finds an answer from the contents of the communication dated 24th August, 2000. The communication dated 24th August, 2000 by the respondents/the Corporation to the petitioner illustratively requires to be reproduced in full:-
"West Bengal State Electricity Board Corporate office Memo. No. DE/AKU/32/ dated 24.08.2000 To Shri Dilip Kumar Das, Assistant (Stores) (Under suspension) Aranghata Gr. E/s, W.B.S.E. Board.
Sub: Domestic enquiry into the charges levelled against you.
Dear Sir, You are aware that under Office memo No. AS/V- 1313/P&AO-iii/1574 dated 1.9.1999 of Disciplinary Authority & Secretary, Shri A.K. Bhattacherjee, IAS (Retd.) has been appointed Enquiry Officer to enquire into the charges levelled against you vide office memo no. AS/V-1313/S-iii/281 dated 16.02.99. It appears that the Ld. Enquiry Officer fixed 6.10.99, 29.11.99, 5.1.2000, 28.1.2000, 17.4.2000, 24.5.2000, 19.6.2000, 14.7.2000 & 21.8.2000 for conducting the domestic enquire. But on the plea of different reasons adduced by you, the enquiry could no be conduced on the aforesaid dates and for this reasons there is no progress in the domestic enquiry. The enquiry on 21.8.2000 could not be held due to your absence.
However, the next date of enquiry has been fixed on 18.9.2000 at 10.30 A.M. As the matter has already been unduly delayed, you are advised to attend the enquiry positively on 18.9.2000 along with your Defence Assistant failing which the matter will be placed before the Disciplinary Authority and Secretary for taking further Disciplinary action against you.
Yours faithfully, Sd/-
(D. Mukherjee) Officer-on-Special-Duty) (Vig.)"
(F) Therefore, from the communication dated 24th August, 2000 (supra), it is evident that the petitioner did not cooperate in the inquiry between 06.10.1999 and 24.08.2000, thereby necessitating the correspondence dated 24.08.2000 by fixing the next date of inquiry on 18th September, 2000. Nothing on record has been demonstrated by the petitioner to show that the contents of the communication dated 24th August, 2000 (supra) have been replied to by him with cogent reasons denying the stand taken by the respondents/the Corporation. (G) This Court must also at this stage observe that the communication dated 24th August, 2000 appears to contain sufficient reasons warranting the respondents/the Corporation to complete the enquiry with the officers available by deputing fresh I.Os capable of completing the task. Accordingly, this Court finds no deviation and/or violation of natural justice on the part of the respondents/the Corporation on such score.
(H) This Court further finds that the ultimate findings in the D.P culminating in the order of dismissal dated 20th April, 2005 are also in sync with the solemn directions of the Hon'ble Court as passed from time to time in the writ petitions filed by the petitioner permitting him to ventilate his grievance before the Disciplinary Authority. Accordingly, this Court must observe that the principles of natural justice cannot be read as a straight- jacket formula.
(I) Finally, before parting with this discussion, this Court must observe that it is trite law that the Disciplinary Authority in the D.P. is entitled to consider the facts first and come to a reasonable/plausible conclusion. In the facts of this case, considering the gravity of the misconduct, this Court does not find that the Disciplinary Authority acted with any malice or mala fides. No particulars of malice or mala fides have been either pleaded.
(J) It is also trite that the writ court will not assume the jurisdiction of the Disciplinary Authority and substitute its views taken in the D.P. unless palpable cause for injustice is made out. Useful reference may be made with regard to the above point in the observations as reported in 1996 (7) SCC 509 in the matter of State of T.N. & Anr. vs. S. Subramaniam at Paragraph 5. Paragraph 5 may be usefully reproduced below:-
"5. The only question is: Whether the Tribunal was right in its conclusion to appreciate the evidence and to reach its own finding that the charge has not been proved. The Tribunal is not a court of appeal. The power of judicial review of the High Court under Article 226 of the Constitution of India was taken away by the power under Article 323-A and invested the same in the Tribunal by Central Administrative Tribunals Act. It is settled law that the Tribunal has only power of judicial review of the administrative action of the appellant on complaints relating to service conditions of employees. It is the exclusive domain of the disciplinary authority to consider the evidence on record and to record findings whether the charge has been proved or not. It is equally settled law that technical rules of evidence have no application for the disciplinary proceedings and the authority is to consider the material on record. In judicial review, it is settled law that the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessary correct in the view of the Court or Tribunal. When the conclusion reached by the authority is based on evidence, Tribunal is devoid of power to reappreciate the evidence and would (sic) come to its own conclusion on the proof of the charge. The only consideration the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. This is consistent view of this Court vide B.C. Chaturvedi vs. Union of India [JT 1995 (8) SC 65], State of Tamil Nadu vs. T.V. Venugopalan [(1994) 6 SCC 302 para 7], Union of India vs. Upendra Singh [(1994) 3 SCC 357 at para 6], Government of Tamil Nadu & Anr. vs. A. Rajapandian [(1995) 1 SCC 216 para 4] and Union of India vs. B.S. Chaturvedi [(1995) 6 SCC 749 at 759-60]. In view of the settled legal position, the Tribunal has committed serious error of law in appreciation of the evidence and-in coming to its own conclusion that the charge had not been proved. Thus we hold that the view of the Tribunal is ex facie illegal. The order is accordingly set aside. OA/TP/WP stand dismissed."
In the backdrop of the above discussion, the writ petition fails. WP 18944(W) of 2005 stands dismissed.
There will be, however, no order as to costs.
Let the original records bearing File No. AS/V-1313 DE/BDR/12 containing two files - (1) E.O. File; and (2) Evidence File, be returned to Ld. Counsel for WBSEDCL on proper acknowledgement of receipt. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.
(Subrata Talukdar, J.)