Calcutta High Court (Appellete Side)
Krishna Choudhury vs The State Of West Bengal & Ors on 1 October, 2010
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Md. Abdul Ghani
W.P.S.T. 300 of 2010
Krishna Choudhury
Versus
The State of West Bengal & Ors.
For the Appellant : Mr. Kashi Kanta Moitra,
Mr. Arup Kr. Lahiri,
Ms. Bhaskar Prasad Vaisya.
For the State-respondents : Mr. Pratik Dhar,
Ms. Jayeeta Ckakroborty.
Heard On: 16.09.2010 & 17.09.2010
Judgment On: 01.10.2010.
PRANAB KUMAR CHATTOPADHYAY, J.
The petitioner herein has filed the original application before the West Bengal Administrative Tribunal challenging
initiation of the disciplinary proceedings on the ground that all 2 the charges levelled against the said petitioner and mentioned in the charge-sheet are vague, uncertain and exhibit closed and biased mind of the disciplinary authority. It has been specifically alleged on behalf of the petitioner that the disciplinary authority issued the charge-sheet in pre-determined manner exhibiting utter bias against the said petitioner in violation of the principles of natural justice and procedural justice.
The petitioner also specifically alleged before the learned Tribunal that the disciplinary authority while framing the charges against the petitioner prejudged the issues. The Learned Tribunal upon considering the grievances of the petitioner did not pass any order staying the continuation of the departmental proceedings but directed the disciplinary authority not to pass any final order without the leave of the said Tribunal.
Subsequently, the matter again came up before the learned Tribunal for further consideration when a direction was issued to the disciplinary authority to complete the departmental proceeding and pass the final order. The petitioner was also granted liberty to challenge said final order before the learned Tribunal by filing a supplementary affidavit in connection with the pending application.
Ultimately, the final order was passed by the disciplinary authority which was challenged by the petitioner before the learned Tribunal by filing a supplementary affidavit in connection with the pending application in view of the liberty granted earlier by the said learned Tribunal. 3
The learned Tribunal thereafter, finally disposed of the pending application by directing the disciplinary authority to implement the final order after a specified time period in order to enable the petitioner to prefer an appeal before the Appellate Authority and also to grant an opportunity to the Appellate Authority to decide the said appeal.
The petitioner herein instead of preferring an appeal before the Appellate Authority filed the present writ petition assailing the aforesaid judgment and order passed by the learned Tribunal.
Mr. Kashi Kanta Moitra, learned Senior Counsel representing the petitioner submitted that the charges levelled against the writ petitioner clearly demonstrate the pre-determined biased and closed mind of the disciplinary authority. Mr. Moitra further submitted that the charges are couched in such language which speaks of closed mind of the disciplinary authority apart from the fact that the said charges are vague and not specific.Mr. Moitra also submitted that the closed and biased mind of the disciplinary authority would appear from the comments and observations made by the said disciplinary authority while framing the charges against the petitioner.
It has been submitted by the learned Senior Counsel of the petitioner that the disciplinary authority had made up its mind at the very inception and therefore, exhibited the biased attitude towards the petitioner by expressing prejudged opinions and observations against the petitioner while framing the charges. The learned Senior Counsel of the petitioner submitted that the disciplinary authority virtually held the petitioner guilty at the time of issuing the charge-sheet which would appear from the various comments made by the disciplinary authority in respect of the petitioner in the said charge-sheet.
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Mr. Pratik Dhar, Learned Counsel of the State-respondents, submitted that a charge-sheet has to be construed in a reasonable manner. According to the learned Counsel of the State- respondents, unhappy expressions and/or words used in the charge-sheet cannot be regarded as the out-come of closed and pre-judged mind of the disciplinary authority without considering other relevant factors. Mr. Dhar also submitted that the closed and pre-judged mind of the disciplinary authority cannot be comprehended only from the language and/or expressions used in the charge- sheet. Mr. Dhar referred to and relied on the decision of the Learned Single Judge of this Court in the case of Vivekananda Halder vs. State of West Bengal & Ors. reported in (2009) 4 CAL LT 359 (HC).
The Learned Senior Counsel of the petitioner submitted that the vital witnesses like the mother of the petitioner, Smt. Ananda Moyee Choudhury, another lady Smt. Kakoli Nath and M.L.A., Rabin Deb were not examined although their names were specifically mentioned in the charge-sheet. The Enquiry Officer, according to the learned Senior Counsel of the petitioner, conducted the departmental enquiry in an irregular manner and specially in absence of the presenting officer. The learned Senior Counsel of the petitioner also submitted that the Enquiry Officer completed the enquiry without recording the evidence of the aforesaid vital witnesses viz. the mother of the petitioner, Smt. Ananda Moyee Choudhury, Smt. Kakoli Nath and M.L.A. Rabin Deb.
Mr. Moitra further submitted that the Enquiry Officer committed a serious mistake by not recording the evidence of the aforesaid vital witnesses and therefore, no reliance can be placed on the said enquiry report submitted by the enquiry officer. It has also been submitted that no 5 presenting officer was appointed by the disciplinary authority and the Enquiry Officer virtually acted as presenting officer while conducting the departmental enquiry. According to Mr. Moitra, said Enquiry Officer took the role of Prosecutor and Judge by discharging the duty of the presenting officer while acting as the Enquiry Officer. The learned Senior Counsel of the petitioner submitted that the enquiry proceeding was vitiated in the instant case on account of the aforesaid act of the Enquiry Officer.
Mr. Moitra, referred to and relied upon a decision of the Supreme Court in the case of State of Uttar Pradesh & Ors. vs. Saroj Kumar Sinha reported in (2010) 2 SCC 772 (Paragraphs 26 & 28).
Mr. Moitra submitted that there is no finding of the enquiry officer regarding involvement or linkage of the petitioner in relation to the alleged misconduct mentioned in the charge-sheet.
Mr. Moitra very strongly urged before this Court that the Enquiry Officer failed to take note of the fact that the complaint made against the petitioner by Jai Prakash Agarwal was subsequently withdrawn. According to the learned Senior Counsel of the petitioner, if the complaint is withdrawn then whatever has been stated in the complaint also stands withdrawn. Mr. Moitra submitted that after withdrawal of the complaint by the complainant Jai Prakash Agarwal, nothing remained for enquiry since all the charges based on the aforesaid complaint stood withdrawn, upon withdrawal of the complaint by the complainant. Mr. Moitra referred to and relied on a decision of the Supreme Court in the case of S.B.P. and Company vs. Patel Engineering Limited and another reported in (2009) 10 SCC 293 (Paragraph 43).
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Mr. Dhar, learned Counsel representing the State-respondents submitted that the mother of the petitioner was not made one of the witnesses and, therefore, question of recording her evidence by the Enquiry Officer did not arise. Mr. Dhar further submitted that sufficient materials were collected during the enquiry and relied upon in order to prove the charges levelled against the petitioner. Mr. Dhar also submitted that the petitioner herein did not produce his mother Smt. Ananda Moyee Choudhury, as defence witness on account of her ill health. The said petitioner also ultimately, refused to produce another defence witness, namely, his wife.
It has been submitted on behalf of the State-respondents that there has been proper application of unbiased mind on the part of the Enquiry Officer. According to the learned Counsel of the State-respondents, said Enquiry Officer arrived at the just and proper conclusion at the end of the enquiry proceeding upon considering the relevant materials on record and properly appreciating the evidence adduced by the witnesses.
Mr. Dhar categorically submitted that the withdrawal of complaint by Sri Jaiswal had no effect in the departmental proceeding initiated against the petitioner as according to the learned Counsel of the State-respondents, charges were not framed on the basis of the complaint of Said Sri Jaiswal. Mr. Dhar submitted that the charges have been proved independently on the basis of the materials and evidence on records.
On examination of the records we find that vital witnesses namely, mother of the petitioner Smt. Ananda Moyee Choudhury, Smt. Kakoli Nath and Sri. Robin Deb, M.L.A. were not 7 examined. A desperate attempt has been made to establish the charges against the petitioner in absence of the vital witness. In the present case, we are satisfied that non-examination of the vital witnesses has vitiated the enquiry proceeding.
The learned Senior Counsel of the petitioner submitted that the evidence recorded by the Enquiry Officer must have the nexus or linkage with the allegations levelled against the delinquent employee.
The Supreme Court in the case of Sher Bahadur vs. Union of India & Ors. reported in AIR 2002 SC 3030 held that evidence adduced in course of departmental enquiry must have nexus with the allegation. In the aforesaid decision, Hon'ble Supreme Court observed:
"7. It may be observed that the expression "sufficiency of evidence" postulates existence of some evidence which links the charged officer with the misconduct alleged against him. Evidence, however, voluminous it may be, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in law. The mere fact that the enquiry officer has noted in his report, " in view of oral, documentary and circumstantial evidence as adduced in the enquiry", would not in principle satisfy the rule of sufficiency of evidence............................................................"
Mr. Moitra, learned Senior Counsel of the petitioner also cited a decision of the Supreme Court in the case of Narinder Mohan Arya vs. United India Insurance Co. Ltd. & Ors. reported in (2006) 4 SCC 713 in this regard wherein the Supreme Court observed:
"26. 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 a civil court, it was entitled to interfere in a case where the report of the enquiry officer is based on no evidence............................................................"
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44.............................................Indisputably, the writ court will bear in mind the distinction between some evidence or no evidence but the question which was required to be posed and necessary should have been as to 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. The enquiry officer cannot base his findings on mere hypothesis. Mere ipse dixit on his part cannot be a substitute of evidence."
The aforesaid principles settled by the Supreme Court are very much applicable in the facts of the present case.
In our opinion, examination of the aforesaid vital witnesses would have disclosed whether the allegations levelled against the petitioner were correct or not. In order to establish the charges framed against the said petitioner aforesaid persons would have been important and relevant witnesses to prove the charges framed against the petitioner. If the order is passed without recording and considering their evidence, the same must be held to be perverse.
On examination of the enquiry report filed by the Enquiry Officer, we also find that the names of the aforesaid persons namely, the mother Smt. Ananda Moyee Choudhury, Smt. Kakoli Nath and Robin Deb, M.L.A. were mentioned in various paragraphs although, no attempt was made to record their statements in connection with the charges levelled against the petitioner.
While exercising jurisdiction under Article 226, this Court cannot consider the sufficiency or adequacy of evidence in support of conclusion of the disciplinary authority but this Court can 9 certainly enquire about the existence of any evidence in support of the impugned conclusion.
In the case of Union of India vs. H.C. Goel reported in AIR 1964 SC 364, Hon'ble Supreme Court observed:
"23..........................................In exercising its jurisdiction under Art. 226 on such a plea, the High Court cannot consider the question about the sufficiency or adequacy of evidence in support of a particular conclusion. That is a matter which is within the competence of the authority which deals with the question; but the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence illegally the impugned conclusion follows or not....................."
A Constitution Bench of the Supreme Court in the case of The State of Madras vs. G. Sundaram reported in AIR 1965 SC 1103 observed:
"7. It is well settled now that a High Court, in the exercise of its jurisdiction under Art. 226 of the Constitution cannot sit in appeal over the findings of fact recorded by a competent Tribunal in a properly conducted departmental enquiry except when it be shown that the impugned findings were not supported by any evidence......................................."(Emphasis Supplied) Regarding non-engagement of the Presenting Officer, Mr. Dhar, learned Counsel of the State-respondents submitted that there is no provision in the Kolkata Police Regulation for engaging a Presenting Officer in the departmental enquiry and, therefore, no illegality was committed by the disciplinary authority in this regard.
It is true that there is no specific provision for engagement of Presenting Officer in the Kolkata Police Regulation but undisputedly, said regulation does not prohibit engagement of the 10 Presenting Officer. In the instant case, in absence of the Presenting Officer enquiry proceeding could not be conducted effectively as the witnesses produced by the prosecution could not be examined properly in an effective manner in order to establish the charges levelled against the petitioner herein. The witnesses of their own deposed before the Enquiry Officer without keeping any eye on the charges actually levelled against the petitioner and nobody on behalf of the prosecution was also present during the enquiry to remind the witnesses to confine themselves only in relation to the charges levelled against the petitioner.
A departmental enquiry cannot be conducted in a casual manner in the absence of the presenting officer. It becomes difficult for the Enquiry Officer to conduct the enquiry proceeding in an unbiased manner in the absence of the Presenting Officer as the said Enquiry Officer sometimes had to perform the duties which are required to be discharged normally by the presenting officer.
Therefore, not only due to non-examination of the vital witnesses but in absence of proper examination of the witnesses who appeared before the Enquiry Officer, entire enquiry proceedings stood vitiated in the present case.
The other serious allegations levelled against the disciplinary authority are as follows:
i) The disciplinary authority while communicating the provisional order to the petitioner upon consideration of the enquiry report expressed final opinion instead of tentative opinion.
ii) The disciplinary authority while passing the final order did not consider the reply of the petitioner in answer to the provisional order which reflects the total non-application of mind 11 on the part of the disciplinary authority apart from exhibiting the biased attitude towards the petitioner.
Scrutinizing the provisional order issued by the disciplinary authority namely Joint Commissioner of Police Head Quarters, we find that the said disciplinary authority made certain specific observations in respect of the petitioner viz.:
".............................................It is evident that the C.O. carried out all those activities in the name of his mother.
The charges levelled against the C.O. are very grave in the nature and it assumes further gravity as the C.O. being a member of police force got himself involved into such activities misusing his official capacity. All the charges levelled against him have been proved during enquiry.................."
By the aforesaid expressions disciplinary authority expressed its prejudged opinion in respect of the petitioner before issuing the final order. By communicating the provisional order disciplinary authority can express its tentative opinion in respect of the charged employee but the aforesaid comments and or expressions categorically go to show that the disciplinary authority had prejudged the issue even before granting an opportunity to the charged employee to submit a representation in reply to the provisional order.
On examination of the subsequent final order passed by the disciplinary authority in respect of the petitioner we also find that the said disciplinary authority did not consider and/or deal with the representation of the petitioner submitted in answer to provisional order issued by the disciplinary authority.
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The disciplinary authority at the time of passing the final order should have considered the representation submitted by the petitioner in answer to the provisional order issued by the disciplinary authority. Non-consideration of the aforesaid representation of the petitioner by the disciplinary authority at the time of passing the final order clearly established the total non-application of mind on the part of the said disciplinary authority. By the aforesaid Act, disciplinary authority also exhibited its biased mind in respect of the petitioner. The decision of the Supreme Court in the case of Director (Mkt.), Indian Oil Corp. Ltd. & Anr. Vs. Santosh Kumar reported in 2006 (4) Supreme 578 is very much relevant in this regard.
Mr. Pratik Dhar, learned Counsel of the State- respondents referred to and relied on a decision of the Supreme Court in the case of Union of India & Ors vs. Alok Kumar reported in (2010) 5 SCC 349 and submitted that the mere allegation of violation of the natural justice will not be enough to upset an order passed by the disciplinary authority unless it is shown that such violation has caused prejudice to the person concerned.
In Paragraph 89 of the aforesaid decision Hon'ble Supreme Court observed:
"89. The well established cannons controlling the field of bias in service jurisprudence can reasonably be extended to the element of prejudice as well in such matters. Prejudice de facto should not be based on a mere apprehension or even on a reasonable suspicion. It is important that the element of prejudice should exist as a matter of fact or there should be such definite inference of likelihood of prejudice flowing from such default which relates to statutory violations. It will not be permissible to set aside the 13 departmental enquiries in any of these classes merely on the basis of apprehended prejudice."
In the facts of the present case, petitioner herein has specifically demonstrated the actual prejudice suffered by him due to the violation of the principles of natural justice on several occasions at the instance of the Enquiry Officer and the disciplinary authority which we have also discussed hereinbefore. Therefore, it cannot be said that element of prejudice is a mere apprehension or a reasonable suspicion. The principle decided by the Supreme Court in the aforesaid decision has no manner of application in the facts of the present case.
Referring to the decision of this Court in the case of Vivekananda Halder (Supra), Mr. Dhar, learned Counsel of the
State-respondents submitted that only on account of the use of the unhappy expressions/words in the charge-sheet cannot be regarded as the biased attitude of the disciplinary authority. According to the learned Counsel of the State-respondents, this Court should not be too much technical in considering the charge-sheet.
We have elaborately discussed hereinbefore about the incriminating circumstances which vitiated the departmental
proceedings by not conducting the same fairly upon observing the principles of natural justice and procedural justice. The learned Single Judge in the aforesaid case of Vivekananda Halder (Supra) observed:
"34.......................................Whether or not a disciplinary authority has a closed and prejudged mind at the inception of 14 disciplinary proceeding cannot really be comprehended only by having a look at the expressions used in the charge sheet. Disciplinary proceedings may be held to have been initiated with closed and pre-judged mind if from the attending circumstances such a conclusion can reasonably be drawn even though there is a proliferation of expression in the charge sheet like "alleged acts", "prima facie guilty", "tentative view", etc. and the charge-sheet appears to be perfectly worded, whereas proceedings initiated absolutely bona fide; may not be interdicted despite definite expressions in the charge-
sheet which might give an impression in the mind of the delinquent that nothing remains to be decided and that the same has been initiated only to complete a formality in law, unless surrounding circumstances are such that the Court is convinced that there has been deflection of justice. A charge-sheet has to be construed in a reasonable manner and too much legalism cannot be expected of a domestic enquiry. If apart from the inappropriately worded charge-sheet there is no other incriminating circumstance having the effect of vitiating the proceedings, it would be prudent exercise of judicial discretion not to interfere." (Emphasis supplied) In the instant case, apart from inappropriately worded charge-sheet other surrounding circumstances are such which have the effect of vitiating the disciplinary proceedings.
Mr. Dhar, learned Counsel of the State-respondents submitted that in absence of any allegation relating to procedural irregularity and/or illegality, High Court should not interfere with the departmental enquiry. Mr. Dhar relied on a decision of the Supreme Court in the case of Bank of India and Ors. vs. T. Jogram reported in (2007) 7 SCC 236, which, in our opinion, has no manner of application in deciding the issues raised in the writ petition in view of various illegalities and procedural irregularities committed by the Inquiring Authority and disciplinary authority in conducting the disciplinary proceedings against the petitioner which we have elaborately discussed hereinbefore.15
Mr. Dhar also submitted before us that the petitioner herein should prefer an appeal before the appellate authority in compliance with the direction issued by the Learned Tribunal.
Under normal circumstances, we would have also asked the petitioner to approach the appellate authority but in the instant case, we cannot do so, since the learned Tribunal without appreciating the irregularities and/or illegalities committed by the Enquiry Officer as well as the disciplinary authority approved their actions and held against the petitioner herein. In the aforesaid circumstances, any appeal before the appellate authority would be an idle ceremony and empty formality bereft of any sections. Therefore, we are unable to ask the petitioner to apply before the appellate authority following the decisions of the Learned Tribunal.
As we have discussed earlier, the entire disciplinary proceedings initiated against the petitioner is vitiated by the biased attitude and prejudged opinion of the disciplinary authority. The disciplinary authority failed to observe the principles of natural justice and procedural justice while conducting the disciplinary proceedings right from its initiation by issuing the charge-sheet which culminated in the final order and seriously prejudiced the petitioner.
In the aforesaid circumstances, we quash the charge-sheet, the enquiry report, the final order passed by the disciplinary authority and as a matter of fact, the entire disciplinary proceedings initiated on the basis of the aforesaid charge-sheet against the petitioner herein.
For the aforementioned reasons, the impugned judgment and order passed by the learned Tribunal cannot be sustained and the same is therefore, set aside.16
The respondent authorities are directed to pay all the admissible service benefits which have been denied to the petitioner pursuant to the order of punishment without any further delay but positively within a period of six weeks from the date of communication of this order as if no punishment was issued to the petitioner in relation to the disciplinary proceedings initiated pursuant to the charge-sheet dated 24th May, 2005.
In the facts of the present case, there will be no order as to costs.
Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.
[PRANAB KUMAR CHATTOPADHYAY, J.] MD. ABDUL GHANI, J.
I agree.
[MD. ABDUL GHANI, J.]