Calcutta High Court (Appellete Side)
Rajeev Verma vs The Balmar Lawrie & Co. Ltd. And Ors on 1 April, 2024
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
01.04.2024
Court No.13
Item No.2666
AP
WPA 9289 of 2023
Rajeev Verma
Vs.
The Balmar Lawrie & Co. Ltd. and Ors.
Mr. Soumya Majumder
Mr. Kushal Chatterjee
Mr. Debabrata Ray
Mr. Oishik Chatterjee
... For the Petitioner.
1. The respondents are not represented although
affidavit-in-opposition has been filed.
Facts of the case
2. The subject matter of challenge in the instant proceeding is the order passed by a reviewing authority dated 20th March, 2023 pursuant to directions of a coordinate Bench of this Court dated 24th January, 2023 passed in WPA 8916 of 2019 (Rajeev Varma Vs. The Balmar Lawrie & Co. Ltd. & Ors.).
3. The brief facts relevant to the case is that the petitioner was functioning as an Assistant Vice President of the Balmar Lawrie & Co. Ltd. (hereinafter referred to as "the BLCL"). He was deputed to Mumbai in February 2014 to look into the accounts of one Vacations Exotica Destinations Private Limited (hereinafter referred to as "the VEDPL"). The said VEDPL was proposed to be taken over by the BLCL.
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4. The petitioner was directed to look into the books of accounts of the said VEDPL to elicit its valuation and consequently the quantum of money payable by the BLCL to the promoters of the VEDPL to the take over. Between February 2014 till August 2014 the following facts occurred.
5. On 28th February, 2014 the Senior Vice President Finance and Director Finance of the BLCL required the petitioner to upload opening balance of the VEDPL in SAP. On the 18th April, 2014 the CMD of BLCL approved by email, release of payment to a third party on behalf of the VEDPL. On the 23rd April, 2014 the "take over working"
plan was forwarded to Director Finance by the writ petitioner. On 28th April, 2014 opening balance sheet after auditor's verification obtained from the VEDPL was forwarded by the petitioner to the Senior Vice President of Finance, BLCL.
6. On 22nd May, 2014 a statement of amount payable to the VEDPL was emailed by the petitioner to the Senior Vice President, Finance and Director, Finance, the BLCL indicating that a thorough reconciliation of debtors and creditors of the VEDPL was still required to be made. On 26th May, 2014 a statement of amounts payable to VEDPL was emailed to the Senior Vice President, Finance and Director Finance.
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7. On the 30th June, 2014 in furtherance to the statements of account and amount payable to the VEDPL it was reiterated to Director, Finance of BLCL by the petitioner that the debtors and creditors balances must be reconciled in the books and balance sheets of the VEDPL. The said mail similar to others had the subject "Final Accounts VEDPL".
8. The closure of the books of the VEDPL had not occurred at that point of time. A statement of account dated 8th August, 2014 was forwarded to the Director, Finance without any comment from the petitioner. It was not indicated by the petitioner that the accounts forwarded were conclusive. However, on the 18th August, 2014 the petitioner sent a statement of account of the VEDPL as on 8th August, 2014 for perusal. The heading of the attachment was again, however, entitled "final VEDPL statement of account IXLS".
9. Admittedly, as on June 2014 a sum of Rs.4.36 crores was found payable to the VEDPL by BLCL pending bifurcation of debtors and creditors. Yet, only an advance of 2 crores was paid thereafter towards consideration for take over of the VEDPL on June 2014. A sum of Rs.2.62 crores was paid by the Director, Finance upon receipt of the email dated 18th August, 2014 from the petitioner despite the fact that there was no recommendation or certification from the petitioner that the accounts are conclusive or complete.
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10. It was subsequently found that the BLCL had paid certain excess amounts to the VEDPL. It also appears that the excess amounts have been subsequently recovered and adjusted.
11. On the 6th May, 2015 a charge sheet was issued to the petitioner with statements of imputation of misconduct. The petitioner was charged with negligence of work or negligence in performance of duties including malingering or slowing down the work under Rule 26(ix) of the Conduct, Discipline & Review Rules of the Company.
12. The petitioner is also charged with knowingly furnishing false information to the company in respect of any return or information under Rule 26(xx) of the Conduct, Discipline & Review Rules of the Company.
13. An enquiry officer and presenting officer were appointed by the disciplinary authority. The petitioner represented himself before the enquiry officer.
14. The enquiry officer in his report dated 3rd June, 2016 after discussing detailed evidence on record, found that the charges against the petitioner were not proved.
15. The disciplinary authority, however, by order dated 11th April, 2018 disagreed with the findings of the enquiry officer and passed an order of compulsory retirement of the petitioner on 3rd May, 2018. The petitioner had five years service left at the relevant point of time. 5
16. The order of the disciplinary authority was carried in Appeal/Review by the petitioner and was confirmed on the 6th March, 2019. The petitioner filed WP 8916 of 2019 challenging the order of the disciplinary authority, appellate/reviewing authority.
17. A coordinate Bench had set aside the order of the disciplinary authority, appellate/reviewing authority. The proceedings against the petitioner were directed to be reconsidered by a reviewing authority. The reviewing authority was directed to revisit the matter based on the petitioner's review application dated 4th June, 2018.
18. The review authority gave a personal hearing to the petitioner and chose to agree with the earlier reviewing authority, thereby confirming the order of compulsory retirement.
Analysis of this Court
19. It is now well settled that a writ court does not sit in appeal over the findings of authorities in a quasi judicial proceedings. This is more so when there is concurrence between the disciplinary, appellate and reviewing authorities.
20. It is equally settled that in exceptional cases, the writ Court can interfere with the findings of such authorities, inter alia, if there is perversity. 6
21. An order of a quasi judicial authority is perverse and arbitrary, if it ignores vital evidence on record or if the conclusion is not based on any evidence at all.
22. Useful reference in this regard may be made to some decisions of the Supreme Court on the scope of interference by Courts with decision in quasi judicial proceedings. In State of Haryana v. Rattan Singh reported in (1977) 2 SCC 491 at Para 4 it was held as follows:-
"4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence -- not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, 7 Inspector of the Flying Squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground."
23. In Syed Yakoob v. K.S. Radhakrishnan and Ors. reported in AIR 1964 SC 477 it was held at Para 7 as follows:-
"7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art.8
226 to issue a writ of certiorari can be legitimately exercised....."
24. In State of Karnataka v. Umesh reported in (2022) 6 SCC 563 it was held that:-
"22. In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not reappreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether:
(i) the rules of natural justice have been complied with;
(ii) the finding of misconduct is based on some evidence;
(iii) the statutory rules governing the conduct of the disciplinary enquiry have been observed; and
(iv) whether the findings of the disciplinary authority suffer from perversity; and
(v) the penalty is disproportionate to the proven misconduct. [State of Karnataka v. N. Gangaraj, (2020) 3 SCC 423 : (2020) 1 SCC (L&S) 547; Union of India v.
G. Ganayutham, (1997) 7 SCC 463 : 1997 SCC (L&S) 1806; B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80; R.S. Saini v. State of Punjab, (1999) 8 SCC 90 : 1999 SCC (L&S) 1424 and CISF v. Abrar Ali, (2017) 4 SCC 507 : (2018) 1 SCC (L&S) 310] (emphasis added)
25. In Central Council for Research in Ayurvedic Sciences v. Bikartan Das reported in 2023 SCC OnLine SC 996 at Para 60 it was found that:-
"60. So far as the errors of law are concerned, a writ of certiorari could be issued if an error of law is apparent on the face of the record. To attract the writ of certiorari, a mere error of law is not sufficient. It must be one which is manifest or patent on the face of the record. Mere formal or technical errors, even of law, are not sufficient, so as to attract a writ of certiorari. As reminded by this Court time and again, this concept is indefinite and cannot be defined precisely or exhaustively and so it has to be determined judiciously on the facts of each case. The concept, according to this Court in K.M. Shanmugam v. The S.R.V.S. (P) Ltd., AIR 1963 SC 1626, 'is comprised of many imponderables... it is not capable of precise definition, as no objective criterion could be laid down, the apparent nature of the error, to a large extent, being dependent upon the subjective element.' A general test to apply, however, is that no error could be said to be apparent on the face of the record if it is not 'self-evident' or 'manifest'. If it requires an examination or argument to establish it, if it 9 has to be established by a long drawn out process of reasoning, or lengthy or complicated arguments, on points where there may considerably be two opinions, then such an error would cease to be an error of law. (See : Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137.) (emphasis added)
26. As for the expression perversity, in Associate Builders v. Delhi Development Authority reported in (2015) 3 SCC 49 at Para 32 it was explained as follows:-
"32. A good working test of perversity is contained in two judgments. In Excise and Taxation Officer-cum- Assessing Authority v. Gopi Nath & Sons [1992 Supp (2) SCC 312] , it was held: (SCC p. 317, para 7) "7. ... It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
In Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 :
1999 SCC (L&S) 429] , it was held: (SCC p. 14, para 10) "10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse.
But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
(emphasis added)
27. In the meaning of the expression perversity, in Chatrapal v. State of Uttar Pradesh and Anr. reported in 2024 SCC OnLine SC 146 it was held at Para 17 as follows:-
"17. It is trite law that ordinarily the findings recorded by the Inquiry Officer should not be interfered by the appellate authority or by the writ court. However, when the finding of guilt recorded by the Inquiry Officer is based on perverse finding the same can always be interfered as held in Union of India v. P. Gunasekaran3, State of Haryana v. Rattan Singh4 and Chennai Metropolitan Water Supply and 10 Sewerage Board v. T.T. Murali Babu5. In P. Gunasekaran (supra), the following has been held by this Court in para nos. 12, 13, 16 & 17:
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.11
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
28. Applying the above principles what strikes this Court from the facts on record is that in the email on April 2014 till the last email of 8th August, 2014 the petitioner was constantly indicating he was compelled to rely upon the officials of the VEDPL to place before him books of accounts and its transactions. He had no other way to access the same.
29. It was being repeatedly asserted by the petitioner that the other debtors and creditors of the VEDPL were yet to be ascertained and reconciliation of accounts was pending. A sum of Rs.2.46 crores had already paid in June 2014 by the BLCL for taken over of the VEDPL.
30. It is equally undisputed and uncontroverted on record that the petitioner had no role whatsoever to play in authorizing or releasing any payment to the VEDPL. He was only in charge of looking into the accounts of the VEDPL and reporting the GM, Finance and Director, Finance of the financial status of the VEDPL. He did not submit any final accounts.
31. Payments were eventually made as decided by the GM and the Director. The finding of the Reviewing Authority in the impugned order that the petitioner did not deny any negligence on his part is completely incorrect. Before the enquiry officer, disciplinary authority, first and 12 second reviewing authorities that the petitioner cleared denied the same and averted honest and vigilant in his work.
32. There is one vital fact, which could have weighed with the employer and this Court, which could indicate a conclusive finding of the financial position of the VEDPL in the email dated 18th August, 2014. This is the heading at the subject. The subject has already set out hereinabove indicates that what was sent by the petitioner was the final accounts of the VEDPL albeit as on 18th August, 2014.
33. In the other evidence brought on record this Court notices that the petitioner had repeatedly asserted that he had no access to the complete accounts of the balance sheet of the VEDPL.
34. Whether the expression "Final accounts" used by the petitioner in the email dated 18th August, 2014, was what was based on which the Director, Finance and the GM, Finance took a decision to pay a sum of Rs.2.26 crores need to be addressed.
35. This Court finds that in the heading to the email dated 13th June, 2014 the expression "Final accounts statement IXLS" is also used. However, it is clearly evident from the body of the mail that the issue of tallying and bifurcation of debtors and creditors accounts by the two entities the BLCL and the VEDPL as on 01.01.2014 was still pending and the VEDPL's accounts were not ready. 13
36. In the backdrop of the above, the email dated 8th August, 2014 where by the petitioner wrote forwarding forthwith VEDPL accounts statement as on 08.08.2014 for your perusal, does not indicate that the petitioner had stated that any Final verified and conclusive accounts of the VEDPL were being presented before the Director and the AVP, GM, Finance.
37. This Court has noted through the chain of correspondence on record that the headquarters of the VEDPL were extremely anxious and in great hurry to close the transaction to take over the VEDPL, despite the fact that the petitioner had not been able to present full accounts.
38. The petitioner had already indicated that he was not receiving sufficient information from the officials of the VEDPL.
39. The payment of Rs.2 crores being balance amount to the VEDPL by the Director of BLCL could not, therefore, be based exclusively or in any part or portion, on the petitioner's email dated 8th August, 2014. The same appears to be a decision already taken independent of any input from the petitioner's side.
40. This Court notes another curious part of the impugned order. The review authority has not found that the petitioner had ever stated that the accounts submitted by him of the VEDPL were final or conclusive. 14
41. The reviewing authority has also not found that the Director, Finance and GM, Finance placed exclusive reliance on the email communications of the petitioner and the accounts sent by the petitioner particularly on 8th August, 2018.
42. On the contrary, the reviewing authority has not given any weightage whatsoever to the email dated 30th June, 2014 where it was found that the debtors and creditors reconciliation of the accounts of the VEDPL was still pending and outstanding. The impugned order is perverse for being without any evidence and is also found completely without reasons to justify any penalty on the petitioner. The impugned order is therefore based on conjecture and surmise. This Court is to uphold the findings of the enquiry officer dated 3rd June, 2016.
43. This Court also finds that the two charges in the charge sheet against the petitioner are contradictory and self-defeating. A person can either be called a fool or a crook but not both. It appears that the respondents were out to scapegoat the petitioner by hook or crook, for the fiasco committed by themselves.
Conclusion
44. The impugned order of compulsory retirement of the petitioner shall stand set aside. The petitioner shall be deemed to have been in service from the date of passing of 15 the order of the disciplinary authority dated 3rd May, 2018 till the date of his normal superannuation.
45. He shall be entitled to all arrears of salary as if there was no proceedings against him. Such arrears would be paid together with interest at the rate of 8% per annum. The petitioner shall be entitled to calculation of all his terminal benefits based on a full length of service as per the rules of the BLCL. Let all arrears of terminal benefits also be paid to the petitioner with 8% interest per annum.
46. Let all the aforesaid amounts be paid to the petitioner within one month from date.
47. The writ petition is allowed and disposed of.
48. There shall be no order as to costs.
49. All parties shall act on the server copy of this order duly downloaded from the official website of this Court.
(Rajasekhar Mantha, J.)