Calcutta High Court (Appellete Side)
Bachha Singh vs Union Of India & Ors on 9 July, 2008
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice S.P. Talukdar
A.S.T.No.1114 of 2008
Bachha Singh
Vs.
Union of India & Ors.
For the Petitioner: Mr. K.B.S.Mahaptra.
For the Respondents: Mr. S. Roy Chowdhury.
Judgment on: 09.07.2008 S. P. Talukdar, J.: By filing the instant application under Article 226 of the Constitution, the petitioner, Sri Bachha Singh, sought for an order of quashing and setting aside the entire disciplinary proceeding, including the purported final order as well as other reliefs.
Grievances, as ventilated, are as follows: -
The petitioner joined the Central Industrial Security Force on 1st April, 1982. On 3rd November, 2007, a memorandum of charges was issued to him. It contained various false, fabricated and vague allegations. It was alleged that one Radiator was stolen from his duty post. By letter dated 14th November, 2007, he replied to the same and denied the allegations. The authority concerned appointed Sri A. Kumar, as Presenting Officer and Sri Tulsi Singha, as Enquiry Officer. It was in connection with the enquiry, which was directed to be conducted, in respect of the charges framed against the petitioner. The departmental enquiry commenced on and from 16th December, 2007. After presenting the evidence the Presenting Officer was of the view that the allegations made against the petitioner could not be proved. The Enquiring Officer analyzed the evidence and came to the finding that the charges were not proved.
The Disciplinary Authority without any legal basis and due to extraneous reasons differed with the findings and issued a disagreement note by his purported letter dated 8th April, 2008. The petitioner was called up to make his representation.
In his representation dated 14th April, 2008, the petitioner raised various grounds. But the Disciplinary Authority by the purported final order dated 15th June, 2008 inflicted the penalty of removal from service.
The petitioner claimed that in view of violation of principles of natural justice by the respondent authority, the petitioner was left with no option but to seek redress before this court of law - since there is no efficacious alternative remedy.
Learned Counsel for the petitioner submitted that the impugned order clearly reflects bias on the part of the respondent/authority. It was claimed that the petitioner was not given an opportunity of hearing before the disagreement note was issued.
According to the learned Counsel Mr. Mahapatra appearing for the petitioner, there could be hardly any justification for the disciplinary authority to differ with the findings of the Enquiring Officer. Mr. Mahapatra repeatedly highlighted the fact that the petitioner has to his credit 27 years of unblemished service records.
Mr. Roy Chowdhury as learned Counsel for the respondent/authority, sought to strike the present application at its root. He submitted that in view of availability of alternative remedy, this writ court cannot have any justification to entertain the present application.
In response to this, Mr. Mahapatra referred to the various decisions in support of his stand that the writ application does not deserve to be thrown out merely on the ground of availability of alternative remedy.
In the case of Whirpool Corporation vs. Registrar of Trade Marks, Mumbai & Ors., reported in AIR 1999 Supreme Court 22, the Apex Court held that the jurisdiction of the High Court in entertaining a Writ Petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. The relevant observation of the Apex Court is: -
" Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a Wit Petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of principle of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged."
Mr. Mahapatra, sought to derive inspiration from the decision in the case of Yoginath D. Bagde vs. State of Maharashtra & Anr., reported in (1999) 7 SCC 739.
The Apex Court in the said case held: -
" Difficulties have arisen in all those cases in which the enquiring authority has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the disciplinary authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent officer at this stage. Such an opportunity may either be provided specifically by the rules made under Article 309 of the Constitution or the disciplinary authority may, of its own, provide such an opportunity. Where the rules are in this regard silent and the disciplinary authority also does not give an opportunity of hearing to the delinquent officer and records findings different from those of the enquiring authority that the charges were established, " an opportunity of hearing" may have to be read into the rule by which the procedure for dealing with the enquiring authority's report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be "not guilty" by the enquiring authority, is found "guilty" without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of "not guilty" has already been recorded".
It was contended on behalf of the petitioner that even in absence of prejudice a delinquent officer cannot be denied an opportunity of hearing. Reference was made to the decision in the case of State Bank of India & Ors. vs. K.P.Narayanan Kutty., reported in AIR 2003 Supreme Court 1100 in this regard.
It was submitted that whenever the disciplinary authority disagrees with the enquiring authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. In the case of Punjab National Bank & Ors. vs. Kunj Behari Misra., reported in (1998) 7 Supreme Court Case 84, the Apex Court observed " the report of the enquiring officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."
Deriving inspiration from the decision in the case of Union of India and Anr. vs. Charanjit S. Gill & Ors., reported in (2000) 5 Supreme Court Case 742, it was contended that mere availability of an alternative remedy may not satisfy the principle of natural justice. The authority must inspire confidence. The Apex Court in the said case observed that judicial approach by people well versed in objective analysis of evidence trained by experience to look at facts and law objectively, fair play and justice cannot always be sacrificed.
Mr. Mahapatra sought to derive further support from a decision of the learned Single Bench of this court in the case of Seth Soorajmal Jalan Balika Vidyalaya (Secondary School) & Anr. vs. Controlling Authority & Ors., reported in 2001 (1) CHN 250. It was further contended on behalf of the writ petitioner that there is always need for issuance of second notice before inflicting punishment. Attention of the court was invited to the decision in the case of Union of India & Ors, vs. Mohd. Ramzan Khan., reported in AIR 1991 Supreme Court 471 in this regard. On behalf of the respondent/authority, it was emphatically submitted that the present writ application is not maintainable in view of availability of an alternative efficacious remedy. In this context, learned Counsel submitted that it is neither possible nor desirable for this court to reappreciate the evidence.
It is true, that reappreciation or re-evaluation of the evidence recorded in connection with the disciplinary proceeding is ordinarily not permissible. This court, however, can very well entertain any grievance relating to the decision making process.
In the present case, as indicated earlier, the Presenting Officer could not press for a finding of guilt. This was presumably due to inherent hollowness of the evidence on record. The Enquiring Authority did not find the writ petitioner 'guilty'. But, even then, the disciplinary authority found the writ petitioner 'guilty' of the charge. This by itself cannot be grudged. But the court cannot be unmindful or indifferent to the manner in which such finding of guilt was arrived at.
Mr. Mahapatra submitted that the writ petitioner was not given a proper opportunity of hearing regarding the punishment. The fact that the writ petitioner has an unblemished service record of 37 years was brought to the notice of this court.
In such context, this court finds it extremely difficult to ignore the claim that the punishment of 'removal from service' was rather harsh, if not shockingly disproportionate.
There is no doubt scope for preferring an appeal against the impugned order of removal from service. There is further scope for 'revision'. But such provision may not in all circumstances serve the requisite purpose. When there is blatant abuse of the process of law, defiance of the principles of natural justice, violation of fundamental rights and indifference to the cause of justice, it becomes difficult for a writ court to remain indifferent. It cannot afford to say that 'who am I to take up arms against the sea of troubles?'.
In identical situation, it has been the painful experience of many that higher authorities have an inherent tendency, if not an unconscious bias, to take an approach adopted by its immediate junior authority in the hierarchy. Though not desirable, there always remains a possibility of such instincts. In the peculiar backdrop of the present case, this court finds it difficult, if not impossible, to rule out such possibility. The situation in the present case accordingly demands interference by this court. Accordingly, the present application being A.S.T. No.1114 of 2008 is allowed and the impugned order dated 15th June, 2008 by which the petitioner was removed from service be set aside. Respondent/authorities are directed to allow the writ petitioner to join in his post. For any period of absence, the petitioner be at liberty to file a proper application for regularization of the same. If such an application is filed, the authority concerned must consider the same in accordance with rules.
This, however, does not prevent the respondent/authority from initiating any fresh action or starting any disciplinary proceeding in respect of the same charge in accordance with the rules.
There will, however, be no order as to costs.
Urgent xerox certified copy of this judgment, if applied for, be supplied to the parties upon due compliance of the legal formalities.
(S.P.Talukdar, J.)