Calcutta High Court (Appellete Side)
Kamal Kumar Banerjee vs The Board Of Trustees For on 10 June, 2009
Author: Dipankar Datta
Bench: Dipankar Datta
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present: The Hon'ble Mr. Justice Dipankar Datta
WP No. 24965 (W) of 2008
Kamal Kumar Banerjee
Versus
The Board of Trustees for
the Port of Calcutta & ors.
Mr. A. Das
Mr. A.K. Das ......... For the petitioner.
Mr. Kishore Dutta,
Mr. Somnath Bose ......... For the respondents.
Heard on: March 19 and 26, April 23 and 30, and May 7, 2009 Judgment on: June 10, 2009 A superannuated employee of the Kolkata Port Trust (hereafter the 'Trust') has invoked the writ jurisdiction of this Court feeling aggrieved by an appellate order dated 1/9/2008 confirming the order of the disciplinary authority dated 19/8/2007 whereby it has been directed, as a measure of penalty, that an amount of Rs.2000/- per month shall be deducted from the monthly pension payable to him during the rest of his life.
The genesis of the impugned action may be noticed. At the material time, the petitioner was employed as Land Inspector in the Estate Department of the Trust. He was due to retire on superannuation on 1/2/2003. Four months prior to his superannuation, disciplinary proceedings commenced against him vide Memorandum dated 11/9/2002 issued by the Deputy Chairman of the Trust (the disciplinary authority). The statement of Articles of Charges framed against the petitioner reads as follows:
"Charge - I : Shri Kamal Kumar Banerjee, Land Inspector, Howrah Section is charged with misconduct in as much as while employed as a Land Inspector in Estate Department, he had given an unauthorised instruction to the Advocate on record of KoPT in Title Suit No.227 of 1988 M/s. Jute & Stores Ltd. -vs- KoPT before the Ld. Civil Judge (Jr. Division) 3rd Court at Howrah with malafide intention and as a consequence a "no objection" was accorded on behalf of KoPT to the petition of M/s. Jute & Stores for withdrawal of the suit filed by them on the false ground that an amicable settlement had been reached between the parties and as such the abovementioned action on the part of Shri Kamal Kumar Banerjee, Land Inspector, Howrah Section was detrimental to the interest of KoPT. The abovementioned action on the part of Shri Kamal Kumar Banerjee amounts to a grave misconduct and is unbecoming of a Class-II officer of KoPT.
Charge-II : Shri Kamal Kumar Banerjee, Land Inspector, Howrah Section is charged with misconduct in as much as while employed as a Land Inspector in the Estate Department he has made a false statement in his note dated 28.5.2002 on pages 31-32 of N/O sheet in File no.Lnd.4054/IV that he had consulted Shri Moloy Bandyopadhyay, Dy. Land Manager-II in the absence of Smt. P. Mandal, Dy. Land Manager-I and Shri S.K. Das, Asst. Land Manager-II regarding the course of action to be adopted during the hearing before the Ld. Court at Howrah when actually no such discussion/consultation took place as per Shri M. Bandyopadhyay, Dy. Land Manager -II's note dated 17.7.2002 on page 33 of N/O sheet in File No.Lnd.4054/IV. Moreover, Shri S.K. Das, Asst. Land Manager-II was very much present on 28.5.2002. The abovementioned action on the part of Shri Kamal Kumar Banerjee amounts to a grave misconduct and is unbecoming of a Class-II officer of KoPT.
Charge - III : Shri Kamal Kumar Banerjee, Land Inspector, Howrah Section is charged with misconduct, in as much as while employed as a Land Inspector in the Estate Department he has made a false statement in his note dated 28.5.2002 on pages 31-32 of N/O sheet in File No.Lnd.4054/IV that he had instructed the Advocate on record in Title Suit no. 227 of 1998 M/s. Jute & Stores Ltd. vs. KoPT before the Ld. Civil Judge (Jr. Division), 3rd Court at Howrah to accord "no objection" to the petition filed by M/s. Jute & Stores for withdrawal of the suit if the suit was withdrawn unconditionally and without any terms and conditions, when the fact was that Shri Banerjee instructed the said Advocate otherwise and as a consequence "no objection"
was accorded on behalf of KoPT for withdrawal of the said suit by the plaintiff on the false ground that an amicable settlement had been reached between the parties and that KoPT had agreed to regularise the lease/tenancy in respect of the suit premises in the agreed manner and on the agreed terms. The abovementioned action on the part of Shri Kamal Kumar Banerjee amounts to a grave misconduct and is unbecoming of a Class-II officer of KoPT."
The petitioner replied to the charges. His reply was not found to be satisfactory by the disciplinary authority. Thereafter, an enquiry followed into his conduct. Several witnesses were produced, both on behalf of the prosecution and the defence before the Enquiry Officer. Upon consideration of the materials on record as well as the evidence adduced, the Enquiry Officer returned the following findings:
" 7. CONCLUSION 7.1 In view of the foregoing analysis of evidence and findings therefrom, conclusions against the three Articles of Charge framed against Sri Kamal Kumar Banerjee, as per C.S. Memo No.LND/4054/IV dated 11.09.2002 are as follows:
Article of Charge no. I- Established to the extent that the verbal communication made by the C.O. to the KoPT Advocate for according "No Objection" to the petition for withdrawal of the Suit filed by the Plaintiff was unauthorised. In the absence of any specific evidence before the enquiry, the allegation of "Malafide Intention" behind such communication cannot be treated to have been established. Article of Charge No. II- Established.
Article of Charge no. III- Not considered established in the absence of sufficient and appropriate evidence."
The report of enquiry was forwarded to the petitioner inviting his comments. The opportunity was availed of by him. However, on consideration of the evidence adduced in course of enquiry, the enquiry report as well as the petitioner's comments thereagainst, the Deputy Chairman of the Trust in exercise of power conferred by Reg.7 of the Kolkata Port Trust Employees (Pension) Regulations, 1988 (hereafter the Pension Regulations) along with Reg.8 of the Kolkata Port Trust Employees' (Classification, Control and Appeal) Regulations, 1981 (hereafter the CCA Regulations) ordered that the monthly pension of the petitioner would be reduced by Rs.2000/- with immediate effect as a measure of punishment. As has been noted above, appeal filed by the petitioner against the order of penalty proved unsuccessful. The Chairman of the Trust, being the appellate authority, dismissed the appeal holding that no new ground had been urged by the petitioner and, therefore, the order of the disciplinary authority did not merit interference.
Mr. Das, learned counsel representing the petitioner, sought to convince this Court that the petitioner had been made a victim of circumstances. By referring to the departmental notes initiated by the petitioner, he contended that at all times the petitioner had discharged his duty and performed his functions in accordance with laid down procedure and that the Enquiry Officer erred in holding him guilty of part of the first charge to the effect that he had unauthorisedly given instruction to the Trust's Advocate-on-Record.
So far as the second charge is concerned, it was argued by him by inviting the Court's attention to the oral evidence as well as the documentary evidence on record that the findings of the Enquiry Officer are totally perverse.
Referring to Reg.7 of the Pension Regulations, he contended that the disciplinary authority exercised power to withhold a part of pension payable to the petitioner not in accordance therewith and, therefore, exceeded his jurisdiction. According to him, an order withholding a part of pension payable to a superannuated employee like the petitioner could be exercised only if the pensioner was found guilty of grave misconduct during the period of his service; however, the penal order of the disciplinary authority does not record any satisfaction reached by him that the petitioner was indeed guilty of grave misconduct warranting a drastic order of withholding of pension.
He relied on the decisions reported in AIR 1969 Madras 121 (Management of Presidency Talkies vs. N.S. Natarajan & Anr.) and AIR 1970 Punjab & Haryana 81 (Bhagwat Parshad vs. Inspector General of Police, Punjab & Ors.) for the proposition that in order to withhold pension, a distinction has to be made between a 'misconduct' and a 'grave misconduct' and that pension could be withheld by the disciplinary authority only if the pensioner had been found guilty of grave misconduct.
He also relied on the decision reported in AIR 1996 SC 484 (B.C. Chaturvedi vs. Union of India & Ors.) for the proposition that a Court of Writ may interfere with the quantum of punishment imposed by the disciplinary authority if it shocks the conscience of the Court and that in appropriate cases, the punishment may even be moulded to shorten litigation.
He, accordingly, prayed for setting aside of the order of the disciplinary authority, since merged in the order of the appellate authority.
Mr. Dutta, learned counsel representing the Trust and its Officers, vehemently opposed the writ petition. According to him, the petitioner overstepped his limit by conveying to the Trust's Advocate-on-Record that it had no objection to withdrawal of the concerned suit by the plaintiff. It was his endeavour to demonstrate before the Court that the petition for withdrawal of the suit filed by the plaintiff contained an averment that the dispute between the plaintiff and the Trust (being the defendant) had been amicably settled since the Trust had agreed to regularise the tenancy/lease in respect of the suit premises, and that it was on such ground that the suit was allowed to be withdrawn. Since no objection had been raised before the Trial Court on 11/6/2002 on behalf of the Trust in respect of such averment contained in the petition for withdrawal, the plaintiff as respondent in subsequent proceedings initiated under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 has been taking the defence that the disputes between the parties having been amicably settled and the Trust having agreed to regularise the lease/tenancy in respect of the suit premises in the agreed manner and on the agreed terms, not only are the proceedings being delayed but the Trust is also running the risk of not having an order of eviction being passed against the plaintiff in the suit, being the unauthorised occupant, in terms of the said Act. He further contended that the degree of prejudice suffered by the Trust consequent to misconduct committed by the petitioner may not be visualised if one looks at the charges levelled against him and found proved, but the ground realities bear ample testimony that the action of the petitioner in conveying no objection to withdrawal of the suit, without authority, has resulted in immense hardship and inconvenience to the Trust which was a relevant factor that weighed in the mind of the disciplinary authority in imposing punishment.
By referring to the evidence of Mr. Malay Bandopadhyay (hereafter MW-1) and Mr. S.K. Das (hereafter MW-3), he sought to impress the Court that the Enquiry Officer having relied on their depositions and held the second charge against the petitioner to have been established, did not commit any error. According to him, there had indeed been some evidence on record which linked the petitioner with the charge framed against him and he urged the Court to refrain from appreciating as to whether the evidence was sufficient and/or reliable on the basis whereof a finding of guilt could be reached, since such course of action is not permissible in exercise of judicial review powers. To put it differently, he argued that that would be within the domain of the departmental authority's power and since the Court of Writ is essentially concerned with the process of decision making leading to the ultimate decision while exercising judicial review powers, it may not assume the role of an appellate authority over the decision of the fact finding authority in the present case. Reliance, in this connection, was placed by him on the decision reported in (2002) 7 SCC 142 (Sher Bahadur vs. Union of India).
He further contended that standard of proof in a disciplinary enquiry is that of preponderance of probability and having regard to the discussion in the enquiry report, it is manifest that there was some legal evidence on record to hold that the petitioner in fact was guilty of misconduct, as alleged. The decision reported in (1999) 4 SCC 759 (State Bank of India vs. T.J. Paul) was referred to by him for the proposition that while considering the punishment to be imposed, the question as to whether the employer has suffered loss or not is not at all material; what would be material is whether the delinquent had exceeded his powers or not. The argument seems to be that even if there be no finding that loss has been incurred by reason of the act forming subject of the charges, yet, if it is established that the act itself has been performed not according to laid down norms, the likelihood of no loss being suffered would not be a mitigating factor.
Mr. Dutta, while countering the argument advanced by Mr. Das on the point that the order of penalty does not record any finding that the petitioner was found guilty of grave misconduct, contended that no such finding was required to be given. In justification thereof, it was claimed by him that the charge-sheet had been issued against the petitioner in terms of Reg.8 of the CCA Regulations which provides the procedure for imposing major penalties. Since major penalty proceedings were initiated against the petitioner, it is obvious that the offences alleged to have been committed by the petitioner and forming part of the charges were considered by his disciplinary authority to constitute a grave misconduct and, therefore, there was no need to repeat in the final order of penalty that the petitioner was guilty of grave misconduct. According to him, whether Reg.8 or Reg.9 (procedure for imposing minor penalty) is to be invoked is a decision that has to be taken by the disciplinary authority at the threshold and the petitioner not having challenged the decision to initiate proceedings for imposition of major penalty, such decision cannot form the subject of judicial review at this stage.
Replying to a query of Court as to whether non-consideration of the oral evidence tendered by Mr. Tapan Kumar Ghosal, another superannuated employee of the Trust (hereafter DW-1), by the Enquiry Officer would amount to discarding of relevant evidence and therefore the report can be branded to be perverse, he made a fervent attempt to impress the Court that DW-1's oral evidence is not entitled to any credence because he was a tutored witness. First, he submitted that DW-1 had deposed after his retirement from service and not being under the disciplinary control of the Trust, had been partial and unfair in his response; and secondly, having regard to the anomalies in his version, his oral evidence is not credible and therefore the Enquiry Officer was right in not giving the same any credence.
On the basis of the aforesaid submissions, Mr. Dutta urged the Court to dismiss the writ petition.
This Court has heard learned counsel for the parties at length and perused the materials on record before the Enquiry Officer.
Before considering the first charge levelled against the petitioner and the finding recorded by the Enquiry Officer in respect thereof, this Court proposes to review the process by which the Enquiry Officer held that the second charge levelled against him was proved.
The second charge, simply put, is that the petitioner had made false notes in his note date 28/5/2002. The first allegation against him is that MW-1 never had any discussion with him on 28/5/2002 and, therefore, he had wrongly recorded that he had discussions with him; secondly, though MW-3 was present in his office on 28/5/2002, he had wrongly mentioned to the contrary.
MW-1 in course of his deposition flatly denied having any discussion with the petitioner in relation to conveying the Trust's no objection to withdrawal of the suit pending before the Trial Court while MW-3, on the other hand, by looking into the attendance register, deposed that he was indeed present in the office on 28/5/2002. On the basis of the aforesaid depositions of MW-1 and MW-3, the Enquiry Officer returned a finding that Article of Charge No.2 levelled against the petitioner stood established.
Since MW-1 and the petitioner, as DW-2, had given conflicting versions on the issue, it was open to the Enquiry Officer to accept the version of one and to reject the other by giving cogent reason in support thereof. Why the evidence of MW-1 appealed to the Enquiry Officer in preference to the petitioner has not been indicated in the report with any degree of clarity by him. The petitioner was at least entitled to know why his version was not accepted. The ipse dixit of the Enquiry Officer cannot be a substitute for reason. On the authority of the decision reported in AIR 1985 SC 1121 (Anil Kumar vs. Presiding Officer), the report of enquiry is vulnerable.
Even if the above infirmity in the enquiry report is overlooked, there is a further infirmity, far too serious, which has attracted the Court's attention to hold that the report of the Enquiry Officer is totally perverse. DW-1 while in service was posted in the Estate Department of the Trust. Portion of his deposition relevant for a decision on this petition, reads thus:
"452. I am aware that there were some discussions in connection with the Court case of M/s. Jute & Stores Ltd. between Sri Kamal Kr. Banerjee, Ex-Inspector and Sri Malay Bandyopadhyay, Dy. Land Manager-II, in the office chamber of the later. The discussions were held on 28.5.2002 at about 10.15 A.M. So far as I remember, I was present in the chamber of Dy. LM-II at that time in connection with some other case relating to Ashim Kr. Das, a tenant of Calcutta Section, when Sri Kamal Kr. Banerjee, the then Inspector, entered the chamber of Dy. LM-II. Sri Banerjee told Dy. LM-II that the case of M/s. Jute & Stores Ltd. was scheduled to be heard on that date i.e. 28.5.2002 and the party was willing to withdraw the case. He further stated that Smt. Purba Mondal, Dy. LM-I was not present in office being on leave and Sri S.K. Das, Asstt. Land Manager was yet to arrive in office. But the case to be attended at the Howrah Court. Under the circumstances wanted to know from Dy. LM-II regarding the course of action to be taken with regard to the petition filed by the party themselves for withdrawal of the suit. Dy. LM-II Sri Bandyopadhyay said that since the party had filed the suit against KoPT and they themselves wanted to withdraw the same, there should be no objection from the KoPT side".
The deposition of DW-1 assumes significance since he was a third party who was present on 28/5/2002 in the office chamber of MW-1. It could be so that DW-1 had been tutored to depose in support of the petitioner, as contended by Mr. Dutta. Surprisingly, the Enquiry Officer did not say so. Not having said so, there was no valid reason as to why his evidence was not considered by the Enquiry Officer. Since the Enquiry Officer had not adverted to the evidence of DW-1 while giving his finding in respect of Article of Charge No.2, obviously Mr. Dutta could not show the same to the Court, being called upon. However, he submitted that the evidence of DW-1 did not constitute relevant evidence exclusion whereof would render the findings of the Enquiry Officer perverse. In the considered view of this Court, this is an argument in desperation. Whether or not the evidence of a witness is relevant for a decision in the enquiry is a question which must exercise the consideration of the Enquiry Officer. It was open to the Enquiry Officer to discard the evidence as not relevant. In the absence of any recording in this regard, not to speak of reason being assigned in support thereof, it is not open to the respondents to contend before this Court that by not considering the evidence of DW-1, the Enquiry Officer committed no wrong since it was not relevant. The argument is thoroughly untenable and deserves to be rejected.
Now, turning to the evidence of DW-1 it is found that he was present in the office chamber of MW-1 when he overheard the discussion between him and the petitioner. The discussions related to willingness expressed by the plaintiff to withdraw the suit. He heard the petitioner saying that the Deputy Land Manager- I was not present in office being on leave and that MW-3 being the Assistant Land Manager, was yet to arrive in office. But the case had to be attended at Howrah Court. The petitioner had asked MW-1 regarding the course of action to be taken with regard to the petition filed by the party himself for withdrawal of the suit to which MW-1 replied that since the plaintiff had instituted the suit and wanted to withdraw it, there should not be any objection from the side of the Trust.
This evidence, accepted on face value, would demolish the claim of MW-1 that the petitioner did not have any discussion with him in respect of the course of action to be adopted with regard to the plaintiff's prayer for withdrawal of the suit. The evidence was, thus, quite relevant in the circumstances. The fact that MW-1 did not have the authority to convey 'no objection' on behalf of the Trust, heavily relied on by Mr. Dutta, is absolutely irrelevant. Question was whether the petitioner made a correct note or not regarding his discussion with MW-1. DW-1 amply corroborated the petitioner's version that there was a discussion. That DW-1 deposed as a tutored witness and therefore his evidence was not worth considering should have found place in the enquiry report, and cannot be urged for the first time before the Court of Writ. Non-consideration of the evidence of DW-1 by the Enquiry Officer, therefore, is patently perverse which has the effect of vitiating the finding contained in his report.
MW-3, in course of his deposition, stated that he was in his office on 28/5/2002 from 9.30 a.m. The Enquiry Officer accepted his statement as true, consequently and indirectly holding the petitioner to be a liar. However, in holding so, the Enquiry Officer appears to have excluded from his consideration two very vital aspects, - first is the note dated 28/5/2002 prepared by the petitioner and the other being MW-3's response thereto. The same are quoted hereunder:
"As J.L.I. Sri Jalal Khan is on leave I attended the court to-day (28.5.02) in connection with the above.
But, as the Court was absent the hearing was adjourned for the day. In this connection, you may kindly see the endorsement of the Trustees' Advocate dt. 28.5.02 on the LA's letter dt. 22.5.02 (Dkt. No.2660). I requested our Advocate to let us intimate the next date of hearing.
As you were not present on 28.5.02 and Dy. LM-I is on leave, I consulted the matter regd. The withdrawal of suit by the plaintiff when Dy.LM-II told me to intimate our Advocate that we have no objection if the Plaintiff withdraws the suit (without any terms and conditions). Accordingly, I also told our Adv. That we have no objection if the plaintiff withdraws the suit (without assigning) any terms and conditions.) 'x' If you approve, this may be diaried for one month.
For orders please.
K.B. 28.5.02 'X' As proposed.
LI(H) Sd/- S.K. Das
30.5.02."
It would appear from the note of the petitioner dated 28/5/2002 that he had alleged absence of MW-3 in office on that date for which he had to consult MW-1 regarding withdrawal of the suit filed by the plaintiff. The proposal of the petitioner was accepted by MW-3 on 30/5/2002 when the file was placed before him. MW-3 could not have agreed to the proposal of the petitioner unless he had read the entire note. If the petitioner had made an incorrect statement in such note to the effect that MW-3 was not present on 28/5/2002 at or about the time it was prepared, nothing prevented MW-3 to record on 30/5/2002 contemporaneously that the note contains an incorrect statement. Absence of any reaction from MW-3 on this point supports the petitioner's statement in the note that he was not present in the office in the initial hours. The attendance register that was placed before the Enquiry Officer has been looked into. Nothing turns on it since the time of arrival in office is not noted therein.
That apart, DW-1 in his deposition commented that MW-3 used to come to office from Bandel and arrived at office at about 12 noon/12.30 p.m. No question was put to DW-1 in cross-examination for seeking a clarification as to whether it was a regular or an occasional feature. In the light of the statement of DW-1 and non-raising of any objection by MW-3 in relation to the petitioner's note dated 28/5/2002 contemporaneously on 30/5/2002 when he had the occasion to deal with the note is a clear indicator that deposition of MW-3 before the Enquiry Officer that he was present on 28/5/2002 from 9.30 a.m. is an embellishment.
It is thus clear that important material which was before the Enquiry Officer escaped his notice. The enquiry report on Article of Charge No.2 thus is perverse and this Court has no hesitation to hold that the said charge could not have been said to be established against the petitioner.
At this stage, it would be appropriate to deal with the other argument of Mr. Dutta. By referring to the deposition of DW-1, he contended that the same is not at all reliable. According to him, the petition for withdrawal was filed on 11/6/2002 as would be evident from the noting thereon made by the Advocate for the plaintiff and, therefore, question of the petitioner seeking instructions on 28/5/2002 with regard to further course of action on such petition could not have arisen. One does not know for sure that the noting on the petition is by the Advocate for the plaintiff since no witness proved it. It is settled law that a document does not prove itself and, therefore, this Court is not in a position to accept his argument. Besides the same, it appears from the document referred to in the petitioner's note dated 28/5/2002 extracted supra, being the Legal Advisor's letter dated 22.5.02 (Dkt. No.2660) which was placed by Mr. Dutta on being directed, that the same clearly records receipt of the petition for withdrawal filed by the plaintiff by the office of the Trust or its Advocate anytime before 22/5/2002, and probably by 4/4/2002. This Court, therefore, finds no reason to reject the evidence of DW-1 on the point urged by Mr. Dutta.
It would now be the endeavour of the Court to consider the contentions raised in respect of Article of Charge No.1.
Since power to withhold or withdraw pension flows from Reg.7 of the Pension Regulations, it would be worthwhile to note the portion thereof that is relevant for a decision here. It reads thus:
"7. (1) The Chairman reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and or ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Board, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re- employment after retirement :
Provided further that where a part of pension is withheld or withdrawn the amount of such pension shall not be reduced below the amount of rupees sixty per mensem.
******"
The term "grave misconduct'" has not been defined in the Pension Regulations. However, the manner in which employees of the Trust in course of employment must conduct themselves has been specified in the Calcutta Port Trust Employees' Conduct Regulations (hereafter the Conduct Regulations). It necessarily follows that if an employee of the Trust acts in a manner contrary to provisions contained in the Conduct Regulations, the same may constitute misconduct. While those acts which can validly be categorised as 'grave misconduct' are no doubt comprehended within the meaning of 'misconduct', all the acts mentioned in the Conduct Regulations would not constitute grave misconduct. To constitute grave misconduct, the gravity of the act complained is of considerable importance. It must comprise such element of undesirability or be of such heinous nature that if the accusation is proved, the employer would consider it to be justified in not retaining the employee in service any longer resulting in a major punishment of the nature of termination of service being ordered. However, whether or not a delinquent is guilty of grave misconduct might also be dependent on mens rea, if any, and the effect or the consequence the act forming subject matter of the charges has on the employing organisation.
In paragraphs 10 and 11 of the decision reported in Bhagwat Parshad (supra), the learned Judge held as follows:
"10. "Misconduct" is a generic term and means "to conduct amiss; to mismanage; wrong or improper conduct; bad behaviour; unlawful behaviour or conduct." It includes malfeasance, misdemeanour, delinquency and offence. The term "misconduct" does not necessarily imply corruption or criminal intent.
11. The word "grave" is used in many senses and implies seriousness, importance, weight etc. There is, however, a distinction, between misconduct and grave misconduct. The adjective 'grave' in this context makes the character of the conduct, serious or very serious. The words "gravest acts of misconduct" are incapable of definition. One has to apply one's mind to the words and give a meaning to each of them in the light of the actual deed, situation and circumstances. 'Misconduct' in order to earn the epithet of gravity has to be gross or flagrant. Consequently the degree of misconduct to justify dismissal has to be higher or more serious."
This Court respectfully shares the view. Until and unless the misconduct of the delinquent is such that it could legitimately be categorised as one that is serious or weighty enough to deserve a punishment of termination of service by way of dismissal, removal, or compulsory retirement, any and every misconduct by mere reason of initiation of major penalty proceedings cannot derive an exalted status of grave misconduct.
Viewed in the light of the above discussion, it has to be ascertained as to whether part of the charge that was found proved constitutes grave misconduct or not which, in ordinary circumstances and provided he was in service, would have resulted in termination of his service.
Article of Charge No.1 comprised of two ingredients viz. (i) giving of unauthorised instruction, (ii) with malafide intention. The second ingredient was not found to be proved by the Enquiry Officer and the disciplinary authority also did not disagree with this finding of the Enquiry Officer.
In the decision reported in 1998 (2) CLJ 204 ( Shri Dipankar Sengupta vs. United Bank of India & ors.), Hon'ble Satya Brata Sinha, J. (as His Lordship then was) speaking for the Division Bench, on consideration of the decisions in AIR 1979 SC 1022 (Union of India & ors. vs. J. Ahmed) and 1986 LAB. I.C. 1961 (Virendra Prosad vs. Union of India & ors.), ruled that procedural lapses or to adhere to usual norms would not constitute misconduct in the absence of ill- motive or malafide.
In the present case, the charge of malafide not being proved, irregularity committed by the petitioner in conveying instruction to the Advocate for the Trust by itself and without anything more may not even constitute misconduct, not to speak of grave misconduct.
The petition for withdrawal filed by the plaintiff reveals averments to the effect that the parties to the suit have amicably settled their disputes and that the Trust has agreed to regularise the tenancy/lease in favour of the plaintiff in the agreed manner and on the agreed terms; thus, the prayer for withdrawal of the suit.
On such petition, the Trial Court passed the following order:
"******Seen the petition for withdrawal of the suit by the plaintiff. Copy is served. No objection is raised by defdt. Plaintiff is examined for this petition. The petition is maintainable so it is allowed.
The plaintiff is permitted to withdraw the suit. Inform."
It is thus clear that the withdrawal was unconditional. Deposition of the plaintiff in course of his examination was not led as evidence in the enquiry. One does not know what he deposed. Non-raising of any objection by the defendant's Advocate, thus, cannot be held to be fatal for the Trust. However, the Trial Court seems to be perfectly justified in ascertaining whether the plaintiff intended to withdraw the suit or not. Since carriage of proceedings is with the plaintiff and if he wishes to plainly withdraw a suit instituted by him without imposition of terms and conditions, a defendant cannot possibly prevent him from doing so. At best, the defendant may seek an order for costs if he has suffered prejudice or loss for grant of injunction or for any other valid cause. The Trial Court did not permit the plaintiff to sue afresh on the self-same cause of action. In such circumstances, the allegation levelled against the petitioner of conveying instruction without authorisation though correct, the degree of culpability in the absence of ill-motive is not so high so as to warrant a conclusion that the petitioner committed such misconduct deserving the punishment that was ultimately imposed on him.
While dealing with this charge, one cannot shut his eyes to certain antecedent facts leading to the order dated 11/6/2002 passed by the Trial Court dismissing the suit. It would appear from the departmental note-sheets that the petitioner on 13/5/2002 laid a note before the MW-3, which reads as follows:
"Pl. see the letter of the party addressed to their Advocate, copy endorsed to this Deptt..
It seems from the letters kept in the file that our recorded tenant is no more interested to proceed with this case. The other occupants on that plot of land have also submitted applications to regularise the tenancy in their favour. In that case, we may write a letter to L.A. that we may have no objection ........................ illegible ..................... the opposite party do not apply any terms and conditions in withdrawing the suit.
A draft letter to the L.A. with a copy to our Advocate is put up for your approval please."
MW 3 by his note dated 15/5/2002 responded as follows:
"Why we would write a letter to L.A., with a copy to Advocate for no-objection in withdrawing the Suit no. 227/98? M/s. Jute & Sources Ltd. filed a Title Suit against KOPT. If the petitioner withdraw the suit, that is their discrition. Why we should comment on the above matter?
The letter need not required to be issued. Please attend Court on the next date of hearing on the above matter and report."
It would be apparent from the above notes that had the petitioner's proposal been accepted and a letter sent to the Legal Advisor as well as to the Advocate representing the Trust in the suit before the Trial Court conveying the Trust's 'no objection' to withdrawal of the suit without imposition of terms and conditions, the necessity of proceeding against the petitioner insofar as the first charge is concerned would not have arisen and disciplinary proceedings in respect thereof would not have even seen the light of the day. Should the petitioner's conduct be characterised as one amounting to grave misconduct warranting withdrawal of Rs.2000/- from his monthly pension? The answer cannot possibly be in the positive. It may be so that there is some remissness on his part in conveying 'no objection' to the Advocate for the Trust in the manner required but certainly the petitioner cannot be said to have conducted himself in such a manner that had he been in service, for such a lapse on his part he would render himself ineligible to be continued in further service. This Court does not, therefore, find that the petitioner was guilty of a grave misconduct for which withdrawing a part of his pension was called for.
Quite apart, this Court finds that the disciplinary authority himself did not record any finding that the petitioner was guilty of grave misconduct. Not having so held, Mr. Das is fully justified in his contention that the disciplinary authority exercised power in a manner not authorised by the relevant Pension Regulations.
Mr. Dutta was called upon by this Court to consider the decision of the Apex Court reported in AIR 1990 SC 1923 (D.V. Kapoor vs. Union of India) wherein a similar point was involved and to reply as to why this Court would not follow the law laid down therein for holding the petitioner entitled to relief. He sought to distinguish the decision by referring to Explanation (b), Rule 8(5) of the Civil Service Pension Rules, which was under consideration before the Apex Court. According to him, the decision of the Apex Court was rendered keeping in mind such rule which defined grave misconduct. Having regard to the fact that the word 'grave misconduct' has not been defined in the Pension Regulations of the Trust, he repeated that the said decision would have no application in the facts of the present case.
The distinction sought to be made by Mr. Dutta is not considered to be of any substance. It would appear from Explanation (b) of Rule 8(5) of the Civil Service Pension Rules that the definition of grave misconduct is an inclusive one and this was also taken note of by the Apex Court. Apart from the acts mentioned in the Central Civil Service (Conduct) Rules that may be construed to constitute grave misconduct for the purpose of withholding pension, the acts mentioned in Explanation (b) of Rule 8(5) of the Pension Rules would also constitute grave misconduct. The distinction sought to be made by Mr. Dutta would have been acceptable if instead of an inclusive definition, Explanation (b) were to specify the acts that would constitute grave misconduct, proof whereof in disciplinary proceedings would deserve withholding of pension or withdrawing a part of it. The Apex Court did not hold the appellant before it entitled to relief on the ground that the offence alleged to have been committed by him was not a grave misconduct as defined in Explanation (b), Rule 8(5). On the other hand, it proceeded to grant relief because the condition precedent for exercise of power of withholding or withdrawing a part of pension was not fulfilled in that case since the President in the order withdrawing pension did not record any finding that the delinquent was guilty of grave misconduct.
In the further considered view of this Court, the decision in D.V. Kapoor (supra) applies with full force in the present case and on the authority thereof, this Court has no other option but to hold that the disciplinary authority by not recording a finding that the petitioner was guilty of grave misconduct erred in the exercise of power by directing reduction in the quantum of pension payable to the petitioner. That major penalty proceedings were initiated against the petitioner and/or that he was accused of grave misconduct does not tilt the balance in favour of the respondents. With the allegation of acting malafide failing, the consideration at the time of passing final order was absolutely different and mechanical exercise of power, as is evident, is hardly sustainable.
For the foregoing reasons, this Court is of the firm opinion that the impugned order of the disciplinary authority, since confirmed by the appellate authority, that the petitioner's monthly pension shall stand reduced by Rs.2,000/- cannot be sustained in law and the entire proceedings initiated against him deserves to be quashed. It is ordered accordingly.
The petition succeeds. The petitioner shall be entitled to costs of this petition assessed at Rs.10,000/- payable within a month by the respondents.
Urgent photostat certified copy of this judgment and order shall be furnished to the applicant within 4 (four) days from date of putting in requisites therefor.
(Dipankar Datta, J.)