Calcutta High Court (Appellete Side)
Ashim Kumar Sarkar vs Union Of India & Ors on 14 December, 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.C.T. 214 of 2008
Ashim Kumar Sarkar
Versus
Union of India & Ors
For the Petitioner : Mr. Rudra Jyoti Bhattacharyya,
Ms. Debjani Ghoshal,
Ms. Moumita Nag Mukherjee.
For the Union of India : Mr. Srijan Nayek,
Mr. Raja Saha.
Heard On: 26.08.2010, 17.09.2010 & 01.10.2010
Judgment On: 14.12.2010
PRANAB KUMAR CHATTOPADHYAY, J.
The petitioner herein was a Lower Division Clerk in the Rifle Factory at Ichapur and was posted in the Purchase Department at the relevant time.
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The respondent authorities herein issued a tender being T.E. No. D-9900002117 which was due to be opened on 27th March, 2000. The interested parties submitted the tender documents in a sealed cover and dropped the same in a tender box which was opened on 27th March, 2000 in presence of the Works Manager along with other two departmental officers. After opening tender box it was found that only four quotations were received in respect of the aforesaid tender being T.E. No. D-9900002117. The authorities concerned thereafter, decided to defer the opening date of the tender in question till 3rd April, 2000 and the petitioner was, therefore, asked to put the sealed envelops containing the tender papers of the respective parties in the tender box.
From the records of this case we find that on the basis of one unanimous letter and a telephonic intimation, Joint General Manager and Vigilance Officer inspected the drawer and the locker of the petitioner on 29th March, 2000 when it was found that the drawer was kept open whereas the official locker (Almirah) was in locked condition. It also appears from the records that the petitioner was thereafter, asked to bring the key of the locker on the next day and the locker in question was sealed by the said officer. On the following day i.e. on 30th March, 2000, the locker was opened by the Joint General Manager and Vigilance Officer when it was found that the tender files along with the aforesaid envelops containing tender documents in relation to the tender in question being T.E. No. D-9900002117 were found in the locker of the petitioner although the said petitioner was asked to put the aforesaid tender envelops into the tender box since the opening date of the tender was deferred to 3rd April, 2000. According to the petitioner, he was not aware how those envelops were kept in his locker.
Further facts which reveal from the records are narrated hereinafter: 3
The General Manager by the order dated 8th April, 2000 placed the petitioner under suspension with effect from 8th June, 2000. The said General Manager also by the subsequent letter dated 25th April, 2000 informed the petitioner about holding of an enquiry against him under Rule 14 of the Central Civil Service (Classification, Control and Appeal) Rules, 1965. The Articles of Charges were also communicated to the petitioner along with the aforesaid letter dated 25th April, 2000 with a direction to the said petitioner to submit his written statement of defence within 10 days from the date of receipt of the said letter.
The Enquiry Officer thereafter, started enquiry proceedings and after completion of the said proceedings submitted the report before the disciplinary authority. The General Manager being the disciplinary authority by the order dated 25th July, 2001 issued the order of punishment to the petitioner imposing penalty of removal from service with effect from 25th July, 2001.
The petitioner challenged the said order of the disciplinary authority before the appellate authority but the appeal preferred by the said petitioner was rejected by the appellate authority.
Challenging the charge-sheet, enquiry proceedings, order of punishment issued by the disciplinary authority and the subsequent order passed by the appellate authority, an application was filed by the petitioner before the learned Central Administrative Tribunal, Calcutta Bench which was ultimately dismissed by the said Learned Tribunal by the impugned judgment and order dated 9th May, 2008.
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Assailing the aforesaid judgment and order passed by the Learned Tribunal, instant writ petition has been filed by the petitioner.
The learned Counsel of the petitioner submitted that the disciplinary authority did not consider the evidence on record and held the petitioner guilty without arriving at any specific finding regarding establishment of the charges levelled against the petitioner. The learned Counsel of the petitioner further submitted that in absence of independent finding of the disciplinary authority and also the appellate authority, order of punishment imposed upon the petitioner cannot be sustained. The learned Counsel of the petitioner referred to and relied on the following decisions of the Supreme Court in support of his aforesaid arguments:
1) AIR 1970 SC 1302 [M/s. Mahabir Prasad Santosh Kumar vs. State of U.P. & Ors.] (Paragraphs 6, 7, & 8)
2) 2006 (4) Supreme 578 [Director (Mkt.), Indian Oil Corp. Ltd. & Anr. vs. Santosh Kumar] (Paragraph 11)
3) AIR 1985 SC 1121 [Anil Kumar vs. Presiding Officer and Ors.] (Paragraph 5)
4) AIR 1988 SC 434 [Bhagwati Prasad Dubey vs. The Food Corporation of India] (Paragraph 7)
5) (2006) (4) SCC 153 [Ranjit Singh vs. Union of India & Ors.] (Paragraph 22) Mr. Srijan Nayak, learned Counsel of the respondents, however, submitted that no independent finding of the disciplinary authority is required in the event the report of the Enquiry Officer is accepted by the disciplinary authority. Mr. Nayak referred to and relied on the following decisions in support of his aforesaid contentions:
1) AIR 1966 SC 1827 [State of Madras vs. A. R. Srinivasan]
(Paragraphs 14, 15, & 16)
2) AIR 1962 SC 1130 [A. N. D'silva vs. Union of India]
(Paragraph 5)
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Going through the enquiry report we find that the Enquiry Officer after considering the evidence on record specifically held:
"In respect of the article of charges mentioned in the charge memo issued to Shri Ashim Kumar Sarkar, the court concludes thus:
Based on the circumstantial and documentary evidence the court concludes that the article of charges framed against Shri Ashim Kumar Sarkar is sustained."
On examination of the aforesaid enquiry report submitted by the Enquiry Officer we do not find why the evidence adduced in support of the petitioner were not acceptable to the Enquiry Officer. The Enquiry Officer also did not explain why the evidence adduced by the defence witnesses should not be accepted. The said Enquiry Officer did not assign any reason for not relying on the evidence adduced by the defence witnesses. Most surprisingly, the Enquiry Officer upon recording certain facts and on examination of the Government servant specifically accepted the inadequacies in the tender opening procedure and also the violation of the system procedure. The relevant extracts from the said enquiry report are set out hereunder:
"T.E. No. D-9900002117 was scheduled for opening on 27/3/2000. But on the date of opening, the date was further deferred to 3/4/2000. There is no mention regarding the extension of tender opening date on the covers of the quotations received and found in the locker of Shri A.K. Sarkar. As per procedure the tenders received on or before 27/3/2000 should have been marked as 'Tenders deferred from opening to 3/4/2000' and deposited in the tender box, the responsibility of which rests with the tender opening officer. Deferred quotations are put back in the tender box by the concerned staff in this case and not in the presence of tender opening officer.
The above give rise to violation of system procedure. The fact that four numbers of quotations were deferred for opening also points out the fact that authority for postponing the date of tender was not properly exercised. Moreover, it is revealed that no supervision exists for depositing the deferred quotations back into the box. (Ref. A3 and A5 of examination of PW4) The examination of the Govt. servant no doubt reveals the inadequacies in the tender opening procedure. The defendant is trying to take advantage of such laxities....................."(Emphasis Supplied) 6 Enquiry Officer is duty bound to consider the evidence of all witnesses examined by the petitioner which unfortunately, has not been done in the instant case. An enquiry report in a quasi-
judicial enquiry should disclose adequate reasons in support of the conclusions. In the present case, the Enquiry Officer failed to assign proper reasons in support of the conclusions.
The petitioner submitted a detailed representation before the disciplinary authority challenging the aforesaid conclusions of the Enquiry Officer. The disciplinary authority, however, did not consider the said representation of the petitioner in an appropriate manner. The disciplinary authority while inflicting punishment upon the petitioner did not disclose why the representation submitted by the said petitioner did not appeal to him at all. The disciplinary authority also did not disclose why the evidence of the defence witnesses were not considered creditworthy. The disciplinary authority being a quasi-judicial authority should record reasons in support of its decision. The relevant extracts from the order passed by the disciplinary authority are set out hereunder:
" *** *** *** *
*** *** *** *
04) AND WHEREAS a copy of the report of Inquiry Officer was sent to Shri Ashim Kumar Sarkar, LDC (Under suspension), P. No. 268024, PV Section, Rifle Factory, Ishapore at his recorded address vide RFI Memo. No. 69(00)/Vig. dt. 18-5-2001 and he was given an opportunity of making such submission on the report of Inquiry as he desired. Shri Ashim Kumar Sarkar, LDC received the same on 21-5-2001 and he has submitted his representation dt. 04-6-2001.
05) AND WHEREAS on careful consideration of the report of Inquiry Officer and other records of the case the undersigned has decided to accept the findings of the Inquiry Authority in respect of the charge framed against the said Shri Ashim Kumar Sarkar, LDC (Under suspension) in Article-1 of Annexure-I of RFI Memo. under reference (1) and holds that Shri Ashim Kumar Sarkar, LDC (Under Suspension), P. No. 268024, PV Section is guilty of GROSS MISCONDUCT (Engage in corrupt practices) as detailed in RFI Memo. under reference(1).
06) NOW, THEREFORE, after considering the records of Inquiry the facts and circumstances of the case the undersigned has come to the conclusion that Shri Ashim Kumar Sarkar, LDC (Under suspension), P. No. 268024, PV Section, Rifle Factory, Ishapore is not a fit person to be retained in Govt.7
service and hence ends of justice require that the penalty of removal from service be imposed on him.
The penalty of removal from service is accordingly hereby imposed on Shri Ashim Kumar Sarkar, LDC (Under suspension), P. No. 268024, PV Section, Rifle Factory, Ishapore with effect from 25-07-2001.
Sd/-
S. K. Ray GENERAL MANAGER"
From the aforesaid order we do not find why the petitioner was held guilty of gross misconduct by the disciplinary authority. The disciplinary authority reached the conclusion that the petitioner is not a fit person to be retained in government service without even disclosing any reason. The decision of the disciplinary authority should be supported by reasons.
In the case of M/s. Woolcombers of India Ltd. vs. Woolcombers Workers' Union and Anr.
reported in AIR 1973 SC 2758, Supreme Court observed:
"5.................................The giving of reasons in support of their conclusions by judicial and quasi-judicial authorities when exercising initial jurisdiction is essential for various reasons. First, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfairness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by reasonable man and will discard irrelevant or extraneous considerations. Second, it is a well known principle that justice should not only be done but should also appear to be done. Unreasoned conclusions may be just but they may not appear to be just to those who read them. Reasoned conclusions, on the other hand, will have also the appearance of justice..................................................."
In the case of S. N. Mukherjee vs. Union of India reported in AIR 1990 SC 1984, a Constitution Bench of the Supreme Court has observed:
"35. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its 8 decision are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisions-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review..................................................."
The Supreme Court in the case of M/s. Mahabir Prasad Santosh Kumar vs. State of U.P. & Ors. (Supra) has also specifically observed:
"7.................................It must appear not merely that the authority entrusted with quasi-judicial authority has reached a conclusion on the problem before him: it must appear that he has reached a conclusion which is according to law and just, and for ensuring that end he must record the ultimate mental process leading from the dispute to its solution. Satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appeal to the authority. Recording of reasons in support of a decision on a disputed claim by a quasi-judicial authority ensures that the decision is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons in greater, for without recorded reasons the appellate authority has no material on which it may determine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just. "
The appellate authority herein rejected the appeal preferred by the petitioner without recording any independent finding and/or assigning proper reasons for accepting the findings of the disciplinary authority.
Mr. Nayak, learned Counsel of the respondents submitted that no independent reasons are required to be recorded by the disciplinary authority in the event the report of the Enquiry Officer is accepted but in the present case, the Enquiry Officer did not furnish proper and/or adequate reasons in support of the conclusion that the charges levelled against the petitioner have been established. 9
The petitioner submitted specific representation before the disciplinary authority challenging the findings of the Enquiry Officer. In the said representation petitioner relied on the evidence adduced by the defence witnesses and also pointed out several illegalities and/or irregularities committed by the Enquiry Officer. Therefore, it was the duty of the disciplinary authority to record its own findings while holding the petitioner guilty in relation to the charges levelled against him. Unfortunately, the disciplinary authority did not record any independent finding which was very much required in the facts of the present case.
The decisions cited by Mr. Nayak, learned Counsel of the respondents have no manner of application in the facts of the present case.
The disciplinary authority should have arrived at independent findings after considering the representation of the petitioner and analysing the materials on record in an appropriate manner. Without recording independent findings in relation to the charges levelled against the petitioner, disciplinary authority had acted in clear violation of the principles of natural justice and procedural justice. It is very much difficult for us to know why the disciplinary authority did not find any merit in the objections specifically raised by the petitioner in the representation submitted before the said disciplinary authority.
The appellate authority also without assigning any reason accepted the order passed by the disciplinary authority and rejected the appeal filed by the petitioner herein. 10
On examination of both the orders of the disciplinary authority and the appellate authority we find that the specific objections raised by the petitioner were not at all considered by the aforesaid authorities while considering the representation of the petitioner. The disciplinary authority held the petitioner guilty without deciding the specific objections raised by the petitioner herein and the said order passed by the disciplinary authority is an outcome of total non-application of mind.
The appellate authority also acted in a most irresponsible manner while affirming the decision of the disciplinary authority since the said appellate authority did not record any reason why the objections raised by the petitioner against the order passed by the disciplinary authority cannot be sustained in the eye of law. The appellate authority also did not apply its mind while deciding the appeal preferred by the petitioner herein.
The order of the disciplinary authority in the instant case is a non-speaking order and the specific objections raised by the petitioner in his representation was not even considered by the disciplinary authority which reflected total non-application of mind on the part of the disciplinary authority and, therefore, the same cannot be sustained in the eye of law.
The appellate authority also failed to apply its mind while deciding the appeal preferred by the petitioner. The specific points taken in the appeal by the petitioner herein challenging the order of the disciplinary authority were not at all considered and decided by the appellate authority. Therefore, the order of the appellate authority also cannot be sustained in the eye of law. 11
The authoritative pronouncement of the Constitution Bench of the Supreme Court in the case of S. N. Mukherjee vs. Union of India (Supra) and the other decision of the Supreme Court in the case of M/s. Mahabir Prasad Santosh Kumar vs. State of U.P. & Ors. (Supra) are very much relevant in the facts of the present case and should be followed while considering the validity and/or legality of the orders passed by the disciplinary authority as well as the appellate authority.
We have already discussed hereinbefore that the Enquiry Officer while arriving at the conclusion against the petitioner did not assign any reason for not accepting the evidence produced in support of the petitioner. The said Enquiry Officer also did not discuss why the evidence produced by the respondent authorities appealed to him. The Enquiry Officer did not assign any reason for not accepting the evidence adduced by the defence witnesses.
In the aforesaid circumstances, we cannot support the conclusions reached by the Enquiry Officer.
Therefore, the conclusions reached by the Enquiry Officer and the orders passed by the disciplinary authority as well as the appellate authority in the present case cannot be held to be valid.
From the impugned judgment and order passed by the learned Central Administrative Tribunal we find that the learned Tribunal did not consider the aforesaid issues raised by the petitioner in an appropriate manner and unfortunately, in a very slipshod manner decided the said application filed by the petitioner on merits. Various infirmities and/or illegalities in the report of 12 the Enquiry Officer and also in the subsequent orders passed by the disciplinary authority and the appellate authority were not even considered by the learned Tribunal and had escaped the notice of the said Tribunal. The learned Tribunal did not discuss and/or decide the issues raised before it following the settled principles of law.
In view of the reasons discussed hereinabove we have held that the report of the Enquiry Officer cannot be sustained in the eye of law and the order passed by the disciplinary authority as also the order passed by the appellate authority are liable to be quashed.
Therefore, we quash the report of the Enquiry Officer dated 11th May, 2001, the order of dismissal passed by the disciplinary authority dated 25th July, 2001 and the subsequent order dated 25th January, 2002 passed by the appellate authority approving the aforesaid order of the disciplinary authority. For the identical reasons, the impugned order passed by the learned Tribunal on 9th May, 2008 in O.A. 555 of 2002 cannot be sustained and the same is accordingly, set aside.
The respondent authorities are directed to reinstate the petitioner in service forthwith and pay admissible salary and allowances to the said petitioner regularly. We are also of the opinion that in the facts of the present case ends of justice would be met if the petitioner is granted 50% of the back wages. Therefore, the respondent authorities are further directed to pay 50% of the back wages to the petitioner from the date of dismissal till the date of actual resumption of duty in terms of this order. The aforesaid back wages should be paid to the petitioner as early as possible but positively within a period of four weeks from the date of communication of this order. 13
With the aforesaid observations and directions, this writ petition stands allowed. In the facts and circumstances of the present case, there will be, however, 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.]