Calcutta High Court (Appellete Side)
The State Of West Bengal & Ors vs Debabrata Singha on 13 November, 2019
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8 13.11.19 W.P.S.T. 123 OF 2019
Sc
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The State of West Bengal & Ors.
-vs.-
Debabrata Singha
Ms. Chaitali Bhattacharyya
Mr. Mrinal Kanti Ghosh.
.....For the Petitioners.
Mr. Bikash Ranjan Neogi
Ms. Ananya Neogi.
....For the Respondent.
Dipankar Datta, J.
1. O.A. 361 of 2015, at the instance of Debabrata Singha (hereafter the original applicant), was allowed by the West Bengal Administrative Tribunal (hereafter the tribunal) by its judgment and order dated 30th August, 2018. Aggrieved thereby, the respondents in such original application are the petitioners before us in this writ petition under Article 226 of the Constitution of India.
2. Before we proceed to notice the judgment and order impugned, we consider it appropriate to trace the facts and circumstances that drove the original applicant to the tribunal not once but twice.
3. The original applicant claimed that he had been appointed on a Group-D post at Panchagram Primary Health Centre, 24-Parganas on 9th February, 1984 whereupon he had joined the following day. Thereafter, he was transferred from such health centre to Baranagore State General Hospital on 7th December, 1984 and lastly he was transferred to Dr. B.C. Roy Memorial Hospital for Children (hereafter the said hospital) on 20th February, 1986. While being attached to the said hospital, the original applicant was confirmed as a permanent staff by an order dated 17th November, 1987. Having put in more than a decade's service in the said hospital, the original applicant was utterly surprised to find 2 the official respondents restrain him from performing his duties and also from signing the Attendance Register without assigning any reason whatsoever. Subsequently, the pay and allowances of the original applicant were also stopped.
4. Aggrieved thereby, the original applicant had approached the tribunal by filing an application under section 19 of the Administrative Tribunals Act, 1985, registered as O.A. 6039 of 1998. In such application, the original applicant prayed for a declaration that the respondents have no authority to restrain him from attending to his duty without taking recourse to any legal procedure laid down in the West Bengal Services Rule (Part I), 1971 or the West Bengal Services (Classification, Control & Appeal) Rules, 1971 [hereafter the CCA Rules] and for a further direction to the respondents to allow him to join duty as Group-D staff in the said hospital. O.A. 6039 of 1998 was allowed by the tribunal by its judgment and order dated 28th March, 2003. The tribunal held that a permanent Government employee could not have been restrained from discharging duty or from signing the attendance register by an oral order without recording any reason and without giving any opportunity of hearing. The original application was, accordingly, allowed on contest and it was declared that the respondents have no authority to restrain the original applicant from attending to his duty without taking recourse to legal procedure as laid down in the statutory rules. The respondents were further directed to forthwith allow the original applicant to join duty as Group-D staff in the said hospital and to allow him to continue in such position till such time he was terminated or removed from service by due process of law. The tribunal also directed that the original applicant shall be entitled to monthly salaries from the date and time when his salaries have been withheld, within two months from the date of communication of the order.
5. On the allegation that the original applicant had obtained employment by producing fake documents, an FIR was lodged which resulted in the original applicant facing trial before the Judicial Magistrate, First Court at Sealdah in T.R. No. 333/05, State v. Debabrata Singh, under sections 468/471/420 of the I.P.C. By a judgment dated 31st July, 2014, the relevant criminal court acquitted the original applicant albeit on the ground of benefit of doubt. 3
6. In the meanwhile, the respondents in O.A. 6039 of 1998 had challenged the judgment and order dated 28th March, 2003 before this Court by filing a writ petition, which was registered as WPST 596 of 2003. A coordinate Bench of this Court, which had the occasion to consider the said writ petition, by its judgment and order dated 20th March, 2014 disposed of the same by setting aside the impugned order of the tribunal and making necessary directions. The relevant portions from the judgment and order dated 20th March, 2014 of the coordinate Bench read as follows :
"*** Assuming the respondent had secured employment with the Petitioners on the basis of fake documents, it was necessary for the Petitioners to hold a departmental enquiry and to prove the charges levelled against the respondent no.1. An employee cannot be thrown out of service without holding a departmental enquiry. These Petitioners would have to prove that in the departmental enquiry the respondent had rendered service from 1975 to 1998 on the basis of fake documents and that, therefore, he could not be continued in service. Even though the misconduct as alleged against the respondent may have been detected by the State after several years it was till necessary for the State to hold a departmental enquiry before terminating the service of the employee. By not permitting the employee to sign the attendance register to attend work, it could be deemed that the State had terminated the service of the employee especially since there was no order of suspension issued to the respondent No.1.
In our opinion, therefore, it would be futile to remand the matter to the Tribunal at this stage. However, we leave it open to the Petitioners to take action against the respondent in accordance with law. Such action, if any, will be initiated by the State by 15th of July, 2014. Till then the respondent will not be entitled to join duty or to arrears or salary or consequential benefits.
However, we make it clear that if the Petitioners do not initiate action by the aforesaid date, it will be presumed that they do not want to take any action against the respondent No.1. In that event, the respondent shall be reinstated in service with continuity and full back wages and all other consequential benefits.
While deciding whether to take action against the respondent, the State shall bear in mind the decision of the Judicial Magistrate, 1st Court, Sealdah, 24th Parganas dated 31st July, 2008 where the respondent No.1 has been acquitted in G.R. Case No.2129 of 1998 of the charges under Sections 467/468/471/420/120B of the I.P.C. The observations made by the Tribunal or by us shall not influence the result of an enquiry, if any, initiated against respondent No.1."
(underlining for emphasis by us)
7. What followed the aforesaid order of the coordinate Bench was an order dated 27th June, 2014 of the Director of Health Services and ex-officio Secretary to the Government of West Bengal, Department of Health and Family Welfare. Such order was forwarded to the original applicant by the Joint Director (Personal) and ex-officio Joint Secretary to the Government of West Bengal, Directorate of Health Services vide memo dated 10th July, 2014. We consider it 4 appropriate to set out below the entirety of the so called reasoned order passed by the Director of Health Services :
"R E A S O N E D ORDER In pursuance of the order of Hon'ble High Court, Kolkata dated 20.03.2014 passed by the Hon'ble Mrs. Justice Nishita Mhatre & the Hon'ble Mr. Justice Tapash Mookherjee in respect of WPST No. 596 of 2003, the State of W.B. & Ors. -VS- Shri Debabrata Singha & Ors, I have gone through all the papers/documents including the copy of judgement of Hon'ble High Court, Kolkata dated 20.03.2014, copy of judgement of Hon'ble Judicial Magistrate, 1st Court, Sealdah, 24 Parganas dated 31-07-2008 and relevant West Bengal Services (Classification, Control & Appeal) Rules, 1971 for consideration of the case of discontinuation of the services of Shri Debabrata Singha, lastly working as G.D.A. at Dr. B.C. Roy Memorial Hospital for Children, Kolkata-54 (now Dr. B.C. Roy Post Graduate Institute of Pediatric Sciences, Kolkata-54).
In pursuance of the order of Hon'ble High Court, Kolkata dated 20.03.2014 Shri Debabrata Singha was requested under No C/194 dated 24-04-2014 to appear before the Director of Health Services & E.O. Secretary, Department of Health & F.W., on 07-05- 2014 at 3 P.M. to deliver his statement of defence. Shri Debabrata Singha accordingly appeared on the scheduled dated and time and the Director of Health Services & E.O. Secretary, Department of Health & F.W., patiently heard his grievances and allowed him to deliver his statement. Shri Singha delivered his declaration on 07-05-2014. He has also submitted his statement dated 07-05-2014 in response to Memo No. C/194 dated 24-04-2014 separately.
According to statement of Shri Debabrata Singha -
• He was appointed as Class IV Casual Worker in the year 1975 at Panihati S.G. Hospital, 24 Parganas. His date of birth as per his statement is 02-01-1964. • He was offered appointment by the CMOH, 24-Parganas under No. HC/815/1(2) dated 09-02-1984 and as per said order he joined at Panchagram P.H.C., 24- Parganas (now BPHC under South 24 Parganas) on10-02-1984. • Thereafter he was transferred to Baranagar S. G. Hospital 24 Parganas, now under North 24 Parganas, on 07-12-1984.
• Thereafter he was transferred to Dr. B.C. Roy Memorial Hospital for Children, Kolkata-54 now Dr. B.C. Roy Post Graduate Institute of Pediatric Sciences, Kolkata -
54. Regarding the claim of Shri Debabrata Singha that he was working as Gr. IV Casual Worker in 1975 at Panihati S.G. Hospital, 24 Parganas it appears that there is no record showing that Shri Debabrata Singha worked there in the year 1975. It also appears that the age of the said Shri Debabrata Singha during the year 1975 was nearly Eleven (11) years as per his own statement (02-01-1964). As per rules, at the age of Eleven (11) years, no one can be allowed to work as Class IV Casual Worker. Hence, it appears to me that no person in the name of Shri Debabrata Singha was allowed to work at Panihati S.G. Hospital, 24 Parganas in the year 1975 as Class IV Casual Worker. Hence the claim of Shri Debabrata Singha is baseless.
As regards offering appointment by the CMOH, 24 Parganas under
No.HC/815/1(2) dated 09-02-1984 on the strength of which Shri Debabrata Singha claimed to have joined at Panchagram P.H.C., 24 Parganas (now BPHC under South 24 Parganas), on 10-02-1984; a through examination was made. I have gone through all the records of Panchagram P.H.C., 24 Parganas including Acquittance Register and found that there was no employee in the name of Shri Debabrata Singha, working as GDA or any other post at Panchagram P.H.C., 24 Parganas during February, 1984 to 7th December, 1984. Had he worked as GDA or any other post, there must have been his 5 name in the Acquittance Register, at least for a month within the period from March, 1984 to November, 1984. Records do not show disbursement of salary in favour of any employee in the name of Shri Debabrata Singh during March, 1984 to November, 1984 from Panchagram P.H.C, 24 Parganas. Apart from that the Issue Register of the Office of the CMOH, the then 24 Parganas, shows that No. HC/815/1(2) dated 09-02-1984 was used for issuing other letter instead of any appointment letter. Hence the claim of Shri Debabrata Singha about joining at Panchagram P.H.C., 24 Parganas on the basis of appointment letter issued by the CMOH, 24-Parganas under No. HC/815/1(2) dated 09- 02-1984 is not true.
It appears to me that Shri Debabrata Singha managed to work at Dr. B.C. Roy Memorial Hospital for Children, Kolkata-54 (now Dr. B.C. Roy Post Graduate Institute of Pediatric Sciences, Kolkata-54) absolutely on the basis of fake documents.
I, the Director of Health Services & E.O. Secretary, Department of Health & F.W., being the Petitioner, therefore, hold the view considering above findings that the claims of Shri Debabrata Singha about joining at Panchagram P.H.C., 24 Parganas, as G.D.A. on 10-02-1984 and working there up to 07-12-1984 is absurd/baseless beyond any doubt as there was no employee in the name of Shri Debabrata Singha found to have been worked as GDA at Panchagram P.H.C., 24 Parganas. Hence Shri Debabrata Singha has no right to claim as a Government employee and to render service in any Government Health Institution.
In view of the findings noted above I, the Director of Health Services & E.O. Secretary, Department of Health & F.W., W.B., being the Petitioner, after complying with the order of Hon'ble High Court, Kolkata dated 20-03-2014, order, in terms of Rule 11(1)(ii) of the West Bengal Services (Classification, Control & Appeal) Rules, 1971 that:
The said Shri Debabrata Singha is considered as removed from his service with effect from 29-07-1998 i.e., from his date of discontinuation from service by the order of Superintendent, Dr. B.C. Roy Memorial Hospital for Children, Kolkata-54 vide No. BCH/2258/1 dated 29-07-1998 which was issued as per order of the then Director of Heath Services, W.B., dated 28-07-1998.
Thus the application of Shri Debabrata Singha is considered and disposed of accordingly."
(bold in original)
8. Although the order of the Director was titled as a "REASONED ORDER", a perusal of the aforesaid extract would not reveal a single reason as to why the Director of Health Services did not consider it practicable to hold an inquiry into the conduct of the original applicant. We have no hesitation to hold that it was the mere ipse dixit of the Director that an inquiry was not reasonably practicable in terms of the provisions of the CCA Rules, which is evident therefrom.
9. Be that as it may, the said reasoned order was made the subject-matter of challenge before the tribunal once again by the original applicant, by filing O.A. 361 of 2015. By the judgment and order impugned in this writ petition, the tribunal held the order to be illegal and bad and contrary to the provisions of the CCA Rules and, accordingly, set aside the same. The respondents in O.A. 361 of 2015 were directed to reinstate the original applicant with all consequential benefits. 6
10. Having traced the genesis of this writ petition, it is now time to summarise the arguments of Ms. Bhattacharya, learned senior Government advocate appearing in support of the writ petition.
11. Ms. Bhattacharya has invited our attention to page 30 of the writ petition. It appears to be a questionnaire forwarded to the original applicant for answering the several questions therein. The contention advanced is that despite opportunity being granted to the original applicant to produce the relevant documents to support his claim that he had been initially appointed, thereafter transferred and subsequently confirmed in service, documents were not produced and, therefore, it was felt by the Director that holding of a departmental inquiry would be a useless formality leading to the order dated 27th June, 2014 removing the original applicant from service without holding an inquiry.
12. It has further been contended by Ms. Bhattacharyya that in terms of the order of the coordinate Bench dated 20th March, 2014, it was open to the respondents to initiate such action as is permissible in accordance with law and recourse to Rule 11 of the CCA Rules being a permissible course of action which such Bench did not foreclose, no exception ought to have been taken by the tribunal by holding the order of removal to be illegal and bad in law. Our attention was also drawn to the observation made by the coordinate Bench towards the concluding part of its judgment in support of the submission that the coordinate Bench did not make it imperative for the petitioners to initiate an inquiry preceded by issuance of a charge-sheet.
13. Finally, Ms. Bhattacharya submitted that the tribunal committed grave error in not allowing the petitioners to conduct an inquiry into the conduct of the original applicant having regard to the seriousness of the allegation against him.
14. Opposing the writ petition, Mr. Neogy, learned advocate for the original applicant contended that the judgment and order of the tribunal is unexceptionable. Without assigning any reason, the Director of Health Services could not have dispensed with inquiry and consequently, the order of removal is in the teeth of Rule 11(1)(ii) of the CCA Rules. That apart, an opportunity had 7 been extended to the petitioners by the coordinate Bench to conduct an inquiry but not having availed of the same, the tribunal was perhaps left with no other option but to allow O.A. 361 of 2015. He, thus, prayed for dismissal of the writ petition.
15. We have heard the parties and perused the materials on record.
16. The provisions in Rule 10 of the CCA Rules lay down the procedure to be followed for imposing penalties as specified in Rule 8 thereof. In terms of Rule 10, the disciplinary authority of a delinquent employee is required to draw up a charge-sheet containing the substances of the imputations of misconduct or misbehaviour, statement of imputations of misconduct or misbehaviour in support of each article of charge, a list of documents by which and a list of witnesses by whom the charge(s) are supposed to be sustained. Sub-rules (3) to (16) of Rule 10 mandates further steps which the disciplinary authority is required to take for culmination of the disciplinary proceedings, according to law. Such sub-rules, in effect, contain appropriate safeguards so that any inquiry initiated on the basis of a charge-sheet does not suffer from the vices of unfairness, unreasonableness or arbitrariness and the delinquent employee is granted adequate and sufficient opportunity to defend himself.
17. Rule 11 of the CCA Rules, however, provides for a special procedure. In our view, Rule 11(1)(ii) is akin to clause (b) of the second proviso to Article 311(2) of the Constitution. In special cases, law permits the disciplinary authority to dispense with a formal inquiry if, for reasons to be recorded in writing, it is specified that it is not reasonably practicable to hold such inquiry.
18. A coordinate Bench of this Court, of which one of us (Dipankar Datta, J.) was a member, in its decision dated 1st October, 2019 on MAT 239 of 2017 (Union of India & Ors. -v.- Sri Rajesh 8 Kumar Singh) with COT 124 of 2018 (Rajesh Kumar Singh -v.- Union of India & Ors.) had the occasion to consider the provisions contained in Rule 37(b) of the Central Industrial Security Force Rules, 1969. In exercise of the power conferred by Rule 37(b) thereof, a member of the CISF was dismissed from service without holding an inquiry on the ground that it was not practicable to do so. While upholding the order of the writ court under challenge in the appeal, the coordinate Bench noticed the decisions of the Supreme Court dealing with similar provisions starting from Union of India v. Tulsiram Patel : AIR 1985 SC 1416, followed by Satyavir Singh v. Union of India : (1985) 4 SCC 252, A. K. Sen v. Union of India : (1985) 4 SCC 641, Chief Security Officer v. Singasan Rabi Das : AIR 1991 SC 1043; Chandigarh Administration, Union Territory, Chandigarh v. Ajay Manchanda, (1996) 3 SCC 753, Tarsem Singh v. State of Punjab : (2006) 13 SCC 581, and Risal Singh v. State of Haryana : (2014) 13 SCC 244. The common thread running through all such decisions is that the object of dispensing with an inquiry in a special case is based on public policy, conceived in public interest and such provision is to be applied for public good. The power to dispense with an inquiry must be exercised with due care, caution and circumspection and the decision cannot rest solely on the mere ipse dixit of the disciplinary authority. It is not open to a disciplinary authority to dispense with an inquiry lightly or arbitrarily or out of ulterior motive or merely to avoid it. The subjective satisfaction arrived at by the disciplinary authority must be based on objective criteria. A decision without recording reason cannot be sustained and even where reasons are assigned, the same are justiciable. The decision in Bangalore Medical Trust v. B. S. Mudappa : (1991) 4 SCC 54, was also referred to on the point of exercise of discretion by a statutory authority.
19. In the absence of any reason recorded in the impugned order removing the original applicant from service, we hold that such an order apart from being contrary to and/or in violation of Rule 11(1)(ii) of the CCA Rules, cannot also be sustained in view of the decision in Risal Singh (supra).
20. The contention that answers given by the original applicant to the questionnaire make it clear that there was no need for a formal inquiry since 9 he could not produce any document appears to us to be one in desperation. It for the disciplinary authority to have the charge proved. The initial burden has to be discharged by the disciplinary authority. It is not the law that the initial burden is on the employee charged to disprove the charges. The contention, then, stands overruled.
21. We are now tasked to decide the other contention of Ms. Bhattacharya based on the decision of the coordinate Bench dated 20th March, 2014. It is no doubt true that the coordinate Bench, in the operative part of the order, left it to the respondents to initiate action in accordance with law but such liberty cannot be read divorced from what was expressed in the body of the decision, i.e., it is a departmental inquiry that should have been initiated before the service of the original applicant stood terminated without issuing a written order to that effect. Having read the decision of the coordinate Bench dated 20th March, 2014 in between the lines, we find no reason to form an opinion that the coordinate Bench permitted the respondents to dispense with an inquiry. On the contrary, we have reasons to believe that the decision to dispense with inquiry had not been taken bona fide and was intended to avoid any inquiry being conducted.
22. In the present case we are not called upon to examine whether the reasons given by the Director of Health Services either satisfied the test of fairness or reasonableness, for, there are no reasons at all in the reasoned order as to why the Director did not consider it reasonably practicable to dispense with 10 inquiry. It is on this short ground that we share the view expressed by the tribunal that the order dated 27th June 2014 is illegal and bad.
23. Having held so, we are also of the view particularly having regard to the seriousness of the allegation against the original applicant, that the tribunal ought to have extended to the respondents before it one final opportunity to proceed against the original applicant by issuance of a charge-sheet in terms of Rule 10 of the CCA Rules.
24. While upholding the order of the tribunal setting aside the order dated 27th June 2014, we direct/observe as follows:
(i) If so advised, the relevant disciplinary authority of the original applicant may issue charge-sheet to him for any misconduct/misdemeanour on his part, within a fortnight from date;
(ii) the original applicant shall have a week's time to deny the charges;
(iii) if the original applicant denies the charge, an inquiry officer shall be appointed to inquire into the charges levelled against the original applicant;
(iv) the inquiry on charge(s) not admitted shall be conducted strictly in accordance with the provisions of Rule 10 of the CCA Rules;
(v) the original applicant shall cooperate with the inquiry officer and shall not seek any unnecessary adjournment;
(vi) if an adjournment is at all considered necessary, the same shall not be granted in excess of two days and it shall be granted only once;
(vii) having regard to the time-line we propose to impose, it would be preferable to have the inquiry conducted on day to day basis;11
(viii) the inquiry, if initiated, shall be completed by 30th April, 2020;
(ix) if the report of inquiry is adverse to the interest of the original applicant, the same shall be furnished to him by the disciplinary authority for inviting comments thereon;
(x) the original applicant shall have a fortnight's time from receipt of the inquiry report to give his comments thereagainst; and
(xi) within a further period of a fortnight thereafter, the disciplinary authority shall proceed to take an appropriate final decision on such representation bearing in mind the evidence that is collected in course of inquiry and thereby terminate the proceedings.
Since the provisions relating to second show-cause which were earlier available in Article 311 of the Constitution have been done away with, but such procedure still exists in the CCA Rules, we have consciously not directed compliance with such procedure in view of the decision in Managing Director, ECIL, Hyderabad v. B. Karunakar : AIR 1994 SC 1074.
25. It is made abundantly clear that should the charge-sheet be not issued to the original applicant within a fortnight from date and/or the inquiry is not completed by 30th April, 2020, it shall be deemed that the petitioners before us are no longer interested in proceeding against the original applicant and in such a case, the proceedings shall be deemed to have lapsed with the result that the order of the tribunal regarding consequential benefits shall become operative.
26. The writ petition stands disposed of on the above terms. There shall be no order as to costs.
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Photostat certified copy of this order, if applied for, be furnished expeditiously.
(Protik Prakash Banerjee, J.) (Dipankar Datta, J.)