Calcutta High Court (Appellete Side)
Santi Sudha Layek vs South Bengal State Transport ... on 15 September, 2016
Author: Arijit Banerjee
Bench: Arijit Banerjee
In the High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
WP 34119 (W) of 2013
Santi Sudha Layek
-Vs.-
South Bengal State Transport Corporation & Ors.
Coram : The Hon'ble Justice Arijit Banerjee
For the Petitioner : Mr. Manas Kumar Kundu, Adv.
For SBSTC : Mr. Ayan Banerjee, Adv.
Ms. Debasree Dhamali, Adv.
Heard On : 05.08.2015, 11.12.2015, 08.01.2016,
20.04.2016,
22.04.2016 & 05.05.2016
CAV On : 05.05.2016
Judgment On : 15.09.2016
Arijit Banerjee, J.:-
(1) The petitioner was a conductor in the employment of the
respondent Corporation. In this writ application the petitioner
challenges the order dated 29 March, 2010 placing him under suspension, the charge-sheet dated 30 March, 2010, the enquiry report dated 4 December, 2010, the order of dismissal dated 11 January, 2012 passed by the respondent no. 3 and the order dated 13 May, 2013 passed by the respondent no. 2 being the Appellate Authority confirming the dismissal order. The petitioner prays for reinstatement in service with all consequential benefits.
(2) On 28 March, 2010 the petitioner was on duty in a bus travelling from Purulia to Behrampur. At Bankura the Checking Squad Personnel boarded the said Bus and conducted a surprise inspection. On 29 March, 2010, the members of the said checking squad lodged a complaint with the Divisional Manager, Durgapur Division of the respondent Corporation alleging certain irregularities on the part of the petitioner.
(3) The respondent corporation issued a charge-sheet dated 30 March, 2010 to the petitioner and placed him under suspension. The following charges were levelled against the petitioner:-
i. He collected un-accumulated money from the passengers without issuing any tickets and also tried to cover up the said amount for his personal gain. Such activity is derogatory to the prestige of the corporation. He is charged for violation of provisions 25(1), 25(2) and 25(6) of the SBSTC Employees' Service Regulations, 1987.
ii. He is charged for creating disturbance inside the vehicle and creating obstruction in the process of checking by using filthy and un-parliamentary language, even attempting to assault the checking personnel. He is charged for gross insubordination to the checking personnel and for violating the trust reposed on him as conductor of the vehicle. He is charged for violation of provisions 25(1) and 25(4) if the SBSTC Employees' Service Regulations, 1987.
(4) The petitioner submitted his reply to the charge-sheet on or about 12 April, 2010 denying the allegations made against him. A domestic enquiry was held and the same was concluded on 5 October, 2010. The enquiry officer submitted his report on 4 December, 2010 holding the petitioner guilty of both the charges.
(5) Under cover of a letter dated 8 December, 2010, the Disciplinary Authority forwarded a copy of the enquiry report to the petitioner and called upon the petitioner to submit his representation in respect of the said report, which the petitioner did. By an order dated 11 January, 2012, the Disciplinary Authority terminated the service of the petitioner by way of punishment. The petitioner's appeal against the order of dismissal was dismissed by the Appellate Authority by an order dated 13 May, 2013.
(6) Being aggrieved the petitioner is before this Court.
Contention of the Petitioner:-
(7) Ld. Counsel for the petitioner submitted that the Disciplinary Authority should not have issued the charge-sheet on the basis that the allegations made in the complaint dated 29 March, 2010 filed by the members of the checking squad were sacrosanct. The Disciplinary Authority should have made an investigation as to the correctness of such allegations before issuing the charge-sheet and putting the petitioner under suspension.
(8) In this connection he relied on a decision of the Hon'ble Supreme Court in the case of Krishna Chandra Tandon-vs.-The Union of India, AIR 1974 SC 1589, and in particular on the following observations in paragraph 16 of the judgment:-
"16. ............. It is very necessary for an authority which orders an enquiry to be satisfied that there are prima facie grounds for holding a disciplinary enquiry and, therefore, before he makes up his mind he will either himself investigate or direct his subordinates to investigate in the matter and it is only after he receives the result of these investigation that he can decide as to whether disciplinary action is called for or not. Therefore, these documents of the nature of inter-
departmental communications between officers preliminary to the holding of enquiry have really no importance unless the Enquiry Officer wants to rely on them for his conclusions. In that case it would only be right that copies of the same should be given to the delinquent.................."
(9) Learned Counsel then submitted that the respondent authorities drew up the charge-sheet with a closed and biased mind. The language of the order of suspension and the charge-sheet are indicative of pre-conceived mind-set of the respondents. Further, the fact that the Enquiry Officer was appointed in the charge-sheet itself without awaiting the petitioner's response to the charge-sheet, also demonstrates the closed mind of the management. In this connection learned Counsel relied on the decision in the case of Oryx Fisheries Pvt. Ltd-vs.-Union of India, (2010) 13 SCC 427, wherein at paragraph 31 of the judgment the Hon'ble Apex Court observed that while reading a show-cause notice, the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show-cause notice and prove his innocence. If on a reasonable reading of a show-cause notice a person of ordinary prudence gets the feeling that his reply to the show-cause notice will be an empty ceremony and that he will merely knock his head against the impenetrable wall of prejudged opinion, such a show cause notice does not commence a fair procedure specially when it is issued in a quasi-judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence.
Learned Counsel also relied on a decision of a Division Bench of this Court in the case of Khaitan (India) Ltd.-vs.-Learned Judge, Eighth Industrial Tribunal, 2009 (4) CHN (Cal) 380. In that case, the Court held that the language of the charge-sheet clearly suggested that before holding enquiry, the disciplinary authority had concluded that the concerned employee had committed the offence of theft and the only task that remained was to impose punishment of termination. (10) It was contended by Learned Counsel that the domestic enquiry was conducted in total violation of the principles of natural justice. The enquiry officer relied upon a copy of the general diary lodged with the concerned Police Station without supplying copy thereof to the petitioner. The general diary was not mentioned in the list of documents annexed to the charge-sheet. The second charge was established on the basis of the general diary. This is gross infraction of the rules of natural justice. In this connection, Learned Counsel relied on a decision of the Supreme Court in the case of Pepsu Road Transport Corporation-vs.-Lachhman Dass Gupta, (2001) 9 SCC 523, wherein at paragraph 3 of the judgment the Hon'ble Supreme Court observed that in view of the conclusion of the Lower Appellate Court that the documents relied upon by the Department in establishing the charge have not been given to the delinquent, the conclusion was irresistible that the delinquent had been denied a reasonable opportunity to defend himself in the proceeding, and, therefore, the Lower Appellate Court and the High Court were fully justified in setting aside the order of termination passed by the competent authority.
Learned Counsel also relied on a decision of the Hon'ble Supreme Court in the case of Union of India-vs.-S. K. Kapoor, (2011) 4 SCC 589, wherein the Hon'ble Apex Court observed that the old distinction between a judicial act and an administrative act has withered away and even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. As regards what the phrase 'civil consequence' means, the Hon'ble Apex Court referred to its earlier decision in the case of Mohinder Singh Gill-vs.- Chief Election Commissioner, New Delhi, (1978) 1 SCC 405, wherein it was observed that 'civil consequence' covers infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence.
(11) Learned Counsel then submitted that non-observance of the principles of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. In this connection reliance was placed on a decision of the Hon'ble Supreme Court in the case of S. L. Kapoor-vs.-Jagmohan, (1980) 4 SCC 379, wherein at paragraph 24 of the judgment the Hon'ble Apex Court observed that the principles of natural justice know of no exclusionary rule depending on whether it would have made any difference if natural justice had been observed. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue a writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs.
Learned Counsel also relied on a decision of the Hon'ble Supreme Court in the case of Union of India-vs.-Prakash Kumar Tandon, (2009) 2 SCC 541, wherein at paragraph 17 of the judgment the Hon'ble Apex Court observed that if the disciplinary proceedings have not been fairly conducted, an inference can be drawn that the delinquent officer was prejudiced thereby.
(12) Learned Counsel then submitted that other prosecution witnesses were allowed to be present in the enquiry room when the chief prosecution witness Mr. Ghosal deposed. This is improper and impermissible. Further, it would appear from the records of the enquiry proceeding that the Enquiry Officer cross-examined the main prosecution witness Mr. Ghosal and also the petitioner. Thus, the Enquiry Officer acted as prosecutor. He further submitted that the Enquiry Officer did not consider the defence of the petitioner in any manner whatsoever. The Enquiry Officer took the allegations to be true without assigning any reason therefor and this is not acceptable in law. In this connection, Learned Counsel relied on a decision of the Hon'ble Supreme Court in the case of Anant R. Kulkarni-vs.-Y.P. Education Society (2013) 6 SCC 515, wherein at paragraph 17 of the judgment it was observed as follows:-
"17. The purpose of holding an enquiry against any person is not only with a view to establish the charges levelled against him or to impose a penalty, but is also conducted with the object of such an enquiry recording the truth of the matter, and in that sense, the outcome of an enquiry may either result in establishing or vindicating his stand, and hence result in his exoneration. Therefore, fair action on the part of the authority concerned is a paramount necessity."
(13) The next point urged by Learned Counsel was that the enquiry proceedings suffered from violation of Regulation 38(1) of the SBSTC Employees' Service Regulation, 1987 as it does not contain a sufficient record of the evidence and a statement of findings and the grounds thereof. The enquiry report suffered from perversity and is based purely on surmises and conjectures. In this connection he relied on the following three decisions of the Hon'ble Apex Court:-
(i) Roop Singh Negi-vs.-Punjab National Bank, (2009) 2 SCC 570.
At paragraph 14 of the judgment it was observed that a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The Enquiry Officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. At paragraph 23 of the judgment the Hon'ble Apex Court observed as follows:-
"23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."
(ii) Narinder Mohan Arya-vs.-United India Insurance Co. Ltd., (2006) 4 SCC 713. Learned Counsel relied on paragraph 26 of the judgment which is set out hereunder:-
"In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction of a civil court, it was entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, 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 is not permitted to collect any material from outside sources during the conduct of the enquiry. [See State of Assam & Anr. V. Mahendra Kumar Das & Ors.[ (1970) 1 SCC 709 : AIR 1970 SC 1255] (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice [See Khem Chand V. Union of India & Ors., AIR 1958 SC 300 and State of Uttar Pradesh v. Om Prakash Gupta, (1969) 3 SCC 775]. (3) Exercise of discretionary power involves 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. [See K.L. Tripathi V. State of Bank of India & Ors. [(1984) 1 SCC 43 : AIR 1984 SC 273]. (4) It is not possible to lay down any rigid rules of the principles of natural justice which depends on the facts and circumstances of each case but the concept of fair play in action is the basis. [See Sawai Singh V. State of Rajasthan [ AIR 1986 SC 995] (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.
[See Director (Inspection & quality Control) Export Inspection Council of India & Ors. Vs. Kalyan Kumar Mitra & Ors. [ 1987 (2) CLJ 344]. (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. [See Central Bank of India Ltd. V. Prakash Chand Jain, AIR 1969 SC 983, Kuldeep Singh v.
Commissioner of Police and Others, (1999) 2 SCC 10]." At paragraph 44 of the judgment the Hon'ble Apex Court observed that the Writ Court should bear in mind the distinction between some evidence and no evidence and the question that is required to be posed is whether some evidence adduced would lead to the conclusion as regards the guilt of the delinquent officer or not. The evidence adduced on behalf of the Management must have nexus with the charges.
(iii) State of Uttar Pradesh-vs.-Saroj Kumar Sinha, (2010) 2 SCC
772. The Hon'ble Supreme Court observed that an Enquiry Officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority. His function is to examine the evidence presented by the department even in the absence of the delinquent officer to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. The departmental enquiry has to be conducted in accordance with the rules of natural justice. The enquiry proceedings cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done.
(14) The next submission of Learned Counsel was that the Disciplinary Authority while forwarding the copy of the enquiry report to the petitioner did not furnish any document relied on by the Enquiry Officer. This was also violation of principles of natural justice. In this connection, he relied on a decision of the Hon'ble Supreme Court in the case of State of Uttarnchal-vs.-Kharak Singh, (2008) 8 SCC 236. At paragraph 15 (iv) of the judgment the Hon'ble Supreme Court observed that on receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied upon by the Enquiry Officer to the charge-sheeted officer to enable him to offer his views.
(15) Mr. Manas Kumar Kundu, Learned Counsel, then submitted that the order of the Disciplinary Authority is not sustainable also because he did not assign any reason for agreeing with the finding of the Enquiry Officer. In this connection he relied on the following four decisions of the Hon'ble Supreme Court:-
(i) B.A. Linga Reddy-vs.-Karnataka State Transport Authority, (2015) 4 SCC 515. The Hon'ble Apex Court, at paragraphs 18 and 20 of the judgment, referred to its earlier decisions in the cases of Siemens Engineering and Manufacturing Co. of India Ltd.-vs.-Union of India ((1976) 2 SCC 981) and Krishna Swami-vs.-Union of India ((1992) 4 SCC 605) wherein it had been held that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law. If a statutory or public authority/functionary does not record the reasons, its decision would be rendered arbitrary, unfair, unjust and violative of Arts. 14 and 21 of the Constitution.
Reasons are the links between material, the foundation for their erection and the actual conclusions. This would also demonstrate how the mind of the maker was activated and actuated and the rational nexus and synthesis with the facts considered and the conclusions reached.
(ii) Oryx Fisheries Pvt. Ltd.-vs.-Union of India (supra). Learned Counsel relied on paragraph 40 of the judgment which is set out hereunder:-
"40. In M/s Kranti Associates (supra), this Court after considering various judgments formulated certain principles in para 51 of the judgment which are set out below: (SCC pp. 510-12) 'a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
b. A quasi-judicial authority must record reasons in support of its conclusions.
c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi- judicial or even administrative power.
e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.
f. Reasons have virtually become an indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
g. Reasons facilitate the process of judicial review by superior Courts.
h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice. i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
j. Insistence on reason is a requirement for both judicial accountability and transparency.
k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process.
m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737).
n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".
o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".'"
(iii) Mohd. Yunus Khan-vs.-State of Uttar Pradesh, (2010) 10 SCC
539. At paragraph 16 of the judgment the Hon'ble Apex Court observed that though the technical rules of procedure contained in the Code of Civil Procedure, 1908 and the provisions of the Evidence Act, 1872 do not apply in a domestic enquiry, however, the principles of natural justice are required to be observed strictly. The enquiry is to be conducted fairly and reasonably and the enquiry report must contain reasons for reaching the conclusion that the charge framed against the delinquent stood proved against him.
(iv) Ram Phal-vs.-State of Haryana, (2009) 3 SCC 258. The Hon'ble Supreme Court was hearing a special leave petition preferred against an order passed by the High Court in a writ petition which apparently was an unreasoned order. The Hon'ble Apex Court observed that the duty to give reasons for coming to a decision is of decisive importance which cannot be lawfully disregarded. The giving of satisfactory reasons is required by the ordinary man's sense of justice and also a healthy discipline for all those who exercise power over others.
Reason is the heartbeat of every conclusion. Without the same, it becomes lifeless.
(16) Learned Counsel then submitted that it was not mentioned either in the charge-sheet or even in the second show-cause notice that the past record of the petitioner would be considered. As such, by referring to and taking into account the past record of the petitioner, the respondents committed a grave error of law. In this connection Learned Counsel relied on a decision of the Hon'ble Supreme Court in the case of The State of Mysore-vs.-K. Manche Gowda, AIR 1964 SC
506. At paragraph 7 of the judgment it was observed that a Government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive. It is necessary that he must be told of the grounds on which it is proposed to take such action. If the grounds are not given in the notice, it would be impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment. If the proposed punishment was mainly based upon the previous record of a Government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the knowledge of the Government servant. It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him.
Learned Counsel also relied on the case of Mohd. Yunus Khan- vs.-State of Uttar Pradesh (supra) wherein at paragraph 34 of the judgment, the Hon'ble Supreme Court observed that if the disciplinary authority wants to consider the past conduct of the employee in imposing punishment, the delinquent is entitled to notice thereof and generally the charge sheet should contain such an article or at least he should be informed of the same at the stage of the show-cause notice, before imposing on him the punishment.
(17) Learned Counsel then submitted that the order of the Appellate Authority is also unsustainable as it is a cryptic order without assigning any reason and had taken into consideration the past record of the petitioner.
(18) Learned Counsel finally relied on a decision of the Hon'ble Supreme Court in the case of Mathura Prasad-vs.-Union of India, (2007) 1 SCC 437, and in particular para 19 of the judgment in support of his contention that when an employee, by reason of an alleged act of misconduct, is sought to be deprived of his livelihood, the procedures laid down under the Service Rules are required to be strictly followed. If a statutory authority uses its power in a manner not provided for in the statute or passes an order without application of mind, judicial review would be maintainable. Even an error of fact for sufficient reasons may attract the principles of judicial review. (19) On the basis of the aforesaid submission learned Counsel prayed for quashing of the order of dismissal of the petitioner and for an order of reinstatement.
Contention of the respondents:-
(20) Learned Counsel for the respondents submitted that to ascertain whether or not the Disciplinary Authority has proceeded with a closed and biased mind, the conduct of the entire disciplinary proceeding has to be looked into. The finding of bias cannot be inferred from the language of the charge-sheet. In the present case, all the requirements for conducting a fair disciplinary proceeding have been followed. After issuance of the charge-sheet, several notices for hearing were issued to the petitioner. Issuance of multiple notices even on the absence prayer for adjournment clearly shows that the Disciplinary Authority provided full opportunity of hearing to the petitioner. The disciplinary proceeding was conducted by scrupulously observing the principles of natural justice and without any bias. In this connection learned Counsel relied on the following two decisions:-
(i) Kalipada Roy-vs.-The District Controller of Food & Supplies, Hooghly, 1983 (2) CHN (306). At paragraph 4 of the judgment a learned Judge of this court observed as follows:-
"4. The finding of bias in issuing a charge sheet cannot be found a priori from the mere language used. The said question is to be decided in the light of the relevant disciplinary rules and the facts and circumstances of each particular case. Merely because in compliance with the disciplinary rules the substance of the imputations have been definitely and distinctly set out, the court cannot straightaway infer the disciplinary authority was biased. The entire facts and circumstances ought to be considered to decide whether the delinquent officer could reasonably apprehend that a bias on the part of disciplinary authority had operated in issuing the charge sheet. I am not prepared to hold that even in the absence of any other evidence regarding the conduct and the state of mind of the disciplinary authority prior to or attendant upon the issue of the charge sheet, the court from the mere language used in the charge sheet could infer that there was any reasonable basis for the apprehension that the disciplinary authority had already made up its mind and it would not be able to act impartially, objectively and without bias."
(ii) Nripendra Nath-vs.-Union of India, 1981 (1) SLR 533. At paragraph 6 of the judgment, G. N. Roy, J. (as His Lordship then was) observed, inter alia, as follows:-
"6. After considering the respective submissions made by the learned Counsel appearing for the parties it appears to me that the charge sheet as framed against the petitioner has not been vitiated on the ground of bias and/or closed mind. After-all to avoid any vagueness in the charge sheet the authorities must clearly state the imputations against the Delinquent and pin-point the commission of any alleged offence and/or dereliction in duty. In my view, it will not be proper to consider the charge-sheet in a hyper critical manner. The real pith and substance of the charge sheet is to be looked into dispassionately in order to find out whether the Disciplinary Authority is really proceeding or not with absolutely a closed mind against the Delinquent. A bare statement that the Delinquent is guilty of the charges will not ipso facto establish closed mind. In my view, Mr. Das is justified in his contention that the charge sheet read with Memorandum makes it clear that the allegations were stated and on the basis of the allegations the charges were framed and the allegations on the face showed that the petitioner was guilty of the said charges. But the said documents do not establish that Disciplinary Authority had absolutely made up his mind about the guilt of Delinquent......................"
(21) Learned Counsel then submitted that an Enquiry Officer can be appointed in the charge-sheet itself and that per se does not indicate any closed mind on the part of the Disciplinary Authority. In this connection, reliance was placed on a decision of the Hon'ble Supreme Court in the case of South Bengal State Transport Corporation-vs.- Ashok Kumar Ghosh, (2010) 11 SCC 71. At paragraph 13 of the judgment, the Hon'ble Apex Court observed that as an absolute proposition of law it cannot be said that before initiating the departmental enquiry or appointing an enquiry officer, reply of the delinquent employee is required to be obtained and considered unless it is the requirement of the rules. There may be cases where the charges are of such a nature that the disciplinary authority may not require any reply from the delinquent employee but straightaway initiate the departmental enquiry and appoint an enquiry officer. (22) Learned Counsel referred to Regulation 38 of the SBSTC Employees' Regulations which is as follows:-
"R.38. No order of dismissal, removal or reduction shall be passed on an employee of the Corporation (other than an order based on facts which led to conviction in a criminal court) unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing order on the case. He shall be required to, within reasonable time to a written statement of his defence and to state whether he desires to be heard in person. If he do desires or if the authority to directs, an oral enquiry shall be held. At that enquiry oral evidences shall be heard as to such of the allegations as are not admitted and the person charged shall be entitled to cross-examine the witness called, as he may wish provided that the officer conducting the enquiry may for the special and sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and grounds thereof."
Learned Counsel submitted that as per this Regulation the action of the respondents do not stand invalidated solely on the ground of appointment of the Enquiry Officer before receiving the response or explanation of the petitioner in respect of the charge sheet issued to him. This is not a case where allegations against the petitioner are vague or in undefined form and to make specific charge against the petitioner further information or response from the petitioner was unnecessary.
(23) Learned Counsel next submitted that non-supply of a document does not ipso facto vitiate the disciplinary proceeding. The aggrieved employee has to plead and prove that the alleged non-supply has caused actual prejudice to the defence of the petitioner. In the present case, the General Diary was disclosed in the presence of the petitioner by the prosecution witness and the petitioner appended his signature at the bottom of the note-sheet. The petitioner never asked for a copy of the General Diary in course of the enquiry proceeding. In his reply to the enquiry report he did not ask for a copy of the General Diary. In the appeal preferred before the Managing Director also the petitioner did not ask for a copy of the same. In the writ petition also the petitioner has not pleaded any real prejudice by reason of non-supply of the General Diary. Hence, mere allegation of non-supply of the General Diary for the first time in the writ petition without pleading and proof of real prejudice shall not vitiate the disciplinary proceeding. In this connection, learned Counsel relied on a decision of the Supreme Court in the case of State of U. P.-vs.- Ramesh Chandra Mangalik, AIR, 2002 SC 1241. At paragraphs 11 and 12 of the judgment, the Hon'ble Supreme Court referred to its earlier decisions in the cases of Chandrima Tewari-vs.-Union of India, (1987 (supp.) SCC 518), State of Tamil Nadu-vs.-Thiru K. V. Perumal ((1996) 5 SCC 474) and State of U.P.-vs.-Harendra Arora ((2001) 6 SCC 392) and observed that the obligation to supply copies of documents is confined only to material and relevant documents which may have been relied upon in support of the charges. It is for the delinquent to show the relevance of a document. Prejudice caused by non-supply of such a document has also to be seen. A delinquent must show the prejudice caused to him by non-supply of copy of document where order of punishment is challenged on that ground. (24) Mr. Ayan Banerjee, Learned Counsel then submitted that the allegation that the Enquiry Officer acted as management's representative is without any basis. The records of the proceeding would reveal that the Enquiry Officer put questions to both sides which is permissible under Sec. 165 of the Indian Evidence Act. The prosecution witnesses deposed in chief in the same line on the same day to which there is no bar. It is not the case of the petitioner that one witness was cross-examined in the presence of other witnesses and hence the allegation is misconceived. There is no bar in the presence of other witnesses during examination in chief of a witness. (25) In so far as the order of punishment is concerned, Learned Counsel submitted that the same contains sufficient reasons to justify imposition of penalty of removal from service. Charges against the petitioner are lack of due devotion to duty, acts of insubordination and attempt to make illegal gain out of the sale proceeds of tickets. In the order of removal, the Disciplinary Authority has mentioned the specific charges, the specific acts of the petitioner which established the charges and the reasons for his agreeing with the findings of the Enquiry Officer. The Disciplinary Authority has also dealt with the specific points urged by the petitioner in his reply to the enquiry report and has given reasons for not accepting such contentions. Hence, the order of dismissal cannot be said to be vitiated for want of reasons.
(26) Learned Counsel finally submitted that it is a fact that while imposing order of punishment, Disciplinary Authority has considered the past conduct of the petitioner. The petitioner has been punished on several occasions, in connection with the same charges of insubordination, shortfall against sale proceeds, etc. The petitioner was censured on several occasions, his pay was reduced, his annual increment was withheld. In spite of that he did not rectify himself. He is a habitual offender which is reflected from the records. Though it is a settled proposition of law that past conduct should not be ordinarily considered unless it forms a part of the charge-sheet, however, in cases of grave and serious nature past conduct may be considered while deciding what punishment is to be imposed on a delinquent employee. There have been nine proceedings against the petitioner including the present proceeding and hence, he can be easily termed as habitual offender. The High Court as well as the Hon'ble Supreme Court have repeatedly stated that habitual offenders, should not be shown any leniency on any technical ground. In this connection, learned Counsel relied on the following two decisions of the Hon'ble Apex Court:-
(i) Union of India-vs.-Bishamber Das Dogra, (2009) 13 SCC 102. At paragraph 30 of the judgment, after referring to its earlier decisions, the Hon'ble Supreme Court held that it is desirable that the delinquent employee may be informed by the Disciplinary Authority that his past conduct would be taken into consideration while imposing the punishment. But in case of misconduct of grave nature or indiscipline, even in the absence of statutory rules, the authority may take into consideration the indisputable past conduct/service record of the employee for adding weight to the decision of imposing the punishment if the facts of the case so warranted.
(ii) Mohd. Yunus Khan-vs.-State of Uttar Pradesh (supra). In this case, the Hon'ble Supreme Court at paragraph 35 of the judgment relied on its decision in the case of Union of India-vs.-Bishamber Das Dogra (supra).
(27) On the basis of the aforesaid submissions, Ld. Counsel prayed for dismissal of the writ petition.
Court's View:
(28) The petitioner has challenged the charge-sheet, the enquiry report, the order of dismissal and the Appellate Authority's order on very many grounds. I propose to take the grounds one after the other in seriatim and express my opinion on the same.
(29) The petitioner's first contention is that before issuing the charge-
sheet and putting the petitioner under suspension the disciplinary authority should have investigated into the correctness of the allegations on the basis whereof the charge sheet was proposed to be issued. In my opinion, there is no such requirement in law nor in the concerned service regulations. The Checking Squad is constituted for the purpose of conducting surprise checks in the State Transport Corporation buses to find out if any irregularity is being committed by the conductors. In the present case, the Checking Squad personnel in their report to the Divisional Manager of the respondent corporation stated that the petitioner was found to be indulging in financial irregularity as also obstructing the process of surprise checking. This, in my opinion, was sufficient ground for the Divisional Manager to issue the charge-sheet in question and place the petitioner under suspension. The Supreme Court decision in Krishna Chandra Tandon (supra) does not lay down any law to the effect that before issuing a charge-sheet the Disciplinary Authority must hold a preliminary investigation as to the correctness or otherwise of the allegations forming the basis of the charge-sheet. Allegations made in the report/complaint of the Checking Squad personnel were prima facie grounds for holding a disciplinary enquiry. Further, in appropriate cases like the present case, there is no need for the Disciplinary Authority to wait for the response of the delinquent employee to the charge-sheet before appointing the Enquiry Officer. Hence, I find no merit in this contention of the petitioner.
(30) The second point urged by the petitioner is that the language of the charge-sheet shows that the respondents proceeded in the matter with a closed mind and they were biased against the petitioner. It is true, as observed by the Hon'ble Apex Court in the case of Oryx Fisheries Pvt. Ltd. (surpa) and by our Division Bench in the case of Khaitan (India) Ltd. (supra) that the language of a charge-sheet should not give the impression that the enquiring authority has already formed an opinion about the quilt of the charge-sheeted employee. The language of a charge-sheet or of a show cause notice must not be such that the person to whom it is issued would feel that the enquiry would be only an eye-wash and the enquiring authority had already made up its mind against him. However, in my opinion, the language of the charge-sheet issued to the petitioner does not disclose any such biased or closed mind of the Disciplinary Authority. A charge-sheet has to be read as a whole and a word or a phrase or a sentence cannot be relied upon out of context to contend that the charge-sheet is indicative of bias on the part of the Disciplinary Authority. In the present case, the charge-sheet read as a whole clearly indicates that the allegations made therein were merely 'charges' and 'allegations'. The charges were to be tried at the enquiry proceeding and for that purpose the Enquiry Officer was appointed. As held by this Court in the case of Nipendra Nath (supra), a bare statement in the charge- sheet that the delinquent is guilty of the charges will not ipso facto establish closed mind. A charge-sheet should not be considered in a hyper-technical or hyper-critical manner. Hence, the second contention of the petitioner also fails.
(31) Thirdly, it was argued by Learned Counsel for the petitioner that the domestic enquiry was conducted in violation of the principles of natural justice inasmuch as copy of the general diary lodged with the concerned Police Station, on which the presenting officer relied was not supplied to the petitioner nor was the same mentioned in the list of documents annexed to the charge-sheet. It cannot be disputed that if a document is relied upon by the Management and/or the Enquiry Officer without supplying a copy thereof to the charge-sheeted employee, the same would constitute infraction of the rules of natural justice. It is also trite law that even a quasi-judicial or administrative order which has civil consequences must be made in consonance with the principles of natural justice. I am also conscious that the Hon'ble Supreme Court in the case of S.L. Kapoor (supra) observed that compliance with the principles of natural justice does not depend on whether it would have made any difference if rules of natural justice had been observed. It does not lie in the mouth of an authority denying natural justice to a person to contend that such denial has not caused any prejudice to that person. Further, where a Disciplinary Authority has not been conducted fairly, an inference can be drawn that the concerned employee suffered prejudice thereby and actually prejudice need not be established by him.
However, in the present case, the general diary was submitted to the Enquiry Officer in the presence of the petitioner but he never asked for a copy thereof. While replying to the enquiry report or in his appeal filed before the Managing Director also, the petitioner did not ask for a copy of the general diary. In the writ petition also, the petitioner has not made out any case of he having suffered any prejudice for non-supply of the copy of the general diary to him. As I have understood the law laid down by the Hon'ble Apex Court, inter alia, in the cases of State of UP-vs.-Ramesh Chandra Mangalik (supra), Chandrima Tewari-vs.-Union of India (supra), State of Tamil Nadu-vs.-Thiru K. V. Perumal (supra) and State of UP-vs.-Harendra Arora (supra), where an order of punishment is challenged on the ground of non-supply of a copy of a document, the delinquent employee must not only establish the relevance of the document but also the prejudice caused to him by such non-supply of the document. In the present case, no such prejudice has been established by the petitioner. The general diary contained the same charges as were contained in the charge-sheet and in my view supply of the copy of the general diary to the petitioner would not have made any difference to the Enquiry Officer's report. Hence, the third contention of the petitioner is also rejected.
(32) The next point urged on behalf of the petitioner is that the Enquiry Officer did not give any reasons for holding the petitioner guilty of the charges levelled against him and merely accepted the charges to be correct without application of mind. I am unable to accept this contention. Law is well-settled that an Enquiry Officer performs a quasi-judicial function. His findings must be informed with reasons. He must afford full opportunity to the delinquent employee to defend himself and must conduct the enquiry proceeding in a fair and impartial manner not in the least being influenced by the fact that he is an employee of the company. The findings of the Enquiry Officer must be based on admissible evidence and not on mere assertions or conjectures or surmises. These principles of law have been reiterated by the Hon'ble Apex Court in the cases of Roop Singh Negi (supra), Narinder Mohan Arya (supra) and State of UP-vs.-Saroj Kumar Sinha (supra). In the present case, I have gone through the enquiry report and I am unable to hold that the findings of the Enquiry Officer are unsupported by reasons or based on no evidence at all. An Enquiry Officer in a domestic enquiry is not expected to write a judgment like a Judicial Officer. Moreover, he must indicate, even if in brief, the reasons which have prompted him to come to a particular finding. This the Enquiry Officer has done in the present case. However, one has to bear in mind the difference between inadequate evidence and no evidence at all. While a finding on the basis of no evidence at all would be perverse and warrant interference by the Writ Court, if there is some evidence to support the finding of the Enquiry Officer, the Writ Court will generally not interfere and will not go into the question of sufficiency of evidence. In the present case, it cannot be said that the conclusions of the Enquiry Officer are based on no evidence at all. Hence, the fourth ground of challenge agitated on behalf of the petitioner also fails.
(33) The fifth point urged on behalf of the petitioner is that while forwarding a copy of the enquiry report to the petitioner for his comments, the Disciplinary Authority did not supply all connected materials relied upon by the Enquiry Officer. This point also does not have much merit. Admittedly copy of the enquiry report was sent to the petitioner for his comments and he duly made his representation in respect of such enquiry report. He did not raise any contemporaneous objection that any relevant document was not supplied to him. Even before the Appellate Authority this point was not urged. Accordingly, in my view, this contention is an afterthought and is rejected. (34) I also cannot agree with the next contention urged on behalf of the petitioner that the Disciplinary Authority did not assign any reason for agreeing with the finding of the Enquiry Officer. In his order, the Disciplinary recorded that he examined all the statements recorded by the Enquiry Officer during the enquiry proceeding. He clearly appears to have applied his mind independently to the facts and evidence on record in agreeing with the finding of the Enquiry Officer. In my opinion, it is not necessary for the Disciplinary Authority to record in his order a detailed analysis of the evidence adduced before the Enquiry Officer nor is it necessary for him to write a detailed judgment. It is sufficient that the Disciplinary Authority considers the Enquiry Officer's report and the delinquent employee's comments on the same with open mind in coming to his conclusion. This has been done by the Disciplinary Authority in the present case and it cannot be said that his order is arbitrary or constitutes a mere rubber stamp blindly adopting the report of the Enquiry Officer. (35) The penultimate point raised by the petitioner is that by referring to and taking into consideration the past conduct of the petitioner in imposing punishment, the Disciplinary Authority and the Appellate Authority have both committed an error of law rendering their decisions legally unsustainable. It is true that both the said authorities have considered the past record of the petitioner. The Disciplinary Authority in his order stated that from the petitioner's past conduct it was found that he was severely punished for committing offence several times but he did not rectify himself. The Appellate Authority in his order recorded that the petitioner has a long history of similar mal-practices for which he has been penalized in the past. In my view, taking into account the past record of a delinquent employee while imposing punishment when he was found guilty of the offences he is charged with, is not impermissible under all circumstances. It is important to note that the past record of the petitioner was not a factor which the Enquiry Officer took into account while holding that the charges against the petitioner have been established. Similarly, while upholding the Enquiry Officer's report, the track record of the petitioner did not weigh with the Disciplinary Authority. It was only while deciding on the punishment to be imposed, the petitioner's past record was considered. Where the charges are of a grave nature, it is permissible to take into account the past history of the delinquent employee for the purpose of deciding what punishment should be imposed on him. The petitioner had been punished on several occasions before with regard to the charge of insubordination, short-fall against sale proceeds etc. and the same does not appear to have deterred the petitioner from committing the same wrongful acts again and again. Charges of financial irregularity/impropriety and insubordination are charges of grave nature and presence of an employee who repeatedly commits such wrongful acts is detrimental to the functioning of an organization. Such an employee must not be shown any leniency and it is permissible for the Disciplinary Authority to consider his past conduct for the purpose of deciding the nature and degree of punishment to be imposed on such delinquent employee. In this connection, reference may be had to the Hon'ble Supreme Court decisions in the cases of Union of India-vs.-Bishamber Das Dogra (supra) and Mohd. Yunus Khan-vs.-State of Uttar Pradesh (supra). The punishment of termination of service, in my opinion, is not too harsh and is quite apt for an employee who is a habitual offender having no remorse and showing no intention of mending his ways. Continuance of such an employee in an organization would be harmful to the work ethos and discipline in the organization and showing any kind of indulgence or mercy to such an employee would send a wrong signal to the other employees of the organization. Hence, this point of the petitioner also stands rejected.
(36) The final point argued by Learned Counsel for the petitioner is that the Appellate Authority has not assigned any reason for dismissing the appeal and such an order is not tenable in law. It is true that the Appellate Authority's order is a short order. But it appears from the said order that he has gone through the records of the case and has heard the petitioner in person. He has indicated that there is enough evidence on record to prove the charges against the petitioner. As indicated above, an Appellate Authority's order need not be like a judgment written by a Judicial Officer and one cannot lay down any rule as to how detailed the order should be. In my opinion, it is sufficient if the order reveals that the authority has considered the materials on record and has applied his mind independently. These requirements are satisfied in the present case.
(37) Hence, I am unable to accept any of the grounds of challenge urged by Learned Counsel for the petitioner. Before concluding I should recount the cardinal principles of judicial review. When an action or an order of the State or other authority within the meaning of Art. 12 of the Constitution is challenged before the Writ Court, what is under scrutiny before the Court is not the action or the decision itself but the process or the procedure followed by the authority which culminated in the impugned action or decision. As is often said, a Court exercising the power of judicial review is not concerned with the merits of a decision but with the decision making process. In so far as disciplinary proceedings are concerned, so long as the proceedings are conducted in consonance with the principles of natural justice and the charge-sheeted employee is given sufficient opportunity of defending himself and a fair hearing, the Writ Courts normally would not interfere with such proceedings or punishment imposed by the Disciplinary Authority subject of course, to the question of proportionality. The Writ Court does not exercise appellate jurisdiction and would not ordinarily touch the findings of an enquiry proceeding unless the same is based on no evidence at all or is otherwise perverse so as to shock judicial conscience. In my opinion, no ground for interfering with the disciplinary proceeding or the orders of the Disciplinary Authority and the Appellate Authority exists in the present case.
(38) In view of the aforesaid, this writ petition fails and is dismissed. However, there will be no order as to costs.
(39) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities. (Arijit Banerjee, J.)