Calcutta High Court (Appellete Side)
320/2010 on 7 February, 2011
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
1
7.02.2011
W.P.C.T. 320 of 2010
Mr. Milon Chandra Bhattacharyya,
Mr. Tarique Quasimuddin,
Ms. Najmas Sahas
...For the petitioner.
Mr. Bhaskar Prasad Vaisya
... For the respondent
no.1.
Mr. Arun Kanti Chattopadhyay
... For the respondent
no. 3.
_______
Pratap Kumar Ray, J.
The matter has appeared today under the heading "Extension of Interim order".
Having regard to the tenor of the order impugned, we are of the view that the main matter could be disposed of.
Heard the learned Advocates appearing for the parties.
Assailing the order dated 7th August, 2009, passed by the Central Administrative Tribunal, Calcutta Bench in O.A. 466 of 2007, this writ application has been filed. The impugned order reads such:-
"The applicant is an IPS and is Deputy Inspector General of Police, Home Guards, Govt. of West Bengal. In the present application he has 2 challenged disciplinary proceedings initiated against him on 29.3.2006 including the finding which was served upon him dated 23.11.2006.
2. The facts of the case are as follows:-
3. The applicant belongs to the 1977 batch of the Indian Police Service who after due selection through the UPSC was allocated the West Bengal cadre. He served in various capacities in West Bengal and in the Govt. of India. The applicant has had a distinguished career during which he got medals. He also obtained a PhD from the North Bengal University in 2005.
4. He was D.IG., C.I.S.F. on deputation under Ministry of Home Affairs from 1993 to 1998. He returned to his parent cadre, West Bengal on 31.3.98. He was posted as D.I.G. Armed Police, North Bengal. He was eligible for his next promotion as Inspector General of Police in 2001. However, while others DIGs had been promoted as Inspector General of Police in 28.12.2001, the applicant's name was not included.
5. He had earlier prayed on 20.12.2001 to the State Govt. memo dated 12.6.1980. He made another representation dated 30.12.2001 in this regard.
6. He was informed on 17.1.2002 by the State Govt. that memo No. 224-P&AR (Vig.) dated 12.6.1980 was not applicable in the case of All India Service Officers against whom disciplinary proceedings or criminal cases were pending.
7. The applicant has stated that the above decision was arbitrary in that such procedure has been followed in the case of other IPS officers. He then filed a O.A. before this Tribunal. The Tribunal vide its order directed the respondent No. 2 that the applicant's case should be considered as per memo dated 12.6.1980 and that the applicant should be informed within six weeks.
8. Subsequently Special Secretary to the Govt. of West Bengal vide memo dated 22.11.2005 informed the applicant that the Vigilance Commissioner of the State would examine the applicant by way of an open investigation regarding certain matters including scrutiny of documents. The applicant was asked to meet the Deputy Superintendent of Police, Vigilance Commission on 1.12.2005. It was stated that in terms of a secret inquiry report of the Vigilance Commission at the I.G. level, the Vigilance Commissioner was satisfied that there were prima facie material which justified such open investigation/inquiry against the applicant.
9. The applicant submitted his representation asking for documents for appearing at the open investigation. It was also stated that the Vigilance Commission cannot have jurisdiction to ask a D.I.G. ranked officer to appear before a Deputy Superintendent of the Vigilance Commission. The applicant 3 cited a ruling of the Hon'ble Supreme Court in Civil Appeal No. 2196/95 in this regard. The applicant stated that Vigilance Commissioner could not act as a Disciplinary Authority and the Deputy Superintendent could not act as an Inquiring Officer (Annexure-A/2).
10. This, however, was not considered by respondent No. 2 viz. Chief Secretary, Govt. of West Bengal who issued a charge sheet against the applicant under Rule 8 of All India Services (Discipline and Appeal) Rules, 1969, on 29.3.2006 (Annexure-A/3) which has been impugned in the present application.
11. The applicant has stated that the earlier order of the Tribunal in his case dated 18.11.2005 had not been complied with against which he had filed CPC 54/2006. The respondents have taken recourse to the charge sheet against him by way of retaliatory action.
12. The applicant has also stated that the contents of the charge sheet filed against him would show that the Disciplinary Authority (DA) had already made up his mind. Therefore, the charge sheet shows bias and a closed mind in respect of the DA.
13. The applicant subsequently in order to give his written statement of defence asked for documents including copies of the secret inquiry report of the Vigilance Commission on the basis of which the charge sheet had been drawn up. This was not given.
14. The Inquiry Officer was appointed by the Disciplinary Authority without supply of documents. A retired District Judge who was Commission for Departmental Inquiries was appointed as an Inquiry Officer.
15. The applicant had submitted that the Inquiring Authority had acted in a biased manner and was guided by the DA which was wrong in that a disciplinary proceeding was quasi judicial in nature. The charge sheet itself was vitiated by the fact that no receipts had been produced to prove the fact that the applicant had received Rs. 1.60 crores wrongfully. No documentary proof was submitted that one Shri Mustak Hossain, Chairman of M/s Pataka Industries had paid this alleged sum of Rs. 1.60 crores to the applicant. Similarly, in respect of charge No. V the copy of the demand draft of Rs. 4.8 lakhs was also not produced which was said to have been issued to have been given in favour of the applicant.
16. The finding of the Inquiry Authority that the charges have been proved was also biased. The inquiry report was given to the applicant on 23.11.2006 (Annexure-A/4). The applicant has stated that the Inquiry Officer was a member of a non-statutory organisation viz. The Vigilance Commissioner and, therefore, he could not be appointed Inquiring Authority 4 as per rules. The Inquiring Authority could be appointed as per Rule 8(2) of the AIS (D&A) Rules, 1969 or under Public Servants (Enquiries) Act, 1850. The Inquiring Authority appointed in the present case was neither a central Govt. employee nor was he a member of a statutory organisation. The State Vigilance Commission had been set up by way of executive instructions only.
17. The applicant has also stated that the inquiry report of the Inquiring Authority also should have been forwarded directly to the DA. Instead the report was forwarded to the Vigilance Commission which was a violation of Rule 8(24). The apprehension of the applicant is that the Vigilance Commissioner and the applicant had strained relation and as such since the inquiry report had been forwarded to him for transmission to the State Govt., the recommendations of the Vigilance Commissioner would be made on it which would be biased against the applicant.
18. Based on the above, the prayer of the applicant is that the disciplinary proceedings initiated on 29.3.2006 as well as the finding of the Inquiring Authority dated 23.1.2006 should be quashed.
19. In reply the State Govt. has stated that the action taken by them had no relation with the order passed by this Tribunal dated 18.11.2005. The applicant was asked to meet the DSP, A.C.B., Vigilance Commission along with some documents which was relevant to the inquiry undertaken by the ACB for scrutiny and examination and also to furnish explanation/clarification on certain documents. The Vigilance Commission had been constituted under a resolution of the State Government to help the Disciplinary Authority to conduct inquiry against State Govt./All India Service Officers serving in connection with the State. As such there had been no violation of any statutory provision or other AIS (D&A) Rules, as claimed by the applicant.
20. On examination of the finding of the preliminary inquiry report and other documents the DA had decided to initiate disciplinary proceedings. Accordingly, charge memo along with articles of charge was issued to the applicant with the request to submit his written statement of defence. The DA after considering the written statement of defence decided to proceed against the applicant and appointed an Inquiring authority and a Presenting Officer. The Inquiring Authority so appointed was the Commissioner for Departmental Inquiries appointed by the Govt. of West Bengal to conduct and assist the DA in the matter disciplinary proceedings against public servants.
21. The Inquiring Authority had conducted the inquiry and had examined the charged officer along with relevant papers, documents, records and witnesses independently and without any pressure of influence. The charge officer was also given ample opportunity to examine documents 5 produce witnesses and cross-examine prosecution witnesses during the inquiry.
22. The Inquiring Authority had submitted the finding of the inquiry report with all relevant documents to the DA. The DA after thorough examination of all records had found the applicant guilty of all the charges and had tentatively decided to impose upon the charged officer a major penalty and had issued a notice along with report of the Inquiring Authority calling upon the applicant to furnish his submission as per provision of the All India Services (D&A) Rules.
23. The Respondent No. 2 viz. the Ministry of Home Affairs had in the reply stated that the State Government was empowered to initiate disciplinary proceeding as per Rule 7 (1)(b)(I) of the All India Services (D&A) Rules, 1969. The State Govt. had issued a charge sheet dated 29.3.2006. Thereafter Inquiring Officer had been appointed by the Govt. of West Bengal who had submitted his inquiry report on 23.10.2006 a copy of which had been served on the applicant on 23.11.2006.
24. Heard counsel for the applicant and the respondents.
25. the short point to be considered here is whether the Tribunal should intervene in the disciplinary proceeding involving major penalty charges at the stage when an inquiry had been completed and the applicant had been served with a copy of the inquiry report and the DA has come to a tentative finding that on the basis of the inquiry report a major penalty punishment on ground of misconduct are to be issued. The applicant has been given an opportunity of making his submission to the DA.
26. We have gone through the charge sheet. All the five articles of charge are of a serious nature involving financial misconduct on the part of the applicant. The respondents have raised serious questions about the personal integrity of a senior police officer who is aspiring to hold the highest rank in his service. The charges involve, iner- alia receiving payment of large sums from a private person. The Inquiring Authority who is a retired District Judge and who was the Commissioner of Departmental Inquiries has made a through and exhaustive inquiry in which the applicant participated. The lacuna pointed out by the applicant that he had not been supplied with all documents is not sustained in that although he was not supplied with a copy of the secret inquiry report of the Vigilance Commission, the same was not a document relied upon by the prosecution in the disciplinary proceeding. As per law only copies of relied upon documents are to be furnished to the charged officer.
27. It is also seen that the Inquiring Authority has stated that without any qualification that all the five articles of charge are proved. The IA 6 forwarded the inquiry report to the DA through the Vigilance Commissioner. The applicant had stated that this was wrong and the report should have been sent directly to the State Govt. We, however, find from the pleadings that the IA forwarded the report to the State Government through the Vigilance Commissioner only because that was the proper channel. There has been no adverse comment on the inquiry report by the Vigilance Commissioner. We do not have any evidence that the applicant has been prejudiced in that his application has been forwarded through the proper channel. If there were comments or suggestions made by the Vigilance Commissioner on the inquiry report to the State Govt./ DA there could have been a case of bias. No such evidence has been produced by the applicant. Mere apprehension that as because of strained relations with the Vigilance Commissioner of the applicant the case would be biased is no ground for intervention.
27. In the earlier O.A. viz. O.A. 348/2006 had been filed, this Tribunal had directed vide its order dated 24.4.2006 that the inquiry should be disposed of as quickly as possible. Some of the grounds raised in the present O.A. were raised in the earlier O.A. We find on careful consideration of the entire matter including going through the pleadings and the hearing the ld. counsel on both sides that no intervention is warranted at this stage and the disciplinary proceedings should be allowed to run its full course.
28. An inquiry has been conducted based on the charge sheet. The charge sheet has articles involving matters which cast the gravest aspersions on the personal integrity of a senior police officer. There are also matters imputing financial misdemeanour. The Inquiry Authority at the level of a retired District Judge as a Commissioner of Departmental Inquiries after a thorough inquiry has found the applicant guilty of all the five articles of charge. The DA has furnished a copy of the inquiry report to the applicant. It is our considered view that the applicant should reply to the inquiry report as supplied to him by the DA. He may raised points of fact and of law as deemed fit before the DA. If he is penalized he may seek redress before the appropriate forum.
29. There is nothing that we find which would warrant the intervention of this Tribunal at this stage when the disciplinary proceeding is not complete in that final orders of the DA are not yet available and since the applicant has not yet exhausted all departmental channels which must be exhausted first before an aggrieved person can seek relief before this Tribunal. Section 21 of the Administrative Tribunal Act makes this clear. There is no proof given by the applicant of any malafide on behalf of the respondents.
30. Under the circumstances it is our view that the O.A. is premature and is, therefore, dismissed. Liberty is given to the applicant to come before this Tribunal after he had exhausted all departmental remedies in the present 7 disciplinary proceedings after the proceedings are complete and final orders issued and if he is still aggrieved. O.A. is dismissed accordingly. No costs".
On a bare reading of the impugned order, it appears that the matter is as yet at the stage of consideration of the report of Inquiring Officer by the Disciplinary Authority. It is an admitted position that the delinquent writ petitioner got the chance to appear before the Inquiring Officer, who is a retired District Judge, to defend the charge levelled against him. Along with the several charges, there is a charge of receiving money to the extent of Rs. 1.60 crores from a private person wrongfully. The enquiry report has been served upon the delinquent asking him to file a reply against the enquiry report. At this juncture the delinquent writ petitioner moved the learned tribunal below assailing the departmental proceeding.
Mr. Bhattacharjee, learned Senior Advocate appearing for the writ petitioner has submitted before us that the route through which the Inquiring Officer sent the report of enquiry is not legally permissible route as it was processed through the Vigilance Commission for onward submission to the Disciplinary Authority. It is further contended that the Vigilance Commission may make adverse comment and if that adverse comment is considered by the Disciplinary Authority, his client would be prejudiced. Since the present position now is pendency of disciplinary proceeding to consider the enquiry report and objection of the delinquent thereof, it is at premature stage to consider those issues that the Disciplinary Authority may be biased perusing recommendation of vigilance. Under the law, Disciplinary Authority is required to consider the enquiry report, the reply of it and other documents. Since the Disciplinary Authority as yet has not finalised the issue by passing any order of imposing punishment, at this stage, challenge on continuance of disciplinary 8 proceeding is not legally sustainable. The tribunal accordingly has rightly commented that it is now at premature stage.
Having regard to the finding of the tribunal and the subject matter of the lis, we are of the view that writ application has no merit assailing the impugned order of the tribunal. It is a settled legal position of law that departmental proceeding should not be kept pending and the delinquent should not be allowed to prolong the life of disciplinary proceeding by taking resort of different means including filing of unnecessary litigation. The grievance of delinquent writ petitioner about adverse comment of Vigilance Commission, there is no doubt, if is considered by the Disciplinary Authority without giving opportunity to controvert it may be a ground to agitate after finality of the disciplinary proceeding, as per law.
Writ application accordingly stands dismissed.
All interim orders stand vacated.
Disciplinary Authority is directed to complete the disciplinary proceeding as expeditiously as possible in accordance with law.
(Pratap Kumar Ray, J.) I agree.
9(Shyamal Kanti Chakrabarti, J.)