Abhijit Roy vs State Of West Bengal And Others

Sabyasachi Bhattacharyya, J

The present writ petition has been preferred against an order of dismissal of the petitioner from service and alleged illegalities in the procedure leading to such dismissal.

A Charge-Sheet was issued on February 26, 2004 against the petitioner on the basis of an allegation that the petitioner had unduly enriched himself by drawing salary of an excess scale by forging the signature on a Government Order dated April 16, 1999.

Learned counsel for the petitioner, by placing reliance on UCO Bank and others Vs. Rajendra Shankar Shukla, reported at (2018) 14 SCC 92, argues that the petitioner was prejudiced in formulating his defence due to the delay of about five years in filing of the Charge-Sheet after the alleged act of forgery. Learned counsel submits that such a prolonged delay went unexplained before all the forums below.

Learned counsel next contends that various principles of natural justice were violated in undertaking the process of enquiry and the affirmation of the same by the Disciplinary Authority (DA) and places reliance on M. P. State Agro Industries Development Corpn. Ltd. and another Vs. Jahan Khan, reported at AIR 2007 SC 3153 in this context.

It is submitted that the petitioner, despite having specifically sought certain relevant documents by his letter dated March 19, 2004, was not supplied with copies of such documents by the respondent-Authorities, in blatant contravention of Rules 10(6)(c) and (7) of the West Bengal (Classification, Control and Appeal) Rules, 1971, as amended, (in short, "the 1971 Rules"). That apart, it is argued that, despite communication of a specific direction of the Enquiry Officer (EO) to serve documents which were annexed collectively as Annexure III to the Charge-Sheet by the Tribunal dated July19, 2005, issued in OA 736 of 2005, such order was not complied with by the Enquiry Officer (EO).

It is next contended that the EO, by an Order dated June 20, 20056, directed issuance of a notice upon the petitioner intimating that the next date was fixed for hearing of the matter ex parte in the absence of the petitioner; however, the notice dated June 20, 2005 only mentioned the next date of hearing and clearly omitted to mention specifically that the said date was fixed for ex parte hearing.

Learned counsel for the petitioner next contends that the findings of the EO, being beyond the scope of the Charge-Sheet itself, were perverse. While the Charge-Sheet alleged only forgery of GO 903 dated April 16, 1999, the EO came to the finding that the petitioner was guilty of forgery of GO 603 dated February 20, 1998 and GO 2394 dated June 30, 2021 as well, thereby depriving the petitioner of the opportunity to controvert such allegations.

It is further argued that although the EO held the petitioner to be the Head of Office at the relevant juncture and, therefore, could forge GO 903 dated April 16, 1999, such finding was patently erroneous, as one Bijendu Bhattacharjee, the predecessor-in-office of the petitioner, and not the petitioner himself, acted on the said GO 903 by issuing an Office Order dated April 29, 1999, enhancing the pay scale of the petitioner.

Hence, the petitioner was neither the Managing Director nor the Head of Office at the relevant juncture of alleged forgery and could not, in any manner, influence such decision.

Learned counsel for the petitioner next submits that the EO proceeded on the premise of the deposition of PW4, who had allegedly worked under D. K. Bagchi, whose signature was allegedly forged, although the signature was not proved in evidence properly (since PW4 was incompetent in law to prove the veracity of D.K. Bagchi's signature) nor was the signature compared with any other admitted signature of D. K. Bagchi. Thus, the entire finding of forgery, which was the premise of the petitioner's dismissal, was baseless and without any substance.

Learned counsel next argues that the EO was influenced by extraneous circumstances besides the allegations contained in the Charge-Sheet and highlights the findings of the EO at internal page 8 of the Report. Thus, it is submitted, the EO travelled beyond the scope of the enquiry, which vitiated the order of the EO incriminating the petitioner, as affirmed by the DA later.

The petitioner further argues that no opportunity was given to the petitioner to file his representation against the EO's Report dated August 10, 2005, which was accepted by the DA as sacrosanct. A copy of the said Report was served on the petitioner only with the second show-cause notice, when the petitioner had already been found guilty of the alleged offence. The scope of answering to the second show-cause notice was limited to the penalty to be awarded against the petitioner, only after a prior conclusive finding of the petitioner's guilt. As such, the vital opportunity of responding to the Report of the EO was denied to the petitioner by the DA, which was de hors the law. In support of such submission, learned counsel for the petitioner places reliance on Managing Director, ECIL, Hyderabad and others Vs. B. Karunakar and others , reported at AIR 1994 SC 1074.

It is also argued by the petitioner that the DA failed to apply its mind independently to the facts of the case and the materials-on-record, while relying on the advice of the Public Service Commission (PSC) as sacrosanct, whereas the 1971 Rules mandate the DA to consider the correctness of such advice. No such independent adjudication was undertaken by the DA in the petitioner's case.

Although not disclosed in the petitioner's written notes of arguments, learned counsel for the petitioner had initially argued during oral submissions that the impugned action against the petitioner was the result of a back-lash by one Dr. Sukhabilash Burma. It is alleged that the petitioner had, on January 30, 2002, generated a note-sheet, inter alia disclosing the process as to how funds were being routed from the Central Government for distribution, also criticizing the decision and comments of Dr. Sukhabilash Burma as the Principal Secretary of BCW Department. The petitioner had, allegedly, also addressed a letter to the Minister-in-Charge of the West Bengal Scheduled Castes and Scheduled Tribes Development and Finance Corporation, disclosing the petitioner's reservations about the sluggish attitude of the BCW Department in releasing funds. Allegedly due to such disagreement with Dr. Burma, the Principal Secretary of the Department, the petitioner was put on compulsory waiting upon being released from the petitioner's post of Managing Director at the Corporation. As a result, the petitioner handed over charge and jointed in the P & AR Department, Government of West Bengal as an officer on compulsory waiting.

The petitioner alleges that as a fall-out of such previous disagreement, Dr. Sukhabilash Burma, the then Principal Secretary of the P & AR Department, issued a suo motu letter on May 27, 2002, inter alia complaining about the alleged forgery forming the charge against the petitioner. As per the petitioner's contention, such letter, annexed to the writ petition, discloses the direct link and mala fide of the said Dr. Sukhabilash Burma against the petitioner.

Learned counsel appearing for the respondent-Authorities, by placing reliance on Anant R. Kulkarni Vs. Y. P. Education Society and others, reported at (2013) 6 SCC 515, submits that the delay, if any, in filing the Charge-Sheet from the date of forgery was fully justified. The offence was detected and reported only in the year 2002 and the Charge-Sheet was issued on February 26, 2004, which was a reasonably short period considering the gravity of the charge and its direct bearing on the time taken for preliminary enquiry.

By relying on Chairman, Board of Mining Examination and Chief Inspector of Mines and another Vs. Ramjee, reported at (1977) 2 SCC 256, learned counsel for the respondents submits that natural justice is not an unruly horse or a lurking landmine. By further relying on Umrao Singh Chowdhary Vs. State of M.P. [(1994) 4 SCC 328] and Union of India Vs. Bishambar Dogra, [(2009) 13 SCC 102], learned counsel for the respondents advances the proposition that there was no violation of natural justice, since notice of hearing was served but the petitioner did not participate deliberately in the proceeding, despite sufficient opportunities being given to the petitioner for doing so. Thus, it does not lie in the mouth of the petitioner that the term "ex parte" was not specifically used in the notice given to the petitioner regarding the next date of hearing. By placing relevant orders from the materials-on-record, learned counsel argues that opportunity of hearing was given to the petitioner on several occasions but the petitioner deliberately chose to avoid appearing before the EO.

In this context, learned counsel relies on M.D. ECL Vs. Karnakar, reported at (1993) 4 SCC 727, which is also relied by the petitioner in a different context.

That apart, learned counsel for the respondents submits that there was a bar to the exercise of jurisdiction by the Tribunal as per Section 20 of the Administrative Tribunals Act, 1985 (for short, "the 1985 Act"), in view of the petitioner having failed to exhaust the remedy of appeal before the Governor of the State as per the provisions of the 1971 Rules. Hence, the appeal preferred before the Tribunal, in which he impugned order was passed, was itself not maintainable and the decision of the DA attained finality. Learned counsel relies on S.S. Rathore Vs. Union of India, reported at AIR 1990 SC 10 (also reported at (1989) 4 SCC 582), in support of the proposition that the purport of Section 20 of the 1985 Act is to give effect to the Disciplinary Rules (DR) and the exhaustion of remedies available thereunder is a condition precedent to maintain claims under the 1985 Act.

Learned counsel for the respondents next argues that the scope of the present judicial review under Article 226 of the Constitution of India is limited. In support of such proposition, learned counsel cites:-

(i) State of Karnataka Vs. N. Nagraj, reported at (2020) 3 SCC 423;

(ii) Deputy General Manager Vs. Ajai Kumar Sreevastava, unreported judgment in SLP 32067 of 2018 (Three-J) and

(iii) Pravin Kumar Vs. Union of India and others, reported at (2020) 9 SCC 471 (Three-J).

In reply, learned counsel for the petitioner, apart from reiterating his initial submissions, contends that the DA proceeded mechanically in passing the Dismissal Order dated September 25, 2007 and there was no "determination" under Rule 10(14) of the 1971 Rules. The contents of the petitioner's representation were not adverted to at all, nor was there any application of judicial mind, which vitiated the impugned order of the DA. Learned counsel cites G. VallikumariVs. Andhra Education Society and others [(2010) 2 SCC 497] and Roop Singh Negi Vs. Punjab National Bank and others [(2009) 2 SCC 570] in such regard.

In conclusion, learned counsel for the petitioner reiterates that the order of the Tribunal, impugned in the present writ petition, was perverse, since the Tribunal proceeded on the erroneous premise that the petitioner did not appear before the EO after December 13, 2004, by overlooking the specific recording of the EO in his Order dated June 6, 2005, which proves that the petitioner had appeared on such date as well.

Taking up the question of maintainability first, since it strikes at the root of the matter, the language of Section 20 of the 1985 Act is as follows:-

"Applications not to be admitted unless other remedies exhausted.-(1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.

(2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances,-

(a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance;

(b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.

(3) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial."

Read in conjunction with S.S. Rathore (supra), it is provided in Rule 16 of the 1971 Rules that an appeal lies in cases as the present one to the Governor. The exception provided in sub-section (3) of Section 20 of the 1985 Act does not apply, since the specific provision of the 1971 Rules is not for submission of a memorial, but preference of an appeal before the Governor.

Rule 17 of the 1971 Rules, on the other hand, stipulates that the limitation period for preferring such appeal is of three months from receipt of the copy of the order.

Although the legal bar stipulated in Section 20 of the 1985 Act has been held by the Supreme Court to be a condition precedent to maintain claims before the Administrative Tribunal, the maintainability issue does not appear to have been specifically taken before the Tribunal, as reflected in the impugned order of the Tribunal.

However, such question of maintainability, as in the present case, is a pure question of law since the legal bar arises by operation of Section 20 of the 1985 Act and there is nothing on record to show that an appeal had been preferred to the Governor at all.

However, parallely with the above factors, it should be considered that the expression "admit an application", as used in sub-section (1) of Section 20 of the 1985 Act, is preceded by the qualifying term, "ordinarily". Thus, by necessary implication, in exceptional cases, the Tribunal can admit such an application even without being satisfied that all the remedies under the 1971 Rules had been exhausted by the petitioner.

As such, we have to look into the merits of the case to find out whether any such exceptional case has been made out by the petitioner in the instant case.

The decisions on natural justice cited by both sides, although binding on this Court, are of a general nature which lay out the contours of exercise of judicial review in cases of violation of natural justice. The principle of Audi Alteram Partem is implicit in natural justice and could be said to have been violated in the event the writ petitioner could establish that adequate opportunity of hearing was not given to the petitioner. Another question which falls for consideration in the present case is, whether the alleged non-supply of all copies of documents relevant to the matter and annexed to the Charge-Sheet would vitiate the proceedings as a whole.

In the instant case, the petitioner has argued that there was an unexplained delay of 5 years between the alleged act of forgery of the signature of one D.K. Bagchi on April 16, 1989and the issuance of Charge-Sheet on February 26, 2004.

However, the question was not raised specifically, or substantiated, by the petitioner before the EO. Rather, the respondents have argued that the Charge-Sheet was the culmination of a complaint lodged upon detection of forgery in the year 2002. As such, the issuance of charge-sheet on February 26, 2004, that is, within about two years thereafter, was reasonably prompt, keeping in view the gravity of the charge and the time taken for the preliminary enquiry into the matter. Hence, the respondents are justified in arguing that no further explanation of such alleged "delay" was required in the present case. The decision of UCO Bank and others Vs. Rajendra Shankar Shukla (supra) does not help the petitioner much, since the petitioner failed to establish that the time-lapse of two years between the complaint and the issuance of the Charge-Sheet was prejudicial in any manner to the petitioner in formulating his defence.

Coming to the allegation of non-compliance of the direction dated July 19, 2005 issued in OA 736 of 2005 by the Tribunal, on the part of the EO by failing to supply the documents which comprised Annexure III of the Charge-Sheet, such point was never agitated by the petitioner before the EO himself at the time of hearing. The same, being a question of fact, cannot be taken for the first time before this Court.

The same ratio applies in respect of alleged non-supply of the documents sought by the petitioner by his letter dated March 19, 2004 pursuant to the direction dated July 19, 2005 of the Tribunal. Having not been taken specifically before the EO, the petitioner lost his opportunity to agitate such factual irregularity at this belated juncture.

As far as the non-mention in the notice dated June 20, 2005, in specific terms, that the next date was fixed for "ex parte" hearing is concerned, it is not a serious error going to the root of the issue at all. Mere non-mention of the expression "ex parte" is not fatal and, in any event, rendered academic in view of no such compulsion being there on the EO as per the relevant law.

That apart, such an allegation does not lie in the mouth of the petitioner, since the petitioner deliberately avoided appearing before the EO on repeated occasions and chose to remain absent on the several occasions when the matter was fixed for hearing. Having himself abstained repeatedly over a prolonged period of time, the petitioner is precluded from taking such hyper-technical point at this juncture for the first time.

The next allegation of the petitioner, regarding the EO findings being perverse, does not hold water as well. Although the EO had discussed forgery of GO 603 dated February 28, 1998 and GO 2394 dated June 30, 2021, which had come up in the course of the inquiry, mere non-mention of such offences in the Charge-Sheet could not have conclusively debarred the EO from deciding on such scores as well. Since ample and adequate opportunities were given to the petitioner to represent his case before the EO and the DA, there is no occasion to hold that such findings having merely been omitted to be mentioned specifically in the Charge-Sheet vitiated the entire proceeding; more so, as the EO'sdetailed order considered all the relevant materials on recordand was sufficiently backed by reasons.

That apart, the allegation of forgery in respect of GO 903 dated April 16, 1999, which was specifically mentioned in the Charge-Sheet, was also one of the grounds on which the petitioner's service was terminated.

Thus, the question of the EO going entirely beyond the Charge-Sheet does not arise.

As regards the argument that the petitioner, not being the Head of Office, could not have forged the signature of D. K. Bagchi on GO 903 dated April 16, 1999 since the petitioner's predecessor Bijendu had acted on the said GO by issuing an Office Order dated April 29, 1999, enhancing the pay scale of the petitioner, is neither here nor there.

Although the Office Order dated April 29, 1999, enhanced the petitioner's pay scale, the allegation against the petitioner was specifically the forgery of GO 903 dated April 16, 1999 which was the basis of the subsequent Office Order dated April 29, 1999. Thus, such a vague argument cannot mitigate the petitioner's offence of forgery, since the document containing the forged signature of D. K. Bagchi, being GO no.903 dated April 16, 1999 was held on facts by both the authorities below to be the machination of the petitioner.

Rule 10 of the 1971 Rules, in its several sub-rules, clearly stipulates the various stages of the proceeding to be undertaken for imposing penalties. Rule 10(3) stipulates that the DA shall deliver or cause to be delivered to the Government servant (here, the petitioner), the copy of the articles of charge and the statement of imputations of misconduct or misbehaviour prepared under Clause (ii) of sub-rule (2). Rule 10(9) of the 1971 Rules clearly provides that, after completion of the enquiry, a report shall be prepared by the EO. There is no provision in the Rules, however, requiring the service of the Report prepared by the EO before consideration of the same by the D.A.

Sub-rule (12) of Rule 10, on the other hand, provides that if the DA, having regard to its finding on the charges, is of opinion that any of the penalties specified in some of the clauses stipulated in Rule 8 should be imposed or, where the Commission recommends in any of the cases referred it under sub-rule (11) one or other of the penalties specified in some other clauses of Rule 8 and the DA agrees with the views, a copy of the report of the enquiring authority and a statement of its finding shall be furnished to the Government servant concerned, along with a notice stating the punishment proposed and the grounds therefor. The limited scope of filing a representation by the officer complained against is stipulated in sub-rule (12), clause (b) of Rule 10, which is restricted to the punishment proposed on the basis of the evidence during the enquiry.

As such, no further right of hearing before the DA prior to such conclusive finding, regarding the offence having been committed by the Officer-in-question, by the DA is not envisaged in the Rules at all. There is no scope or provision under the 1971 Rules to furnish a copy of the EO's report to the accused officer prior to the DA coming to the conclusive finding as to his guilt. Sub-rule (12) of Rule 10 clearly provides, under Clause (a) thereof, that such a copy of the report of the Enquiring Authority shall only be served on the officer after such conclusive findings on guilt. Clause (b) of sub-rule (12), on the other hand, specifically restricts the scope of representation of the accused officer only to the punishment proposed and not at any point of time prior thereto.

Hence, the contention of the petitioner as to non-service of a copy of the EO's report on the petitioner prior to the DA finding as to the petitioner's guilt, is de hors the law.

That apart, in the present case, the petitioner has not come with clean hands before this Court, since it is patent from the materials on record that the petitioner chose to abstain from the hearing before the EO on numerous successive occasions. Mere presence of the petitioner on a single isolated instance of June 6, 2005 cannot alleviate the mala fide conduct of the petitioner, who chose to absent himself on repeated occasions in hearings before the EO.

The signature of D.K. Bagchi was compared by the EO himself, which finding was affirmed by the DA as well, on the advice of the PSC, upon verifying the signatures-in-question. The deposition of PW 4, who had worked under the said D.K. Bagchi, the alleged signatory in the incriminating Government Order,was enough to have circumstantial relevance to the allegation of forgery. That apart, even a visual comparison by this Court makes clear the patent discrepancy between the allegedly forged signature at page 29 of the Affidavit-in-reply in the copy of GO No. 903 supplied by the petitioner and the admitted signatures of D.K. Bagchi, appearing at pages 15 and 26 of the bunch of papers handed over by the petitioner which, inter se, were exactly similar. It is not the law that, in all cases, administrative and/or quasi-judicial authorities have to appoint experts to verify to ascertain the veracity of signatures. As such, the omission to appoint an expert in the present case does not vitiate the dismissal order against the petitioner in any manner whatsoever.

Rule 9 of the 1971 Rules clearly leaves scope for the DA to exercise its independent discretion to proceed with the enquiry against the recalcitrant officer even if the latter is not convicted in a criminal trial.

The other factor which has to be kept in view in the above context is that the yardstick of deciding criminal cases, that is, proof beyond reasonable doubt, is entirely different from a departmental enquiry, which, somewhat akin to a civil proceeding, can be based on preponderance of probabilities. The tests being different, it cannot be said that the pendency of the criminal case at the relevant juncture and/or even subsequent acquittal of the petitioner could prevent or vitiate the findings of the DA regarding the forgery committed by the petitioner and/or the penalty granted therefor.

The penalty of dismissal was commensurate with the offence committed and cannot be faulted in any manner in the present case.

The EO looked into the materials-on-record extensively and returned the finding of guilt, which was affirmed by the DA on the advice of the PSC. Sub-rules (11), (12) and (13) of Rule 10 of the 1971 Rules clearly mandate the DA to take into consideration the advice of the PSC before passing its orders and, only to form an opinion as to whether any of the penalties specified in Rule 8 of the 1971 Rules is/are to be imposed. In the case of disagreement with the advice of the PSC or the Enquiring Authority, the brief reasons for such disagreement with the findings should be given under the provisions of Rule 10(12). The expression "brief reasons" clearly rules out detailed adjudication, as required by the standards of a regular court of law, in meting out punishment against the delinquent officer. If all administrative/quasi-judicial orders were to be accompanied by detailed reasons, the DA would be overburdened, thereby bringing administrative work to a stand-still. The prefix "brief" preceding "reasons for disagreement" is an unerring indicator of the intended brevity of the discussions and the limited scope of exercise of discretion of the DA.

Thus, the DA could not be faulted in any manner in affirming the finding of guilt on the basis of the EO's elaborate Report, backed by sufficient reasons and considerations of the materials-on-record and/or the advice of the PSC, which were taken into consideration in accordance with Rule 10, sub-rules (11), (12) and (13) of the 1971 Rules.

Lastly, as regards the petitioner's allegation as to mala fides on the part of Dr. Sukhabilash Burma, whose letter formed the basis of the charge of forgery against the petitioner, we find the alleged nexus far too remote. Even assuming that there was a previous disagreement between the said Dr. Burma and the petitioner, the petitioner has failed to plead or prove any direct influence or control having been exercised by Dr. Burma in the entire process of inquiry against the petitioner. Even if the initial complaint was made by Dr. Burma, the petitioner was not penalized overnight, solely on such allegation. Rather, as discussed above, a detailed process of issuing charge-sheet, giving ample opportunity of hearing to the petitioner and all other formalities, in consonance with law and the tenets of Natural Justice, was adhered to by the authorities and the ultimate decision taken against the petitioner was fully in accordance with law. Hence, such flimsy 'connection', if at all, between Dr. Sukhabilash Burma and the petitioner in view of some past disagreement cannot ipso facto taint the impugned action against the petitioner in any manner whatsoever.

As such, the petitioner has failed to establish any ground whatsoever, let alone making out an exceptional case as required under Section 20 of the 1985 Act, for interference by this Court under Article 226 of the Constitution of India with the decision of the respondent-Authorities to dismiss the petitioner from service and/or awarding penalty, as done against the petitioner.

In such view of the matter, W.P.S.T. No.360 of 2011 is dismissed on contest without, however, any order as to costs.

There will be no order as to costs.

Urgent certified server copies shall be supplied to the applying parties, subject to due compliance with the necessary requisites.