Calcutta High Court (Appellete Side)
Balaram Basak vs Union Of India & Ors on 9 April, 2009
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice S.P. Talukdar
W.P. No. 6850 (W) of 2007
Balaram Basak
Vs.
Union of India & Ors.
For the Petitioner: Mr. Soumen Sen,
Mr. Soumya Majumdar,
Mr. Prithwiraj Sinha,
Mr. S. M. Obaidullah.
For the respondent Nos. 1 & 2 : Mr. P. K. Tarafdar,
Mr. Kaushik Kanti Maiti.
For the respondent Nos. 3 to 5 : Mr. Ravi Kapur,
Mr. Mohit Gupta.
Judgment on : 09.04.2009.
S.P. Talukdar, J.: Challenging orders dated 5th May, 2006 and 26th March, 2007 passed by the Disciplinary Authority, the petitioner approached this Court with an application under Article 226 of the Constitution.
Grievances of the petitioner, as ventilated in the instant application, may briefly be stated as follows:-
Petitioner joined in the Marine Products Export Development Authority as Assistant Director (Farm Engineer) in 1981. In May, 1987, he was promoted to the post of Deputy Director. Orissa Shrimp Seed Production and Research Centre was established under Marine Products Export Development Authority Act in 1987. On 13th May, 1994, the petitioner was sent there on deputation as Project Director till 28th September, 1996. The petitioner was called back to the Marine Products Export Development Authority at its office at Vallarpadam, Kochi. On 20th March, 1995, OSSPARC invited offers for supply of Artemia Cysts from five companies. On 28th September, 1996, the petitioner on being asked relinquished his post as Project Director. He received a show cause notice on 20th April, 1998 from the Director, Chief Vigilance Officer wherein it was alleged that OSSPARC had incurred loss on import of Artemia Cysts during the year 1995-96 and 1996-97 due to bulk purchase of poor quality Cysts. He filed a writ application before the Hon'ble High Court, Kerala on 6th July, 1998. In pursuant to an order passed by the Hon'ble Court, some of the documents were made available to the petitioner. On 15.2.1999, the petitioner replied to the said show cause notice dated 20.4.1998. On 21st August, 2000, the respondent authorities issued a charge sheet to the petitioner who replied to the same on 5th of October, 2000.
The respondent authorities, however, appointed an enquiry officer and proceeded with the disciplinary proceeding. On 6th of March, 2003, the enquiry officer submitted report to the respondent authority. On 2nd April, 2004, the disciplinary authority issued a second show cause notice. On 14th May, 2004, the petitioner replied to the same. The disciplinary authority, thereafter, on 5th of May, 2006 passed the impugned order thereby imposing penalty of reduction in rank from the current post of Deputy Director to the lower post of Assistant Director. This order was received on 12th of May, 2006. It was challenged by filing a writ application. Operation of the said order was stayed by the High Court by order dated 30th June, 2006. On 29.11.2006, the writ application was disposed of with direction upon the Appellate Authority to take up and dispose of the appeal within a period of four months from the date of receipt of the order. By order dated 26th March, 2007, the Appellate Authority dismissed the appeal. On 27th of March, 2007, an order directing recovery of the excess amount of salary paid to the petitioner in the cadre of Deputy Director was passed.
The claim of the petitioner had been strongly challenged by the respondent authorities. Respondent No. 2 by filing Affidavit-in-Opposition raised dispute regarding maintainability of the present application and also regarding territorial jurisdiction of this Court to entertain the same.
Such respondent No. 2 stated that the writ petitioner joined the service of the OSSPARC on 4th May, 1994 as Project Director on deputation basis and continued there as Project Director during the period from 13.5.1994 to 28.9.1996. It was found at the time of budged estimates of OSSPARC for the year 1997-1998 that it had sustained considerable pecuniary loss through bulk purchase of live imported feed (Artemia Cysts) during the period 1994-1995, 1995-1996. The President of OSSPARC ordered an investigation in this regard. On investigation, it was found prima facie that the writ petitioner as Project Director during the relevant period was responsible for the loss. A Project Director is primarily responsible for achieving the target production of Shrimp Seeds and marking of seeds and all the managerial aspects involving smooth operation of the hatchery including day-to-day operation of hatchery and implementation of project task. In November, 1994, the writ petitioner approved a proposal for purchasing of 1200 Kg. of Artemia (Live Shrimp Feed) without proper assessment of requirement and considering the opening stock and consumption etc. About 397.704 Kg. at a cost of Rs. 2.59 lakh of Artemia was, thus, purchased in December, 1994. Though requirement was indicated as 1200 Kg. orders were placed for the balance 806.304 Kg. in April, 1995 and actual purchase effected in June, 1995 at a cost of Rs. 22.81 lakh. The petitioner did not follow the procedure nor did he ascertain the names and addresses of the important suppliers including quality parameters in the letters of inviting offers. On 2nd November, 1994, offers were called from two suppliers and after receiving those offers, further offers were sought from three more suppliers. On 20.3.1995, more offers were included from different suppliers. Finally, the order was placed in favour of M/s. Argent Chemical Laboratories. The order was issued arbitrarily and without considering the previous quotations received by OSSPARC. While placing such order, the petitioner did not indicate the hatch out percentage, expiry date etc. This was a serious lapse because the earlier tenders were rejected on the ground of low hatch out rates.
In June 1995, 806 Kg. of Artemia was supplied by M/s. Argent Chemical Laboratories. In the said cysts, it was mentioned that the cysts would expire on April, 1996. The writ petitioner failed to assess the requirement of Artemia during the period from his delivery till the date of expiry and failed to take action to consume or dispose of the said Artemia before expiry date. Only 143.464 Kg. out of 806 Kg. was consumed before the expiry date and the balance of 662.840 Kg. was later declared as scrap. It was also found that the quality of Artemia Cysts as supplied was sub-standard. The testing of the quality of the product was not done in time and carried out only after 10 months. While assessing the quantity to be purchased, the petitioner did not take into account the opening stock of Artemia which was about 910 Kg. on 1.4.1994 and 666 Kg. as on 1st September, 1994. The actual quantity that should have been purchased was 200 Kg. only considering the opening stock of around 666 Kg. in September, 1994. However, 1200 Kg. was ordered to be purchased. The quotations were invited in an irregular manner and those were dealt with in identical fashion. Quality details such as hatch out percentage, expiry period etc. were not mentioned in the letters inviting the offers. The date, by which offers were to be received, was also not mentioned.
Such respondent categorically denied that the order passed by the Appellate Authority suffers from non-application of mind. It was further stated that the disciplinary authority after considering the evidence and all other documentary proof came to a different finding from that arrived at by the inquiry officer. It was also denied that there had been no wilful negligence on the part of the writ petitioner or that action taken by him could at best be said to suffer from error of judgment. The petitioner had shown gross negligence and/or dereliction of duty during his tenure as Project Director on deputation to OSSPARC. As Project Director, the petitioner was duty bound to check and assess the opening balance and/or make a subjective/independent determination of Artemia Cysts required without blindly relying on the alleged assessment of other officials. Such respondent emphatically denied that the records of the case care lying within the jurisdiction of this Court. It will be evident from the cause title that the Appellate Authority has its office at New Delhi outside the jurisdiction of this Court. The respondent No. 6 is admittedly outside the jurisdiction of this Court. No documents relating to and/or pertaining to the petitioner in respect of the disciplinary proceedings are lying within the jurisdiction of this Court. Such records are lying in the office of respondent No. 5 and respondent No. 6 at Kochi and Orissa respectively. Thus, this Court does not have the jurisdiction to entertain the present application.
In the affidavits-in-opposition filed on behalf of the respondents, it had been categorically claimed that respondent No. 4 is not the Secretary of respondent No. 5 and he had been wrongly impleaded in these proceedings.
Affidavit-in-Opposition was filed on behalf of the respondent Nos. 3 and 5 and the said authorities clearly echoed the stand of respondent No. 2 in such Affidavit-in- Opposition. It had been claimed that the issues raised by the writ petitioner are not justiciable. Such respondents alleged that the writ petitioner by order dated 27th March, 2007 had been reverted to the post of Assistant Director (Aquaculture Engineer) and it was duly communicated to him. Thus, he was not Deputy Director (Aquaculture) on the date of filing of the application. The order dated 26th March, 2007 passed by the Appellate Authority is well reasoned and the petitioner was given sufficient opportunity to place its stand before the said authority. Such respondents denied that cogent reason exists in the report of the Disciplinary Authority in not accepting the findings of the enquiry officer. The petitioner was rightly held guilty of failure to discharge his duties as Project Director of OSSPARC. The role of a Project Director, as the petitioner was from 13th May, 1994 to 28th September, 1996, involved the duties, inter alia, being primarily responsible for achieving the targeted production of shrimp seeds and marketing of seeds and all the managerial aspects involving smooth operation of the hatchery including day-to-day operations of hatchery and implementation of project tasks. The petitioner showed gross negligence and/or dereliction of duties during his tenure as Project Director on deputation to OSSPARC. The respondents denied that the answering respondents after receipt of the reply forwarded by the petitioner proceeded with a closed mind in issuing the charge sheet. Steps were initiated after sufficient enquiry and on consideration of relevant documents on record. The respondents further claimed that as Project Director, the petitioner should have and ought to have taken the decision to place orders for Artemia Cysts only after due appreciation of the relevant and material facts. The petitioner as Project Director was responsible for sanction, purchase and performance of Artemia Cysts at OSSPARC. Petitioner while sanctioning the purchase of Artemia Cysts for the relevant period failed and neglected to properly assess the quantify of Artemia Cysts required. The petitioner failed to consider the opening stock, the likely consumption, the quality of Artemia Cysts being ordered, the hatch out percentage and the expiry date of the Cysts.
The excuse of the petitioner to depend on the alleged records of concerned official is distorted and mala fide. It was the duty of the petitioner to satisfy himself of the quantity of the opening stock before placing the order for additional quantity of Artemia Cysts. It was wrong on the part of the petitioner not to place reliance to the data of the previous years and to rely solely on the alleged scientific stipulation in deciding quantity of Artemia Cysts. The petitioner in course of enquiry could not produce any document to support the so called scientific stipulation that approximately 15 - 18 Kgs. of Artemia Cysts is required to produce one million seeds as alleged. Thus, apart from raising dispute regarding the factual details, the respondents categorically pointed out that the impugned order of the Appellate Authority does not suffer from any impropriety or illegality justifying interference in judicial review.
The Chairman and Disciplinary Authority, the Marine Products Export Development Authority (MPEDA) vide Memo No. 6/40/Vig/2000/HO informed the petitioner of his proposal to hold an enquiry under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. In response to the same, the petitioner submitted his written statement of defence on 5.10.2000 denying all the charges given in the articles of charges along with Memo dated 21.8.2000. Thereafter, by office order dated 29.12.2000, Mr. G. Santhana Krishnan was appointed as the enquiry officer and Mr. K. Premachandran was appointed as the presenting officer. Notice was served by the enquiry officer informing the charged officer by letter dated 5th March, 2001 that the preliminary hearing would be held on 23rd March, 2001. This was duly communicated to the petitioner who acknowledged the same by letter dated 15th March, 2001. The charged officer pleaded not guilty to the charges. He clearly indicated that no additional documents were required to be submitted and not defence witnesses would be cited for examination. He also declined to bring any 'defence assistance'.
The following charges were framed against the writ petitioner :-
"(1) Shri B. Basak, Dy. Director, MPEDA was functioning as Project Director of OSSPARC, Gopalpur-on-Sea in Orissa on deputation during the period from 13.5.1994 to
28. 9.1998. In November 1994, he approved a proposal (D-1) for purchase of 1200 kg. of Artemia (Live Shrimp Feed) from abroad without a proper assessment of the requirement i.e. without considering the opening stock, the likely consumption, etc. (2) In pursuance of the above decision, around 397.704 kg. at a cost of Rs.2,59 lakh were purchased in December 1994 (D-2). Although the 1200 kg. was indicated as the quantity required for the 'winter 94-95 and summer 95-96' production of shrimp seeds (i.e. till, say, August, '95), (D-3), orders were placed for the balance 806.304 kg. in April 1995 and actual purchase (of 806 kg.) effected in June 1995 at a cost of Rs. 22.81 lakh. No reassessment of the requirement was done before purchasing this 806 kg. The quantity to be purchased was also not reduced considering the fact that hardly few months remained of the period for which the purchase was being effected. Shri B. Basak, as the officer who took the decision was responsible for this.
(3) For making such a large purchase (totaling Rs. 22.81 lakh), Shri Basak did not follow the procedures for purchase such as ascertaining the names of and addressing all the important supplies, specifically including the quality parameters in the letters inviting offers, fixing a time limit for receipt of quotations, analyzing the various offers with reference to the quality parameters, etc. (4) In fact, it is seen that on 2.11.1994 offers were called for from two supplies and after receiving these offers further offers were called for from three more suppliers.
Later, on 20.3.1995, more offers were called for from different suppliers. Finally, the order was placed on M/s. Argent Chemical Laboratories arbitrarily without considering all the previous quotations received. Shri Basak being the officer who took these decisions is responsible for this.
(5) While placing orders for 806 Kg. of artemia with M/s. Argent Chemical Laboratories, USA on April 1995 for Rs. 22.81 lakh, (D-4), the hatch out percentage, expiry date, etc. was not mentioned. This is considered a serious lapse as earlier tenders (for considerably lower price) are seen rejected on the ground of low hatch out rate.
(6) In the instruction to the bank for opening L/C for the purchase of 806 kg. of artemia, (D-5), it was clearly prescribed as one of the conditions that for effecting the payment to the supplier, 'the test certificate/inspection certificate, current dated, issued by supplier specifying hatching rate, etc.' should be insisted. However, the supplier M/s. Argent Chemical Laboratories only produced a general test certificate without indicating the hatch out percentage, (D-6). Shri Basak failed to get a certificate from the supplier specifying the hatch out rate. etc. He also failed to take up this issue with the bank.
(7) As soon as the 806 kg. was received, its quality including hatch out rate should have been assessed and the period of expiry should have been verified. Shri B. Basak failed to have these done.
(8) When the 806 kg. of Artemia from M/s. Argent Chemical Laboratories was supplied in June 1995 it was clearly indicated that the cysts would expire in April 1996, (D-
7), Shri Basak failed to assess the requirement of Artemia during the period from its delivery till the date of expiry and to take action to consumer or dispose of otherwise the said Artemia before the expiry date. Eventually, only 143.484 kg. out of the 806 kg. were used before the expiry date, (D-8). The balance 662.840 kg. costing Rs. 18,44,593 was later declared as scrap. Shri Basak is responsible for this loss.
(9) Even during the use of the Artemia from June 1995 it has been reported by the Hatchery Manager that the Artemia is giving very poor hatching results, (D-9). No action was taken by Shri Basak to make a claim from the supplier. The matter was finally taken up with a so called agent of the supplier, only in April '96 by which time the expiry date was already over. (D-10).
Through the above said acts Shri Basak is responsible for the loss of Rs.18,44,593 which represents the value of the Artemia cyst written off as scrap.
By the above said acts of omission/commission on the part of Shri Basak, he has caused loss to OSSPARC, a society under MPEDA, and he has conducted himself in a manner unbecoming of an officer of the Authority, thereby violating the provisions contained in Rule 3(1) (i), (ii) and (iii) of the CCS (Conduct) Rules, 1964.
(K. JOSE Cyriac) Chairman & Disciplinary Authority"
The enquiry officer concluded by holding as follows :-
"a) Out of 9 charges framed against the Charged Officer only 2 charges can be proved evidently and the other charges cannot be challenged based on the element of doubt and the circumstance that prevailed at that time.
b) The charges that were proved are No. 2 and No. 6.
(c) The Charge No. 2 is well established that the Charged Officer absolutely
failed to reassess the quantity of the artemia cyst required for the rest of the operative season and targeted hatchery production of the seeds; in spite of fully knowing the facts that
(i) there was bulk cancellation of orders due to disease problem that was experienced for the first time in the country and also (ii) the suggested corrective measure of MPEDA declaring Crop Holiday. If the Charged Officer applied his mind with bit of analysis he could have totally avoided placing the 2nd bulk order of 800 kgs. of artemia cyst, which resulted in huge loss to OSSPARC.
d) The Charge No. 6 is also proved beyond doubt that the Charged Officer failed to verity the test certificate and other documents submitted by the supplier whether they are in agreement with the conditions stipulated in the LC."
It appears that by Memo dated 2nd April, 2004, the Chairman, MPEDA and Disciplinary Authority held that after going through the enquiry report and other relevant documents in the disciplinary case, he found that the enquiry officer did not consider several points and did not give clear findings on some of the documents levelled against the charged officer. The disciplinary authority, as such, disagreed with the report of the enquiry officer. The disciplinary authority for the reasons as assigned while concurring with the findings of the enquiry officer as regards charges 2 and 6 which are proved, disagreed with the findings in respect of charges 1, 3, 4, 5, 7, 8 and 9. Thereafter, by order dated 2nd April, 2004, the disciplinary authority gave the charged officer an opportunity to represent against the findings of the disciplinary authority on the enquiry officer.
The disciplinary authority after analyzing all relevant facts and materials and taking into consideration of the evidence on record concluded with the following findings:-
"I find that the charges 1 and 2 are proved beyond doubt as reported by the IO. In respect of charges 1, 3, 4, 7, 8 and 9, the conclusion of the IO was that the CO was not completely/wholly responsible for these charges. The conclusion of the IO was that the CO alone was not responsible for these charges. This only means that the CO was, indeed, responsible along with somebody else for the charges. In the memorandum of disagreement relating to charges 1, 3, 4, 7, 8 and 9, this has been clearly brought out. Therefore, I find that charges 1, 3, 4, 7, 8 and 9 are also proved to the extent that CO has to share responsibility for what happened. In respect of charge No. 5 the IO has reported that the charge has not been proved. I have analyzed the finding of the IO taking into consideration all the facts and circumstances, evidences and material on record and I find that the IO's reference to the product catalogue could not be sustained as no product catalogue of M/s. Argent Chemical Laboratories could be found in the files. The CO had also not produced a copy of the same during inquiry. The evidence on record clearly showed that lower quotations from others were rejected on the ground that the hatching out rate was only 55%. But while orders were placed on M/s. Argent Chemicals at a higher price, no mention was made regarding the hatch-out rate. Finally 662.840 kg. were wasted as scrap. I cannot absolve the CO of the responsibility of this grave dereliction of his duty. In view of this, I find that the charge No. 5 is also proved to the extent that the charged officer has to share responsibility for content of the charge. Therefore, having considered and analyzed all the facts and circumstances of the case, I find that there were gross negligence and serious dereliction of duties with questionable motives on the part of the CO. As such, he is also found to be individually and collectively responsible for the pecuniary loss as mentioned in the article of charge No. 8.
From the above omissions or commissions, the CO omissions or commissions, the CO violated the provisions of rule 3(1)(i), (ii) and (iii) of the CCS Conduct Rules, 1964 as stated in the articles of charge."
The Disciplinary Authority thereafter passed the following order :-
"In view of the facts and circumstances as mentioned above, I, hereby, impose on Shri Balaram Basak, the Charged Officer, the penalty of reduction in rank from the current post of Dy. Director held by him in the grade of S-19 in time scale Rs.10,000-325-15200 to the lower post of Assistant Director in grade of S-15 in time scale Rs.8000-275-13500 with effect from 01.07.2006 till the date of his retirement. His pay will be fixed in the reduced scale of pay of Rs. 8000-275-13500 with effect from 01.07.2006 and he will earn normal increments in the scale of pay of Rs. 8000-275-13500 in the month of July every year.
As regards the pecuniary loss of Rs. 18,44,593/- caused by mismanagement, it is proved that Shri Basak is individually and collectively responsible for the same. However, separate orders for recovery of the amount will be issued later.
This order shall come into force with effect from 01.07.2006..............."
By order dated 26th March, 2007, the Appellate Authority dismissed the appeal and upheld the order of the Disciplinary Authority.
Two orders being order dated 5th May, 2006 and order dated 26th March, 2007 passed by the Disciplinary Authority being Annexures-'P-7' and 'P-8' respectively are under challenge in the present application. It was submitted that there could be no reason whatsoever for entertaining the present writ application since the orders were passed by the authorities having their offices outside the territorial jurisdiction of this Court. It was further submitted that no part of the cause of action could be said to be within the territorial jurisdiction of this Court. Both the respondent Nos. 3 and 4 have their offices at Kochi and respondent No. 5 has nothing to do. There is only one sub-regional office at Loudon Street, Kolkata which cannot confer jurisdiction. It appears from the materials on record that the charge sheet was issued from Kochi and the reply was sent by the writ petitioner from Vallarpadam.
Article 226 (2) reads as follows:-
"(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories."
The expression 'cause of action' means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. Therefore, in determining the objection of lack of territorial jurisdiction, the Court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. Thus, the question of territorial jurisdiction must be decided on the facts pleaded in the petition, the truth or otherwise of the averments made in the petition being immaterial.
It is, however, settled position of law that if on the averments in the petition, as they are, no part of the cause of action arose within the jurisdiction of a High Court, that High Court cannot assume territorial jurisdiction on the ground of residence of the petitioner or the like.
In this context, reference was made to the decision of the Apex Court in the case of Kusum Ingots & Alloys Ltd. Vs. Union of India & Anr., as reported in (2004) 6 SCC
254. The Apex Court in the said case held that when an order is passed by an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places.
In this context, reference was also made to the doctrine of forum convenience. In the present case, as submitted on behalf of the petitioner, the petitioner was served in his office at Loudon Street, Kolkata. It was also submitted that the first writ application having been entertained, there could be very little justification for raising grievance in that regard. It is also mentioned that as a consequence of the order under challenge, the petitioner is to suffer and this also need be taken into consideration. To this, it was submitted that such impact theory has no relevance nor there is any averment in the writ petition to that effect. It was contended that consent of the parties cannot confer jurisdiction.
In the case between Alchemist Limited & Anr. Vs. State Bank of Sikkim & Ors., as reported in AIR 2007 SC 1812, it was held that for the purpose of deciding whether facts averred by the petitioner appellant would or would not constitute a part of cause of action, one has to consider whether such fact constitutes a material, essential or integral part of the cause of action. It is, no doubt, true that even if a small fraction of the cause of action arises within the jurisdiction of the Court, the Court would have territorial jurisdiction to entertain the suit/petition. Nevertheless, it must be a 'part of cause of action', nothing less than that.
It was categorically submitted that mere fact that the writ petitioner received the order in Kolkata is of little consequence. It appears from the cause title that respondent No. 5 has been shown to be carrying on business at 12, Loudon Street, Kolkata-700017. In the writ petition, it is specifically mentioned that the records of the instant case are all lying at the offices of the respondent No. 5 and 6 within the jurisdiction of this Court. On behalf of the writ petitioner, it was categorically submitted that the effect of the orders, which are under challenge in the present application, also need be taken into consideration.
As already indicated, 'impact theory' does not seem to have any sound rational basis in the context of Article 226(2) of the Constitution of India and Section 20 of the Civil Procedure Code notwithstanding Section 141 of the said Code.
In the present case, in view of the claim that the respondent authorities and particularly respondent No. 5 is carrying on business in Kolkata, in my opinion, should give this Court the territorial jurisdiction to entertain the grievances as raised in the present application.
There can be no dispute that the writ issued by this Court cannot run beyond the territories subject to its jurisdiction. The other limitation is that the person or authority to whom the High Court is empowered to issue writ must be within those territories and it implies that they must be amenable to its jurisdiction either by residence or location within those territories. It is not permissible to read in Article 226 the residence or location of the person affected by the order passed in order to determine the jurisdiction of the High Court.
A right of action is the right to enforce a cause of action. In the backdrop of the present case, it cannot be disputed that the orders which are under challenge in the present writ application were issued by authorities who have there office beyond the territorial jurisdiction of this Court. But the Court cannot also ignore the fact that so far respondent No. 5 is concerned, the petitioner in the cause title to the writ application specifically described it as an authority carrying on business in Kolkata. In the writ application it had been specifically pleaded that all the relevant records and files are also lying in the office of respondent Nos. 5 and 6.
As mentioned earlier, the genuineness of the claim cannot be a matter for scrutiny by this Court while determining the territorial jurisdiction. It is to be ascertained on the basis of the averments made. And, as already discussed, it is even a small fraction of the cause of action, which can give territorial jurisdiction to a particular Court.
The fact that the petitioner filed an application under Article 226 of the Constitution before the High Court, Calcutta earlier, being aggrieved with the impugned order dated 5.5.2006 cannot also be lost sight of. It was disposed of with direction upon the appellate authority to decide the departmental appeal within a period of four months from the date of receipt of the order. The said order was not challenged by the respondent authority, nor the plea relating to territorial jurisdiction was raised.
The claim that respondent No. 5 carries on business also in its Kolkata office, which again preserves all relevant files and records, perhaps, leaves no scope for any further controversy.
In such view of the matter, the assertion made on behalf of the respondent that this Court does not have the territorial jurisdiction to entertain the present application, in my opinion, does not satisfy the judicial conscience of the Court. This aspect is, thus, decided in favour of the writ petitioner.
Mr. Sen appearing with Mr. Majumdar, as learned Counsel for the petitioner, sought to challenge the impugned orders on the ground that the said orders suffer from perversity since the authorities proceeded on the basis of material which is not on record and did not choose to take into consideration the evidence which was before the authorities. It was submitted that the representation was considered in a slipshod manner and the impugned orders do not reflect any proper application of mind. The order of the disciplinary authority was sought to be assailed on the further ground that it manifests bias coupled with perversity. In view of the submission made by Mr. Kapur, appearing as learned Counsel for some of the respondent authorities and Mr. Tarafdar for the respondent appellate authority, I think it is necessary to deal with the scope and ambit of an application under Article 226 of the Constitution. By filing the present application, the petitioner sought for judicial review of the two orders i.e. the order of the disciplinary authority as well as that of the appellate authority. It is settled principle of law that while dealing with an application seeking judicial review, this Court is not expected to act as an appellate authority. It is not the decision but the decision making process which can be the matter of challenge. It cannot be denied that the writ petitioner had challenged the order of the said disciplinary authority and the appellate authority mainly on the ground that the disciplinary proceeding was conducted in violation of the principles of natural justice. In support of such contention, Mr. Sen contended that the petitioner was denied a proper opportunity to place his stand. The authority concerned failed to take into consideration that there could not be two major punishments like reduction in rank as well as deduction of salary. Attention of the Court was invited to the charge that there had been collective lapse.
In this context, Mr. Sen expressed wonder as to why in that event the writ petitioner was singly picked up. According to him, the charges are far too vague. On behalf of the petitioner it was submitted that the decision making process was never free from bias and there had been deliberate mis-appreciation of fact. It was emphatically submitted that none of the witnesses deposed that 666 kg. of the material was in store. It was then submitted that the witnesses were at variance and the evidence as recorded would only establish that it suffers from predisposition of mind.
Attention of the Court was further invited to the doctrine of unreasonableness and the doctrine of proportionality while assailing the impugned orders. Mr. Kapur, on the other hand, categorically submitted that it is beyond the scope of judicial review to assess evidence while denying that there had been any violation of the principles of natural justice or that the writ petitioner was not given proper opportunity to defend himself. It was submitted by Mr. Kapur that in response to an application under Article 226 of the Constitution, this Court is not expected to evaluate the evidence on record.
It is no doubt true that while in a criminal trial, a charge is required to be established with evidence beyond the shadow of reasonable doubt, in a disciplinary proceeding, it is preponderance of probability. Even in a criminal trial, credibility of testimony depends on judicial evaluation of the totality - not isolated scrutiny. It is necessary to bear in mind that truth may sometime suffer from infirmity when projected through human process. In the context of a criminal trial, it can also be said that proof beyond reasonable doubt is mere guideline, not a fetish.
In a disciplinary proceeding, it is for the disciplinary authority to appreciate materials on record in a different perspective. It may not be necessary for such an authority to insist upon dotting of every 'i' and cutting of every 't'. It is the totality of the circumstances that it is required to be taken into consideration while arriving at the conclusion.
On behalf of the writ petitioner, it was submitted that at best the petitioner could be held guilty of committing an error of judgment and if so, it cannot come within the scope and ambit of 'misconduct'. It is also true that legality and propriety of the decision making process can always be the subject matter in a judicial review. It needs no repetition that in response to an application under Article 226 of the Constitution, this Court can also very well interfere when the punishment inflicted is found to be disproportionate and if the same shocks the conscience of the Court.
It is, perhaps, necessary to first deal with the scope of judicial review. It is settled position of law that this Court cannot act as a court of appeal in response to an application for judicial review. Mr. Sen, as learned Counsel for the petitioner in this context, however, referred to the decision of the Apex Court in the case of Narinder Mohan Arya Vs. United India Insurance Co. Ltd. & Ors., as reported in (2006) 4 SCC 713.
The Apex Court held :-
"..........In the event the findings arrived at in the departmental proceedings are questioned before it, it should keep in mind the following :
(1) The enquiry officer should not be permitted to collect any material from outside sources during the conduct of the enquiry. (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice. (3) Exercise of discretionary power involve two elements - (i) objective, and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. (4) It is not possible to lay down any rigid rules of the principles of natural justice which depend on the facts and circumstances of each case but the concept of fair play in action is the basis. (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject-matter of the charges is wholly illegal. (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ Court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances."
In the context of an appellate order it was held that an appellate order if it is in agreement with that of the disciplinary authority may not be a speaking order but the authority passing the same must show that there had been proper application of mind on its part as regards the compliance with the requirements of law.
Deriving inspiration from the decision of the Apex Court in the case of Mathura Prasad Vs. Union of India & Ors., as reported in (2007) 1 SCC 437, it was submitted by Mr. Sen that judicial review would lie if there is error of law apparent on the face of the record, in case of non-application of mind by statutory authority or exercise of power by statutory authority in a manner not provided for in the statute. There can be no two opinions that where on the result of the enquiry the employee is likely to be deprived of his livelihood, the prescribed procedure must be strictly followed.
In response to the submission that the order passed by the appellate authority does not reflect any proper application of mind, it was submitted on behalf of the respondent Nos. 1 and 2 that disciplinary authority is required to give reasons only when it disagrees with the finding of the enquiry officer and not when it concurs with such finding. (Ref:
National Fertilizers Ltd. & Anr. Vs. P. K. Khanna, (2005) 7 SCC 597).
It was further contended that judicial review cannot extend to the examination of the correctness of the charges as it is not an appeal but only a review of the manner in which the decision was arrived at. In this context, reference was made to the decision of the Apex Court in the case of between Principal Secretary, Govt. of A.P. & Anr. Vs. M. Adinarayana, as reported in (2004) 12 SCC 579.
It was emphatically submitted by Mr. Kapur that reappraisal of evidence is not permissible while exercising power under Article 226. It only acts as a supervisory authority and not as an appellate one. (Ref: Sub-Divisional Officer, Konch Vs. Maharaj Singh, (2003) 9 SCC 191).
In course of submission Mr. Sen referred to the reasons for the disciplinary authority for not agreeing with the findings of the enquiry officer. The enquiry report revealed that charge Nos. 2 and 6 were proved beyond doubt. While the I.O. had specifically reported that the charge No. 5 was not proved he had not specifically mentioned in his report as to whether the charges 1, 3, 4, 7, 8 and 9 had been proved or not. The disciplinary authority had disagreed with the findings of the I.O. in respect of the charges 1, 3, 4, 5, 7, 8 and 9. The disciplinary authority then proceeded with the matter. After going through the charges, the written statement of defence and written brief submitted by the charged officer, the deposition of the witnesses, the enquiry report of the I.O., the disciplinary authority passed the order justifying disagreement with the findings of the enquiry officer. Though reference was sought to be made to the evidence of the witnesses and materials on record, I am afraid, this Court cannot really measure the same in coffee spoon. It is only to be seen as to whether the authority concerned proceeded on the basis of the material which is not on record or if the said authority failed to consider the matter which is with the record. In that event, the finding of the concerned authority can be assailed on the ground that it suffers from perversity.
The disciplinary authority after analyzing the materials on record concluded that there were gross negligence and serious dereliction of duties with questionable motives on the part of the charged officer. He, thus, found the charged officer to be individually and collectively responsible for the pecuniary loss as mentioned in article of charge No.8. The disciplinary authority then proceeded with imposition of punishment. The charged officer was penalized by way of reduction in rank from the current post of Deputy Director held by him in the grade of S-19 in time scale Rs. 10000-325-15200 to the lower post of Assistant Director in grade of S-15 in time scale Rs. 8000-275-13500 with effect from 01.07.2006 till the date of his retirement. He directed that pay of the charged officer will be fixed in the reduced scale of pay of Rs. 8000-275-13500 with effect from 01.07.2006 and he will earn normal increments in the scale of pay of Rs.8000-275-13500 in the month of July every year. The disciplinary authority further observed that the charged officer was individually and collectively responsible for the pecuniary loss of Rs. 18,44,593/- caused by mismanagement. Such disciplinary authority then went to observe that separate orders for recovery of the amount will be issued later. The appellate authority being the Commerce Secretary by order dated 26th March, 2007 affirmed the decision of the disciplinary authority.
The appellate authority concluded by observing as follows :-
"After having carefully considered the appeal and relevant facts and circumstances of the case as stated hereinabove, the undersigned has come to the conclusion that there is no merit in the appeal and the appeal is therefore dismissed. The order of the disciplinary authority to impose the penalty of reduction in rank from the post of Deputy Director held by Shri B. Basak in the grade of S-19 in time scale, Rs.10000-325-15200 to the lower post of Assistant Director in grade of S-15 in time scale Rs. 8000-275-13500 with effect from 01.07.2006 till the date of his retirement, is upheld."
It is true that while agreeing with the findings of the disciplinary authority, the appellate authority may not be under obligation to analyze every aspect of the matter and deal with every minor details. On perusal of the order of the appellate authority it is found that such authority just referred to the factual backdrop of the disciplinary proceeding. Then reference was made to the nine charges, which were levelled against the writ petitioner. The order of the disciplinary authority dated 5.5.2006 was then referred to. The appellate authority then proceeded to deal with the various grounds as taken by the appellant. It, however, appears from the findings of the disciplinary authority that so far grounds Nos. 1 and 11 of appeal are concerned, the appellate authority could not accept the contention of the appellant that he relied on set standards of 15-18 kg. of Artemia Cysts for production of one million seeds. The above finding appears to be based on his belief. As regards ground Nos. 111 and 1V, the appellate authority observed that the decision for placing the order of M/s. Argent Chemical Lab., who quoted for the entire quantity appears to have been taken arbitrarily. The said authority held that there had been a procedural lapse on the part of the appellant in not mentioning the hatch out percentage, expiry date either in the quotation or while placing the order on the firm. This was with reference to ground No. V. So far ground Nos. V1, V11 & V111 are concerned, the appellate authority accepted the contention of the disciplinary authority, which relied on "well established practice".
Thus, on careful scrutiny of the materials available on record, it can be found that there was practically no material worth mentioning so as to attribute any ill-motive or mala fide intention in the conduct of the writ petitioner. In that event, the charges largely centered around the allegation that there had been error of judgment. If so, it cannot be said that the authorities were justified in holding the writ petitioner guilty of misconduct. It could very well be that there had been gross negligence or rashness on the part of the writ petitioner. But in order to establish misconduct, something more than that is required to the added to that. Mere negligence, failure to appreciate the matter in its proper perspective or any procedural lapse may not amount to misconduct.
It may be mentioned that the evidence on record did not justify the said authority to come to a finding of guilt. If the authorities on the basis of the materials while holding that there had been procedural lapse, come to a finding of misconduct, it cannot be said to be a wrong decision but it amounts to a wrong and improper manner in dealing with an enquiry proceeding. It, thus, justifies interference by the writ Court in response to an application for judicial review since it is not the decision which is under consideration of this Court but the decision making process. The writ Court cannot shut its doors and afford to remain indifferent on the ground that the scope of judicial review is limited.
Mr. Sen, as learned Counsel for the petitioner, categorically submitted that mere error of judgment cannot be construed as 'misconduct'. In this context he derived inspiration from the decision in the case of Union of India & Ors. Vs. J. Ahmed, as reported in AIR 1979 SC 1022. It cannot be denied there may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high.
Deriving inspiration from the Division Bench decision of this Court in the case of Shri Dipankar Sengupta Vs. U.B.I. & Ors. as reported in 1998(2) CLJ 204, it was submitted by Mr. Sen that some sort of ill-motive or bad motive is an essential ingredient in imputing misconduct.
Reference was also made to another Division Bench decision of this Court in the case between Bank of India & Anr. Vs. Tapan Kumar Sil, as reported in 2007 (115) FLR 225. In the said case it had been observed that the term 'misconduct' implies a wrongful intention and not a mere error of judgment. A single act of omission or error of judgment would ordinarily not construe misconduct. Misconduct means comprised positive acts and not mere neglect or failures.
The learned Court held that 'misconduct' arises from ill-motive and mere acts of negligence or errors of judgment do not constitute any misconduct. Even if there is any error of judgment in discharging the duties the same cannot constitute misconduct unless ill-motive in the aforesaid act is established.
On behalf of the writ petitioner it was further submitted that the punishment imposed on the writ petitioner is also disproportionate to the charges. In support of such contention, reference was made to the decision of the Apex Court in the case of between Deb Singh Vs. Punjab Tourism Development Corporation Ltd. & Anr., as reported in (2003) 8 SCC 9 and the decision in the case of Kanta Devi (Smt) Vs. Union of India & Anr., as reported in (2003) 4 SCC 753.
Deriving support and strength from the decision in the case of State of Madhya Pradesh & Anr. Vs. Hazarilal, as reported in (2008) 3 SCC 273, it was submitted that the Wednesbury principle of unreasonableness has been replaced by doctrine of proportionality.
Mr. Kapur, as learned Counsel for the respondents, referred to the decision of the Apex Court in the case of Apparel Export Promotion Council Vs. A.K. Chopra, as reported in (1999) 1 SCC 759. The said case, however, takes into consideration the gender inequality in the society and observes that our law and Courts need be sensitized in order to look at the problem of women through their eyes. In the said case, sexual harassment at work place of female employees was dealt with.
Mr. Kapur also referred to the decision of the Apex Court in the case between Government of India & Anr. Vs. George Philip, as reported in (2006) 13 SCC 1, while submitting that the Tribunal or the High Court exercising jurisdiction under Article 226 of the Constitution do not hear an appeal against the decision of the disciplinary authority imposing punishment upon the delinquent employee. The jurisdiction is a limited one. While exercising the power of judicial review, it cannot set aside the punishment altogether or impose some other penalty unless it is found that there has been substantial non- compliance with the rules of procedure or a gross violation of rules of natural justice which has caused prejudice to the employee and has resulted in miscarriage of justice or the punishment is shockingly disproportionate to the gravamen of the charge. No doubt, the submission of Mr. Kapur in this regard is the well settled position of law.
Judicial review certainly does not permit examination of the correctness of the charges. But it can certainly intervene when the findings are not based on legally permissible substantive evidence. This Court while dealing with an application under Article 226 of the Constitution also cannot shut its eyes when it is found that the inference drawn by the authorities is not based on materials on record.
It may also be mentioned that Mr. Tarafdar, as learned Counsel for the respondent authority while echoing the submission made by Mr. Kapur, categorically contended that the order passed by the Appellate Authority does not suffer from any impropriety or illegality justifying interference by this Court. He reiterated that as Appellate Authority, he was under no obligation to get into any further details and assign reasons while agreeing with the findings of the Disciplinary Authority.
In view of the discussion already made, I do not think it necessary to deal with the nature and quantum of punishment since it has already been found that the findings of guilt, as had been made by the disciplinary authority and thereafter, confirmed by the appellate authority, are not based on concrete materials but relate to their own perception and belief. In my opinion, what can be said to have been established in the disciplinary proceeding is that he was guilty of error of judgment. In absence of any ill-motive, this could not be taken as misconduct.
As discussed earlier, the manner in which the disciplinary authority has dealt with the matter is not just and proper.
Thus, the present writ application being W.P. No. 6850 (W) of 2007 succeeds and be allowed. The impugned order being order dated 5th May, 2006 passed by the Disciplinary Authority and the order dated 26th March, 2007 passed by the Appellate Authority are hereby quashed. The respondent authorities are directed not to give effect to the said orders being Annexures-'P-7'& 'P-8' respectively.
There is no order as to costs.
Xerox certified copy of the judgment be supplied to the parties, if applied for, as expeditiously as possible.
(S.P. Talukdar, J.) Later :-
Immediately after passing of the said judgment and order, learned Counsel for the respondent authority has sought for stay of operation of the judgment and order dated 9th April, 2009.
Mr. Sen, appearing as learned Counsel for the writ petitioner, opposes such prayer for stay.
After due consideration of the relevant facts and circumstances, the operation of the said judgment and order is stayed for a period of three weeks from this date.
Xerox certified copy of the judgment be supplied to the parties, if applied for, as expeditiously as possible.
(S.P. Talukdar, J.)