Calcutta High Court
Dr. Tapas Kr. Chandra vs Indian Statistical Institute on 15 May, 2006
Equivalent citations: 2007[2]S.T.R.315
ORDER Arun Kumar Mitra, J.
1. The writ petitioner in the instant writ petition challenged the departmental proceeding initiated against him, the final order passed by the Disciplinary Authority and the appellate order passed by the Appellate Authority (being Annexure P-14 to the writ petition).
Facts in Brief
2. The writ petitioner is a Professor of Statistics working the Indian Statistical Institute (respondent No. 1 herein). Since 1991 the writ petitioner has been working as Professor and prior to that he was an associated Professor. He is a Ph.D.
3. On 26.12.2003 the petitioner allegedly took a book under the name. "Real Mathematical Analysis" by G.G. Pugh. The petitioner did not make any entry before the Librarian and/ or took the book inside his sweater and tried to get away with the book. The librarian, on suspicion, apprehended him and he gave a note to the Librarian that he took forgetting to issue the book from the counter. Such note of the petitioner has been made Annexure P-l to the writ petition. On the same date i.e., on 26,12. 2003 the petitioner also wrote a letter to the Director of the Institute that he took the book and a key and came out of the Library hurriedly forgoing to the Reprography unit forgetting to go to the issuing counter. However, the person at the check point didn't listen to his explanation and complained that he was taking the book intentionally. The petitioner also alleged that the person at the check point harassed him unnecessarily.
4. On 31st December, 2003 the Director of the institute issued a memo stating inter alia that in view of some irregularities brought to his notice on 26th December, 2003, by the library of the Institute, Professor Chandra (the petitioner herein) is debarred from using Library facilities for six months w.e.f. 1st January, 2004.
5. On 17th March, 2004 an office memo was issued by the Director enclosing a charge-sheet containing articles of charges and also containing the documents relied upon and further containing the list of witnesses as Annexures 1,2 and 3 to the said Office memo. The said show cause along with the charge-sheet has been made Annexure-P3 to the writ petition.
6. The writ petitioner was directed to submit his written submission within ten days of receipt of the communication and the petitioner was also directed to submit whether he wants to be heard in person or not.
7. The petitioner replied to the said memo dated 17th March, 2004 through his letter/ reply dated 26.3.2004. In the said reply in 23 paragraphs the petitioner gave his explanation and denied the charges levelled against him.
8. The writ petitioner in his reply stated that he has been put to double jeopardy inasmuch as once he was punished by the Director accepting the incident as technical irregularity and by that punishment the petitioner was debarred from entering into the Library for six months. The petitioner accepted the punishment and thereafter this charge-sheet is an additional punishment and such punishment is disproportionate to the charges. The petitioner in his defence stated that his elder brother Tarun Kr. Chandra died on 18th November, 2003 and as such he may mentally upset inasmuch as his said brother was very much close to him. The petitioner in his defence also stated that he was treated by Dr. R. Ghosh Roy and Dr. Rabin Chakraborty. The petitioner enclosed copies of the prescriptions of those two doctors dated 15.1.2004, 24.1.2004 and 26.1.2004. Those prescriptions have been made Annexure-P3 collectively.
9. The petitioner also took a defence that he informed the Librarian in writing on the very same date that the incident happened because of his forgetfulness. The petitioner stated that the Director cannot give him second punishment as per the certified Services Standing Order meant for Indian Statistical Institute (hereinafter termed as said Institute).
10. At this juncture, the writ petitioner moved a writ petition on 13.7.2004 being W.P. No. 12128(W) of 2004 and prayed for quashing of the departmental proceeding. The said writ petition was dismissed by the learned Single Judge. The petitioner preferred appeal before the Hon'ble Division Bench against the said order of dismissal. The said appeal was numbered as M.A.T. 2386 of 2004.
11. It has been alleged by the petitioner on 13.7.2004 he gave a letter to the Director informing him that he will participate in the inquiry proceeding without prejudice, to his rights and contentions in the appeal. However, evidence of different witnesses was taken and according to the petitioner deposition was taken from such persons even whose names did not appear in the witness list.
12. The inquiry was conducted and between 14.7.2004 to 26.7.2004 the petitioner demanded copies of the evidence so that he can cross-examine but such copies were not supplied. However, during the pendency of the appeal and stay application, on 18.8.2004 final order was passed in the disciplinary proceeding and penalty was imposed in stoppage of two increments with cumulative effect, No copy of the inquiry report was served upon the petitioner. The petitioner preferred appeal and the Appellate Authority dismissed the appeal and confirmed the order passed by the Disciplinary Authority. According to the petitioner, the Appellate Authority dismissed the appeal without adjudicating the issues involved therein.
13. Affidavit-in-opposition has been filed on behalf of the respondent Nos. 1, 2 and 3. In the opposition the respondent authority took a stand that the date 26.12.2003 was a date when there was no urgency of giving class notes inasmuch as Christmas vacation was there and naturally, the petitioner didn't have to go away hurriedly taking the book inside his sweater.
14. In the opposition it has been stated that the petitioner has been working in the College for a long time and has been taking books from the Library also for a long time and according the procedure for issuance of Library books is a relex action and the petitioner could not forgot the entire procedure. It was also stated in the affidavit-in-opposition that from the prescriptions it would appear that the petitioner was unmindful on and from 10th January, 2004 and the incident happened on 26th December, 2003.
15. In the opposition it was further contended that chance was given to the petitioner to defend his case and since the allegations was admitted, question of prejudice for non-supply of the inquiry report does not arise.
16. In the opposition it was further stated that the petitioner moved this Hon'ble Court once challenging the maintainability of the proceeding and alleging double jeopardy but the said writ petition of the petitioner war dismissed.
17. It was further contended in the opposition that the order passed by the Director debarring the petitioner from entering into the Library for six months was passed as on interim measure and not by way of punishment and the question of double jeopardy as such doesn't arise.
18. It was also stated in the opposition that the inquiry cannot be termed to be perverse.
19. It was further stated that legal assistance couldn't be given or rather was not given to the petitioner inasmuch as there was neither any legal complication nor the respondent authorities presented the case through any lawyer. The writ petitioner was given chance to defend his case and on scrutiny of all the documents on record the authority passed the order and the order is in accordance with the Standing Services Order and is not illegal.
20. It has further been contended that the Appellate Authority rightly passed the order and confirmed the order passed by the Disciplinary Authority.
21. The writ petitioner submitted affidavit-in-reply to the said affidavit-in-opposition. In the reply in paragraph 4 it has been stated that in Rule 4.1 of the Service Conduct Rules of the Indian Statistical Institute misconduct has (not) been defined and the said term has been left to the employer to exercise its discretion or malice or whims.
22. The petitioner reiterated his stand taken in the writ petition, denied the allegations made in the affidavit-in-opposition and stated that he was denied cross-examination and no copy of the evidence of witnesses were given to him for the purpose of effective cross-examination.
23. According to the petitioner, it is well settled that unless copies of evidence or witness are given before hand, no effective cross-examination can be made.
24. The petitioner in the reply also stated that it is improper on the part of the Director being the Disciplinary Authority to pass remark against the petitioner in a biased manner particularly when he was the Disciplinary Authority with regard to the charges-in-question.
25. The petitioner reiterated that no copy of inquiry report was given to him before passing the final order. The petitioner alleged bias against the Director.
26. In the reply it was further stated that the authority has issued charge-sheet without holding any preliminary inquiry, and though there was no allegation for theft of book but in the affidavit-in-opposition further imputation of charges have been levelled alleging commission of offence under Section 379, IPC.
27. It has further been stated that it is not open to add charges which is not in the original charge-sheet nor can the Inquiry Officer make any finding on a charge which is not in the charge-sheet.
28. The petitioner further stated that initially, punishment was given and as an afterthought after a long period charge-sheet was issued.
29. The petitioner in his reply reiterated his stand and submitted that principle of natural justice has been violated, he was not allowed any lawyer to assist him for effective cross-examination or the proceeding was completed in an illegal and irregular manner and punishment given for the second time is disproportionate and harsh and accordingly, the petitioner prayed for quashing and/or vetting aside the final order at well as the appellate order.
SUBMISSIONS
30. The learned Counsel for the writ petitioner submitted written notes on submission dealing with the petitioner's submission as well as disputing the submission made by the learned Counsel for the respondent authorities.
31. The learned Counsel for the petitioner has made his submission in accordance with the allegations made in the writ petition and the reiteration made in his reply. The main points of arguments of the learned Counsel for the writ petitioner are as follows.
32. The term 'misconduct' has not been defined in, 4.0 and 4.1 of the Standing Services Order, 1963 and therefore, the petitioner has been punished on vague indefinite charges and the learned Counsel for the petitioner on this score relied on three Supreme Court decisions which would be enumerated by me after discussion of the submissions.
33. Initially, the Director held that it is mere an irregularity and punished the petitioner under Rules 10.1A and 10.1B. The second proceeding is therefore, double jeopardy. The petitioner obeyed the order of the Director and accepted the first punishment and as such the second proceeding itself is perverse.
34. The charge-sheet suffers from perversity and the charge-sheet should be set aside on the ground of mala fide and/or bias.
35. When the Director held that it is a mere irregularity, he cannot again start the proceeding and there is no mens rea.
36. The Director issued the charge-sheet and the show cause. The petitioner replied to the said show cause and/or charge-sheet before the Director and the Acting Director considered the show cause and says that the explanation is not satisfactory; according to the learned Counsel the Director cannot delegate his power to Acting Director.
37. The learned Counsel further submitted that his client was not given adequate opportunity to defend his case and his client was not allowed legal assistance particularly when the respondents took the assistance of a lawyer.
38. The learned Counsel further submitted that adequate opportunity to defend means and includes right to get copy of evidence of witnesses and right to cross-examine them as provided in Rule 11.4.1 of the said Standing Service Order and the learned Counsel submits that this is statutory violation and the authority when doesn't act in terms of the statute then its action is illegal.
39. The learned Counsel further submitted that principles of natural justice have been violated. The note to Rule 11.5.2 of the said Standing Order provides that if the proceeding is not completed within two months there must be a report to the Director but the following dates will prove that there is violation of the said Rule:
(i) March 17th, 2004 (Charge Sheet)
(ii) June 17th, 2004 (Inquiry begins)
(iii) July 30th, 2004 (Date fixed for hearing)
(iv) August 17th, 2004 (Director's Order)
(v) September 15th, 2004 (Appellate Order).
40. The learned Counsel also submitted that no copy of the inquiry report was served on the petitioner and it caused serious prejudice to the petitioner since he was prevented from taking proper grounds of appeal under Rule 12.1.1 and also because the petitioner has not been supplied copies of evidence.
41. The learned Counsel submits further that when this final order is passed on the basis of an inquiry report, the said report is to form the part of the final order and non-supply of the same makes the final order illegal.
42. The learned Counsel further submitted that the Appellate Authority must also give a personal hearing as provided in Rule 12.3 and an appeal cannot be rejected without hearing the appellant. The Appellate Authority must also give reasons and the appellant has a right to know as for what reason his appeal is rejected.
43. The learned Counsel lastly submitted that the order of the Disciplinary Authority as well as the Appellate Authority suffers from bias, mala fide and perversity and as such both the final order and the appellate order should be set aside.
44. The learned Counsel for the petitioner in support of his contentions relied on and/ or referred to various decisions. Since on each point of submission the learned Counsel referred to so many judgments I propose to deal with the principal judgment and refer to the other judgments inasmuch as it is not humanly possible to deal with each and every judgment cited by the learned Counsel on each point of his submission.
45. On the point of proportionality of punishment the learned Counsel relied on a decision reported in Colour Chem Limited v. A.L. Alaspurkar and Ors. . The observations made in paragraph 11 are quoted hereinbelow:
11. However, this is not the end of the matter. Looking to the nature of the charges levelled against the delinquent-respondents it has to be appreciated that all that was alleged them was that they were found sleeping in the working hours of the night' shift almost near dawn at 0.30 a.m. having kept the machine in a running condition without seeing to it that proper raw material was inserted, therein. Even on the basis that it was a major misconduct which was alleged and proved, looking to the past record of the service of the delinquents no reasonable employer could have imposed punishment of dismissal. The past record was to the effect that respondent No. 3 was once found allegedly gambling in the factory premises but was in fact found to be playing cards on a Diwali day which was a public holiday, while the only past misconduct alleged against respondent No. 4 was that on one occasion he was warned for negligent discharge of duty. Looking to the nature of the charges levelled against them, therefore, and even in the light of their past service record it could not be said that for such misconducts they were liable to be dismissed from service. Such punishments patently appear to be grossly disproportionate to the nature of the charges held proved against them. The finding reached by the Labour Court on facts remains unassailable. Once that conclusion is reached even apart from non-application of Clause (g) of Item I of Schedule IV of the Act. Clause (a) of Item I of the said Schedule of the Act gets squarely attracted as it would amount to victimization on the part of the management which can be said to have imposed a most unreasonable punishment on these employees. In this connection learned Senior Counsel for the respondent workmen has rightly pressed in service a decision of a Bench of the three learned Judges of this Court in the case of Hind Construction AIR 1965 SC 917 (supra). In that case this Court was considering the jurisdiction and power of the Industrial Court during the time when Section 11-A of the Industrial Disputes Act, 1947 was not on the Statute Book. Considering the nature, of the punishment imposed on the workmen, who had gone on strike, because they had not reported for duty on a day which otherwise was a holiday but which was declared by the management to be a working day, this Court speaking through Hidayatullah, J. made the following pertinent observations at page 88 (of SCR): (at p. 919 of AIR) of the Report:
But where the punishment is shockingly disproportionate, regard being had to the particular conduct and the past record or is such, as no reasonable employer would ever impose in like circumstances, the Tribunal may treat the imposition of such punishment as itself showing victimization or unfair labour practice....
It has to be kept in view that these observations were made by this Court at a time when unfair labour practices were not codified either by the Industrial Disputes Act or even by the present Act. The present Act tried to codify unfair labour practices on the part of the employer by enacting the Act in 1972 and even the Industrial Disputes Act being the Central Act also followed the Maharashtra Act and taking a leaf from the book of Maharashtra Legislature. Parliament introduced the concept of unfair labour practices by inserting Chapter V-C by Act No. 46 of 1982 w.e.f. 21st August, 1984. Sections 25-T and 25-U of the Industrial Disputes Act deal with 'Prohibition of unfair labour practice' and 'penalty for committing unfair labour practices' respectively. The term 'unfair labour practice was defined by the Industrial Disputes Act by inserting Section 2(ra) with effect from the very same date i.e. 21 st August, 1984 by the very same Act, i.e. Act No. 46 of 1982 to mean, 'any of the practices specified in the Fifth Schedule'. The Fifth Schedule of the Industrial Disputes Act, which saw the light of the day pursuant to the very same Amending Act, deals with 'unfair labour practices' which are a mirror image and replica of the unfair labour practices contemplated and codified by the present Maharashtra Act. But apart from these subsequent statutory provisions which tried to codify unfair labour practices on the part of the employers, the basic concept of victimization as laid down by this Court in Hind Construction's case (AIR 1965. SC 917) (supra) holds the field and is not whittled down by any subsequent statutory enactments. Not only it is not given a go-bye but it is reiterated by the present Act by enacting Clause (a) of Item I of Schedule IV of the Act meaning thereby any discharge or dismissal of an employee by way of victimisation would be unfair labour practice.
46. On the point of perversity of the proceeding the learned Counsel relied on the decision Reserve Bank of India v. C.L Tohra . The learned Counsel submitted that in judgment in paragraph 4 the Hon'ble Apex Court laid down the principle that when an employee has surrendered to his employer regarding his mistake then this technical irregularity is not such an action which brings about disciplinary proceeding and no foundation is there in respect of said proceeding.
47. The learned Counsel on the point of his submission that the action of the petitioner was merely an irregularly and there was error of judgment, relied on the Hon'ble Apex Court decision reported in R.A.N. Singh v. State of Haryana . On the same principle the learned Counsel relied on the judgment reported in 1986 Vol. (2) CHN 53 : 1986 Lab IC 1961, 1998 Vol (2) CLJ 204, 1992 Vol. (2) SCC 478 (sic) and .
48. The learned Counsel submitted that here there was no mens rea and on this count the learned Counsel relied on the decision reported in Dr. U.N. Biswas v. Union of India 1998 Vol. (2) CHN 34. The learned Counsel relied on the observations made in paragraph 51 of this judgment which is quoted here in below:
51. In our view, every action or inaction does not and cannot amount to misconduct unless there was some mens rea or some lapses of high magnitude. The term mens rea refers to the state of mind of the accused at the time of the commission of an act. The traditional maxim as "actus non-facilt reum nisi mens sit res", i.e. the act is not guilty unless the mind is also guilty. The specific requirement of mens rea is that the accused has been acting maliciously;
49. The learned Counsel then sought to define the term 'misconduct' and submitted that misconduct relates to official duty. The learned Counsel in this regard relied on the decision reported in Sk. Mentu v. State of West Bengal 2003 Vol. (3) CHN 8. The learned Counsel relied on the observations made in paragraph 14 of this judgment which are quoted hereinbelow:
14. After hearing the learned Counsel for the parties and after going through the aforesaid decision, I am of the view that the principles laid down in the said decision cannot have any application to a case where the alleged misconduct is in no way connected with an employee's duty in course of employment. It is true that if in course of employment or otherwise an employee commits any act which is an offence against property or person of the employer or any of his co-employees, the employer is entitled to make separate investigation in addition to the regular criminal proceeding initiated by State. For instance, if allegation of misappropriation of employer's money is alleged or allegation of assault on any other co-employee in course of official duty is alleged in such a case, the employer is free to initiate departmental proceeding notwithstanding the fact that conduct is also an offence within the definition of Indian Penal Code: but in a case, where the alleged misconduct, although an offence under Indian Penal Code, has nothing to do with the employment of the employee and not done in course of employment and at the same time, such offence is not committed either against the property or person of the employer or any employee, such an allegation must be proved in accordance with the provisions contained in the Code of Criminal Procedure. Ultimately, if the competent Court finds the employee guilty of such offence and the employee is concerned, such finding of guilt and imposition of punishment is a ground for taking disciplinary proceeding against the petitioner and consequently, the employee - may be proceeded against departmentally. But in such a case, an employer has no authority to investigate the alleged crime which is within the sole jurisdiction of the competent Criminal Court within the meaning of Code of Criminal Procedure. In this connection reference was made to the provisions contained in Section 4 of the Code of Criminal Procedure which are quoted hereinbelow:
"Section 4. Trial of offences under the Indian Penal Code and other laws.-(1) All offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into tried, and otherwise dealt with according to the same provisions, but subject to the enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
50. On the point of application of power in the matter of disciplinary proceeding, the learned Counsel for the petitioner relied on a decision reported in Om Prakash Joshi on behalf of Om Prakash Sharma alias Giga Sharma v. Commissioner of Police, Calcutta and Two Ors. 11 CWN 858.
51. On the point of adequate opportunity to defend the learned Counsel relied on a decision reported in 1998 Vol. (2) CLJ 86 (sic) and AIR 1964 SC 358.
52. The learned Counsel on the point of his submission regarding the refusal of the authority in the matter of cross-examination of witness, which according to the learned Counsel is also violative of principle of natural justice and fair play relied on the decision reported in Union of India v. B.N. Jha . The learned Counsel laid stress on the observations made in paragraphs 25, 26 and 27 of the judgment which are quoted hereinbelow:
25. Natural justice as is well known is founded on two basic principles:
(a) Audi alterant pattern.
(b) Nemojudex in cause sau.
"26. The duty to act fairly is the theme of the principles of natural justice. The rule generally applies with full force to conduct leading directly to a final act of decision."
"27. In Halsbury's Laws of England Vol. (1). 4th Edn., it is stated:
85...Thus a presumption that natural justice must be observed will arise more readily where there is an express duty to decide only after conducting a hearing or inquiry or where the decision in one entailing the determination of disputed questions of law and fact. prima facie moreover a duty to act in accordance with natural justice will arise in the exercise of a power to deprive a person of his livelihood or of his legal status where that status is not merely terminable at pleasure, or to deprive a person of liberty or property rights or another legitimate interest or expectation, or to impose a penalty on him; though the conferment of a wide discretionary power exercisable in the public interest may be indicative of the absence of an obligation so to act. Where a discretionary power to encroach upon individual rights is exercised, factors to be taken into account in deciding what fairness requires in the exercise of the power include the nature of the interests to be affected, the circumstances in which the power falls to be exercised and the nature of the sanctions, if any, involved. The content of the duty to act fairly will normally be very limited where the authority is in the course of exercising a function not culminating in a binding decision, but that may not be the case if the wording of the grant of powers or the context indicates that a fair hearing ought to be extended to persons likely to be prejudicially affected by an investigation or recommendation.
It has further been observed therein".
94. Audi alteram partem. -The rule that no man shall be condemned unless he has been given prior notice of the allegations against him and a fair opportunity to be heard is a cardinal principle of justice. This rule has been refined and adapted to govern the proceedings of bodies other than judicial Tribunals, and a duty to act in conformity with the rule has been imposed by the common law on administrative bodies not required by, statute or contract to conduct themselves in a manner analogous to a Court. Moreover, even in the absence of any charge the severity of the impact of the discretionary decision on the interests of an individual may suffice in itself to attract an implied duty to comply with this rule.
53. The learned Counsel on the same point of submission regarding illegality and impropriety of the procedure relied on a decision reported in 1986 Vol. (2) CHN 416.
54. On the point of non-supply of inquiry report the learned Counsel for the petitioner relied on several decisions, i.e., , 1993 Vol. (3) SCC 727 (sic), 2003 Vol. (3) SCC 734 (sic), 2004 (Vol. (7) SCC 318 (sic), . The learned Counsel mainly laid stress on the observations made in paragraphs 18 to 20 of the decision of Hon'ble Apex Court reported in Divisional Manager, Plantation Division Andaman and Nicobar Islands v. Munnu Barrick , and the said paragraphs are quoted hereinbelow for convenience of discussion.
18. The Presiding Officer, Labour Court, as noticed hereinbefore, committed a manifest error in invoking Article 311 of the Constitution of India in the instant case."
"19. In Karunakar 1994 Lab IC 762 this Court has clearly held that the employee must show sufferance of prejudice by non-obtaining a copy of the enquiry report."
"20. This Court in Canara Bank while following Karunakar held (SCC p. 572, para 19):
19. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.
55. On the point of not allowing the petitioner oral hearing, the learned Counsel for the petitioner relied on the decision .
56. On the point of giving reasons in the order by the Appellate Authority, the learned Counsel relied on the following decisions:
AIR 1992 Cal 235 (sic), , 2005 Vol. (3) CHN I.
57. The learned Counsel mainly relied on the judgment reported in State of Punjab v. Bhog Singh AIR 2004 SC 1203, and laid stress on the observations made in paragraph 6 of this judgment which is quoted hereinbelow:
6. Even in respect of administrative orders, Lord Denning, M.R. in Breen v. Amalgamated Engg. Union, observed: "The giving of reasons is one of the fundamentals of good administration." In Alexander Machinery (Dudley) Ltd. v. Crabtree, it was observed: "Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at." Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx." It can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reasons is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before the Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable Face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance.
58. Lastly, when making submission that the initiation of disciplinary proceeding is bad in law and is liable to be set aside, the {earned Counsel relied on the Apex Court decision reported in The Managing Director, U.P. Warehousing Corporation v. Vijay Narayan Vajpayee , and the learned Counsel relied on the observations made in paragraphs 18 and 19 of this decision but since these two' paragraphs are not relevant those are not quoted.
59. As a counter to the submissions of the learned Counsel for the petitioner. Mr. Mukherjee, the learned senior Counsel for the respondent institute submitted that the petitioner in fact admitted his guilt and now there cannot be any scope for shifting or altering his position. Mr. Mukherjee submitted that the petitioner was restrained from using the Library for six months as an interim measure and this was not the consequence of any departmental proceeding.
60. Mr. Mukherjee further submitted that the petitioner earlier moved a writ petition challenging the order of the Director restraining the petitioner from using the library for six months and the said writ petition was dismissed and as such the petitioner cannot again challenge the said order of the Director and cannot argue and/or plead double jeopardy. In fact the departmental inquiry was to be started against the petitioner and as an interim measure the petitioner was asked not to use the library for six months.
61. Mr. Mukherjee submitted that the petitioner himself made a representation in which the petitioner admitted that he committed the said offence by mistake.
62. Then Mr. Mukherjee also submitted that the question of supplying copy of inquiry report to the petitioner does not arise inasmuch as the petitioner committed the offence, admitted his guilt and non-supply of copy of the inquiry report does not affect the petitioner prejudicially.
63. Mr. Mukherjee submitted that in fact through a written representation the petitioner admitted his guilt and thereafter nothing remains for him to argue that there is double jeopardy or the petitioner was not given any chance etc. Mr. Mukherjee in this context relied on a decision reported in AIR 1967 Cal 297. On the same principle the learned Counsel Mr. Mukherjee relied on an Apex Court decision reported in Motilal Jain v. Ramdasi Devi (Smt.) and Ors. , Mr. Mukherjee laid emphasis on the observations made in paragraph 9 of this decision which are quoted hereinbelow:
9. That decision was relied upon by a three-Judges Bench of this Court in Syed Dastagir case , wherein it was held that in construing a plea in any pleading, Courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law on one's case for a relief. It is pointed out that in India most of the pleas are drafted by Counsel and hence they inevitably differ from one to the other: thus, to gather the true spirit behind a plea it should be read as a whole and to test whether the plaintiff has performed his obligations, one has to see the pith and substance of the plea. It was observed . (SCC Headnote):
Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) of the Specific Relief Act, 1963 does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of 'readiness and willingness' has to be in spirit and substance and not in letter and form.
It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfill his part of the obligations under the contract which is the subject-matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit for specific performance of contract for sale.
64. Mr. Mukherjee on the same principle also referred to the decisions of the Apex Court and . Since the judgment is not encumbered, all the decisions on the same principle have not discussed.
65. Mr. Mukherjee submitted that when the petitioner has admitted his guilt there is no question of violation of the principle of natural justice. In this regard Mr Mukherjee relied on a decision reported in State Bank of Patiala v. S.K. Sharma , and relied on the observations made in paragraphs 11 and 28 of this decision which are quoted hereinbelow (at pp. 1674-75 and 1681 of AIR):
11. It is not brought to our notice that the State Bank of Patiala (Officers) Service Regulation contains provision corresponding to Section 99, CPC of Section 465, Cr.P.C. Does it mean that any and every violation of the regulations renders the enquiry and the punishment void or whether the principle underlying Section 99, CPC and Section 465 is applicable in the case of disciplinary proceedings as well. In our opinion, the test in such cases should be one of prejudice, as would be later explained in this judgment. But this statement is subject to a rider. The regulations may contain certain substantive provisions, e.g., who is the Competent Authority to impose a particular punishment on a particular employee/officer. Such provisions must be strictly complied with. But there may be any number of procedural provisions which stand on a different footing. We must hasten to add that even among procedural provisions, there may be some provisions which are of a fundamental nature in the case of which the theory of substantive compliance may not be applicable. For example, take a case where a rule expressly provides that the delinquent officer/employee shall be given an opportunity to produce evidence/material in support of his case after the close of evidence of the other side. If no such opportunity is given at all in spite of a request therefor, it will be difficult to say that the enquiry is not vitiated. But in respect-of many procedural provisions; it would be possible to apply the theory of substantial compliance or the test of prejudice, as the case may be. The position can be stated in the following words (1) Regulations which are of a substantive nature have to be complied with and in case of such provisions, the theory of substantial compliance would not be available. (2) Even among procedural provisions there may be some provisions of a fundamental nature which have to be complied with and in whose case, the theory of substantial compliance may not be available. (3) In respect of procedural provisions other than of a fundamental nature, the theory of substantial compliance would be available. In such cases, complaint/objection on this score has to be judged on the touchstone of prejudice, as explained later in this judgment. In other words the test is all things taken together whether the. delinquent officer employee had or did not have a fair hearing. We may clarify that which provision falls in which of the aforesaid categories is a matter to be decided in each case having regard to the nature and character of the relevant provision."
"28. The decisions cited above make one thing clear, viz., principles of natural justice cannot be reduced to any hard and fast formulae. As said in Russell v. Duke of Norfolk way back in 1949, these principles cannot be put in a strait-jacket. Their applicability depends upon the context and the facts and circumstances of each case. See Mohinder Singh Gill v. Chief Election Cammr. , The objective is to ensure a fair hearing, a fair deal, to the person whose-rights are going to be affected. (See A.K. Roy v. Union of India and Swadeshi Cotton Mills v. Union of India . As pointed out by this Court in A.K. Kraipak v. Union of India , the dividing line between quasi-judicial function and administrative function (affecting the rights of a party) has become quite thin and almost indistinguishable a fact also emphasised by House of Lords in Council of Civil Service Unions v. Minister far the Chief Civil Service where the principles of natural justice and a fair hearing were treated as synonymous. Whichever the case it is from the standpoint of fair hearing applying the test of prejudice as it may be called that any and every complaint of violation of the rule of audi alterant partem should be examined. Indeed, there may be situations where observance of the requirement of prior notice/hearing may defeat the very proceeding- which may result in gravel prejudice to public interest. It is for this reason that the rule of post-decisional hearing as a sufficient compliance with natural justice was evolved in some of the cases, e.g. Liberty Oil Mills v. Union of India . There may also be cases where the public interest or the interests of the security of State or other similar considerations may make it inadvisable to observe the rule of audi alterant partem altogether (as in the case of situations contemplated by Clauses (b) and (C)of the proviso to Article 311(2)) or to disclose the material on which a particular action is being taken. There may indeed be any number of varying situations which it is not possible for anyone to foresee. In our respectful opinion, the principles emerging from the decided cases can be stated in the following terms in relation to the disciplinary orders and enquiries a distinction ought to be made between violation of the principle of natural justice and audi alterant partem as such and violation of a facet of the said principle. In other words, distinction is between "no notice", "no hearing" and "no adequate hearing" or to put it in different words "no opportunity" and "no adequate opportunity". To illustrate : take a case where the person is dismissed from service without hearing him altogether (as, is Ridge v. Baldwin). It would be a case falling under the first category and the order of dismissal would be invalid or void, if one chooses to use that expression (Calvin v. Carr). But where the person is dismissed from service say, without supplying him a copy of the Enquiry Officer's report {Managing Director, ECIL v. B. Karunakar) 1993(3) SLJ 193 (SC) : 1994 Lab IC 762 or without affording him a due opportunity of cross-examining a witness (K.L. Tripathi 1983 Lab IC 1960) it would be a case falling in the latter category-violation of a facet of the said rule of natural justice in which case the validity of the order has to be tested on the touchstone of prejudice, i.e. whether, all in all, the person concerned did not or did not have a fair hearing. It would not be correct in the light of the above decisions to say that for any and every violation of a facet of natural justice or of a rule incorporating such facet, the order passed is altogether void and ought to be set aside without further enquiry. In our opinion, the approach and test adopted in B. Karunakar should govern all cases where the complaint is not that there was no hearing (no notice, no opportunity and no hearing) but one of not affording a proper hear (i.e., adequate or a full hearing) or of violation of a procedural rule or requirement governing the enquiry; the complaint should be examined on the touchstone of prejudice as aforesaid.
66. Mr. Mukherjee submitted that in judicial review there is no scope of scanning any evidence and this is submitted by Mr. Mukherjee in the context of argument advanced by Mr. Bhunia to the extent that Neelam Devi signed the statement. In the body of the statement it was written in Bengali that had the petitioner been given any opportunity to cross-examine Neelam Devi that would have revealed the truth.
67. Mr. Mukherjee relied on a decision reported in 93 CWN 924. In this case the Head Master of a school received salaries from the School and at the same time accepted the job of extra-departmental postmaster at his native village and remained absent from his School on the false pretext of illness for a prolonged period. In such circumstances the Division Bench observed that the School Authority proceeded reasonably that he has voluntarily left his service and as he was not in service, no departmental proceeding is necessary. Mr. Mukherjee relied on the said decision and submitted that this Court has wide discretionary power.
68. Mr. Mukherejee summarily submitted in the following manner:
When the petitioner was asked not to see (use ?) the Library for a period of six months he challenged the same and the writ petition was dismissed. It is, therefore, clear that the petitioner cannot challenge that part of the order and the petitioner didn't prefer any appeal and therefore, the question of double jeopardy goes.
The proportionality of the punishment which the petitioner has challenged cannot be considered by this Court inasmuch as the Court can only interfere when the punishment is shockingly disproportionate.
69. Mr. Mukherjee then submitted that the allegations of the petitioner that he has not given proper hearing or copy of the documents or enquiry report are baseless inasmuch as the petitioner in writing has admitted hits guilt and non-supply of enquiry report doesn't prejudice the petitioner in any way.
70. The learned Counsel submitted that the petition should be dismissed in limine with costs.
DECISION
71. Heard the learned Counsel for the parties, considered their respective submissions and also considered the pleadings. It is settled proposition of law that in judicial review the scope is limited. Here, it is not disputed that the petitioner committed the offence. It is also not disputed that for that reason the petitioner was directed not to use the Library for six months and it was interim measure. It is also a fact that challenging that order the petitioner came to this High Court and the writ petition was dismissed; the petitioner cannot challenge that part of the order of not allowing the petitioner to enter into the library. The petitioner also cannot allege double jeopardy inasmuch as interim measure was adopted by not allowing the petitioner in the Library is not the result of the disciplinary proceeding. The departmental proceeding is one. There also the scope of challenge is limited inasmuch as in a written representation the petitioner admitted the guilt. The evidence is not being scanned in the writ petition. Whether the petitioner carried the book using the shirt or using sweater that is not to be deduced here; overall the petitioner admitted that he took the library book with him without entry and the plea that the petitioner adopted is "by mistake". When the petitioner commits such a serious mistake he must be ready for the consequence. It is not also disputed that evidence and/or witnesses are there supporting the factum of stealing the book. The petitioner first of all committed the offence and thereafter as an afterthought decided to challenge the result and the procedure in this High Court in a writ petition. The petitioner could not expect that proceeding will be drawn up against him.
72. The learned Counsel for the petitioner argued that principle of natural justice has been violated. It is to be seen as to how the principles of natural justice are not being violated and whether it has been violated. When the learned man working in such a high post commits such an offence and admits the same then there is no question of giving personal hearing or giving copy of enquiry report arise. ECIL's case is a clear guideline as to where the enquiry report is to be supplied to the delinquent officer. If the concerned person doesn't suffer any prejudice for non-supply of enquiry report then the question of violation of principle of natural justice doesn't arise. The concept of personal hearing also goes in this case inasmuch as had the petitioner been given any personal hearing what more he could have said beyond the fact which he has given in writing ? Therefore, personal hearing is also a myth in such circumstances.
73. The learned Counsel also submitted the proportionality of punishment. The Hon'ble Apex Court has time and again preserved that if the punishment is shockingly disproportionate then and then only the Court can interfere, otherwise not. Here, the offence is such serious that the punishment cannot be said to be shockingly disproportionate. The offence shocks the conscience and not the penalty.
74. Citations which have been given by the learned Counsel for the petitioner are mostly irrelevant in the context and naturally, those citations are not going to help the petitioner. On the other hand, I respectfully, agree with the submissions advanced by Mr. Mukherjee and disagree with the submissions made by Mr. Bhunia.
75. In the facts and circumstances of the case the writ petition is dismissed.
76. There will be no order as to costs.
77. Urgent xerox certified copy, if applied for, will be given to the parties as expeditiously as possible upon usual undertaking.