Govindarajalu Krishnaraj vs Union Of India & Ors.

Rajasekhar Mantha, J.

The writ petitioner was employed as a Field Officer with the Textiles Committee, a body Corporate constituted under the Textiles Committee Act,

1963. He was posted at the Kolkata Regional Office in the year 1994. By a Memorandum dated 8th January, 1997, a Charge Sheet was issued to the

writ petitioner enumerating five several charges of misconduct under Regulations 4(i), 5(vi), 5(xxii) and 5(12) of the Textiles Committee

Employees’ Contract Regulations 1986. The writ petitioner replied to the said charge sheet.

An Inquiry was held and a report was submitted on 24th April, 1998. The said report was considered by the Disciplinary Authority being the

Secretary Ministry of Textiles. Accepting the writ petitioner’s contentions that he was wrongly denied access to certain documents, a fresh

Inquiry was ordered. Liberty was granted to writ petitioner to access six documents and copies were obtained by him. The writ petitioner however did

not object to the same Enquiry Officer continuing to act as such.

The Inquiry was taken up again by the Enquiry Officer. The petitioner did not submit his list of witnesses, despite being requested to do so. The

petitioner was also given an opportunity to produce the original money receipt for Rs.12,500/- obtained from one D.K.Kamble Marketing Research

Officer in connection with the first charge. The defense of the petitioner being return to the said D.K.Kamble sums of money misappropriated by him.

He could not produce the said receipt. The Inquiry was adjourned repeatedly at the request of the petitioner in January and February, 1999.

The writ petitioner failed to appear before the Enquiry Officer despite receiving three notices. In the notice dated 10th March, 1999, the writ

petitioner was asked to attend the Inquiry that was fixed peremptorily, on 30th March 1999. It was stipulated that if the writ petitioner failed to appear

on the 30th of March, the Inquiry would held ex-parte.

On the 30th of March, 1999 the writ petitioner in fact did not appear and the Inquiry was taken up ex-parte. All documents requested by the writ

petitioner vide his letter dated 5th May, 1997, were taken on record. He however wrote a confidential letter to the Enquiry Officer that he had lost

faith in him and hence refused to attend the Inquiry.

The said Inquiry was proceeded with and the Enquiry Officer submitted his report on 12th May 1999. The writ petitioner did not produce any

witnesses. He also did not cross-examine the four witnesses of the management. Based on the evidence led by the management, the Enquiry Officer

found the writ petitioner guilty of the charges. This was a second Inquiry report. The Enquiry Officer duly considered and dealt with the contentions of

the writ petitioner and once again found him guilty of the charges levelled against him.

It is relevant to note that the writ petitioner had earlier on 11th February, 1997 objected to one P.R.Narayanan, Chief Accounts Officer (Vigilance)

and one P.R.Khedkar, Assistant Inspecting Officer (Vigilance) who were appointed as Enquiry Officer and Presenting Officer, respectively. The

Management replaced the said persons and one P.K.Mondal and one Biswarup Das were appointed as Inquiry and Presenting Officers vide order

dated 12th June, 1997.

By an order dated 5th February, 2002, a punishment of ‘dismissal from service’, was imposed on the writ petitioner by the Disciplinary

Authority. Before the Disciplinary Authority the writ petitioner contended as follows:-

a) That the Enquiry Officer did not consider the preliminary objection raised by him.

b) The Presenting Officer failed to produce documents on the 11th August, 1997.

c) That the Presenting Officer also dropped a listed witness Sri J.Mitra;

d) That he was not allowed to cross-examine Sri D.K.Roy, prosecution witness;

e) That the Inquiry was vitiated by delay and the defence witness requested by him namely the Secretary and Assistant Secretary of the Textiles

Committee had not been summoned by the Enquiry Officer.

The Disciplinary Authority had addressed each of these issues in his order. As regards non-production of prosecution witnesses P.K.Kainth,

R.K.Dasgupta and Vinay Raj, the Disciplinary Authority found that they in fact did not appear on the date of hearing. The Inquiry had to be

adjourned. On the next date of Inquiry the said P.W.s. once again failed to appear. The Presenting Officer once again sought time to produce such

witnesses. The writ petitioner objected to such adjournment, and hence the Inquiry was proceeded without the evidence of those P.W.s. The writ

petitioner had not asked them to be produced as defense witness. The petitioner could not have been prejudiced. No specific prejudice has been

indicated by the petitioner.

On the question of the dropping of witnesses by the Presenting Officer, the Disciplinary Authority found that it was the management’s

prerogative to produce witnesses as per their choice.

As regards non-production of documents, the Disciplinary Authority found that the said objection baseless as all documents required by the writ

petitioner and ordered to be made available to the writ petitioner by the earlier Disciplinary Authority were in fact taken on record by the Enquiry

Officer. As regards D.K.Roy the P.W. it appears from the records that the petitioner himself did not appear in the Inquiry on the date for

crossexamination of D.K.Roy. The writ petitioner had produced before the Disciplinary Authority a money receipt purportedly issued by one

D.K.Kamble his superior showing return of money by the petitioner. The said document was not produced before the Enquiry Officer. It was

produced for the first time before the Disciplinary Authority. Without rejecting the same the Disciplinary Authority sent the document for a Forensic

Examination to the Government Examiner of Questioned Document (GEQD) at Hyderabad. The proceedings before the Disciplinary Authority were

adjourned awaiting such report, to the knowledge and concurrence of the writ petitioner.

Upon receipt of report from the GEQD, the Disciplinary Authority found that the handwriting on the purported Money receipt was that of the

petitioner himself and the document itself was very suspect. The Disciplinary Authority even otherwise found that the story of refund of money and

payment to D.K.Kamble by the petitioner was neither established nor believable. The Disciplinary Authority thus imposed a penalty of dismissal from

service on the writ petitioner.

In the meantime the petitioner filed W.P.No.237(W) of 2002 before this Court, challenging the order of suspension and the Departmental

Proceeding as a whole. The said writ petition was disposed of by a Co-ordinate Bench of this Court by an order dated 25.02.2002. By the said order

the respondents were directed to complete the disciplinary proceedings within a period of six months.

The writ petitioner thereafter filed a 2nd Writ Petition before this Court being W.P.No.4158 of 2002, challenging the final order dated 5th February

2002, passed by the Disciplinary Authority. The said writ petition was disposed of on the 31st of July 2002, directing the petitioner to exhaust the

remedy of Appeal under the Service Regulations concerned. It was clarified that since the Appellate Authority would be the same person as the

Disciplinary Authority, the petitioner’s appeal must be forwarded to the next higher authority.

The writ petitioner preferred an appeal on the 23rd of August 2002, against the order of the dismissal dated 5th February 2002. The said appeal

was placed before the highest authority in the Management i.e. the Textile Committee. The writ petitioner was given a personal hearing on the 9th

October, 2002. The said appeal was rejected and disposed of by a reasoned order dated 24th October, 2002.

The writ petitioner challenged the entire disciplinary proceeding including order dated 24th October 2002 passed by the Appellate Authority in

W.P.No.8700(W) of 2003. The said writ petition was dismissed on merits by a detailed judgment and order dated 21st December, 2005, passed by

another Coordinate Bench of this Court.

However, in an appeal against the said order of the Single Judge dated 21st December, 2005 being FMA 748 of 2011, a Division Bench of this

Court found that the Appellate Authority’s order was without jurisdiction. The Division Bench found that the Disciplinary Authority being the

Textiles Commissioner could not have participated in the proceedings before the Appellate Authority being the Textiles Committee, in which he was

an ExOfficio Vice Chairman. Hence the order of the Appellate Authority dated 24th October, 2002 was set aside, directing the Textiles Committee to

look into the matter afresh.

The Textiles Committee in compliance of the said order considered the matter afresh and in its order dated 16th January, 2013 affirmed the order

of the Disciplinary Authority and confirmed the punishment of dismissal of the writ petitioner from service.

On the 15th of April, 2013 an application for review was filed by the writ petitioner. The writ petitioner was heard in person both before the

Second Appellate Authority as also the Reviewing Authority. The Reviewing Authority rejected the writ petitioner’s application in its meeting

dated 8th May, 2013. Hence the instant writ petition.

In course of hearing, the arguments of the writ petitioner were summarized by court and the Ld. Advocate for the petitioner confirmed that those

were the only arguments he wished to advance before this Court. The writ petitioner was also personally present at the final hearing of the matter.

The judgment and order dated 21st December 2005 passed by a Coordinate bench in W.P.No.8700 (W) of 2003 was not disturbed by the Division

Bench in its order dated 21st December 2005 in F.M.A.No.748 of 2011 was upheld to extent of the order of the Disciplinary Authority. It is only the

order of the Appellate Authority that was set aside.

Learned Counsel appearing for the writ petitioner restricted his submissions to the following arguments:-

a) The Inquiry was vitiated by reason of the Enquiry Officer being the same person who conducted the preliminary Inquiry before issuance of charge

sheet.

b) The principal charge was non-return of a tour advance of a cancelled tour. The said tour advance has been recovered from the salary of the writ

petitioner which itself was the penalty. Imposing of further penalty of dismissal from service for the self same conduct therefore amounted to double

jeopardy.

c) The past conduct of the writ petitioner not having been mentioned in the charge sheet. He was denied opportunity of answering the same before

the punishment was actually imposed by the Disciplinary Authority. There was thus violation of natural justice.

d) Two officials of the Organisation being Mr.Y.P.Singh, Secretary and Mrs.M.M.Bhagat, Assistant Secretary of the Textile Committee were not

summoned by the Enquiry Officer and hence the writ petitioner was prejudiced.

e) Even if the charges in question are held to be proved the punishment imposed on the petitioner was grossly disproportionate and that, the Appellate

Authority relied on extraneous materials.

In support of his argument, the petitioner relied upon the following judgments State of Mysore Vs. Manche Gowda, AIR 1964 SC 506. UPRTC

Vs. Mahesh Kumar Mishra reported in AIR 2000 SC 1151, at Paras 8, 9 and 12 ; VP Gupta Vs. Delton Cable reported in AIR 1984 SC 914 at Para

13, Indu Bhushan Diwedi Vs. State of Jharkhand reported in AIR 2010 SC 2472; Ranjit Thakur Vs. UOI (1987) 4 SCC 611; Union Territory of Dadar

& Nagar Haveli Vs. Gulabhia M Lad reported in (2010) 5 SCC 775; Balbir Chand Vs. Food Corporation reported in (1977) 3 SCC 371.

The arguments and replies of the parties are discussed hereunder:-

It is now well settled and trite law that a Writ Court generally does not sit in appeal over or reappreciate a decision of a quasi-judicial authority. It

is the decision making process that is tested. The decision of the Hon’ble Supreme Court in SBI Vs. Ramesh Dinakar Punde reported in (2006) 7

SCC 212 may be referred to in this regard. Paragraphs 6, 9, 12 and 13 are set out herein below:-

“6. Before we proceed further, we may observe at this stage that it is unfortunate that the High Court has acted as an Appellate Authority despite

the consistent view taken by this Court that the High Court and the Tribunal while exercising the judicial review do not act as an Appellate Authority:

“Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or

violation of principles of natural justice. Judicial review is not akin to adjudication on merit by reappreciating the evidence as an Appellate Authority.â€​

It is impermissible for the High Court to reappreciate the evidence which had been considered by the inquiry officer, a disciplinary authority and the

Appellate Authority. The finding of the High Court, on facts, runs to the teeth of the evidence on record.

From the facts collected and the report submitted by the inquiry officer,which has been accepted by the disciplinary authority and the Appellate

Authority, active connivance of the respondent is eloquent enough to connect the respondent with the issue of TDRs and overdrafts in favour of

Bidaye.

We are, therefore, clearly of the view that the High Court has erred bothin law and on facts in interfering with the findings of the inquiry officer,

the disciplinary authority and the Appellate Authority by acting as a court of appeal and reappreciating the evidence.â€​

The above are the principles to be followed in a challenge to a Disciplinary Inquiry.

If the Court finds that the decision making process in accordance with law, the Court may enter upon an exercise to ascertain if there iw some

evidence to support the conclusion arrived at in the inquiry. A quasi judicial proceeding follows the principle of preponderance of probabilities. It may

also be seen as to whether any reasonable man can come to the conclusion that the Disciplinary Authority has arrived at, or that the findings of the

Disciplinary Authority are wholly perverse. The last test to be applied by Writ Court is whether the punishment is disproportionate or shocks the

conscience of a reasonable man and also a Court of law.

Applying the aforesaid tests, it transpires that the findings of the Enquiry Officer were based on the evidence on record oral as well as

documentary. The pre Inquiry report was not relied upon by the Enquiry Officer. The writ petitioner did not object to Mr. P.K.Mandal acting as

Inquiry Officer during the first Inquiry or at the beginning of the second Inquiry.

The writ petitioner did not cross-examine any of the witnesses of the management. The crucial witness D.K.Kamble was also not cross-examined

by the writ petitioner. For the aforesaid reasons merely because the Enquiry Officer was the same person who conducted the preliminary Inquiry

would not therefore vitiate the enquiry. The writ petitioner has not been able to demonstrate any prejudice. Even otherwise, findings of an Enquiry

Officer as recorded in the Inquiry report are merely tentative and subject to acceptance by the Disciplinary Authority. The first argument of the

petitioner must therefore pail.

As for the second argument, I find that the management had indeed recovered the unreturned tour advance, from the salary and emoluments

payable to the writ petitioner. That by itself however will not absolve the petitioner or purge the misconduct in non return of the same in the first place.

The misconduct in the instant case is violation of rules and an attempt to defalcate and convert sums of money belonging to Employer, by non return

thereof. The argument of the petitioner may also be selfdefeating as it amounts to an admission of misdemeanour. The Inquiry and punishment for

such misconduct and the penalty of dismissal does not therefore amount to double jeopardy.

The other charge of failure to mortgage in favour of the Textile Committee the residential flat unit purchased with the housing loan obtained by the

petitioner from the employer, is equally serious. Learned Counsel for the writ petitioner argued that he was in the process of mortgaging the flat. The

management after finding no such mortgage, even after several reminders was constrained to invoke the personal guarantee given by a surety,

another employee of the bank.

The writ petitioner argued that the management’s loan having been satisfied, not mortgaging the flat therefore cannot amount to misconduct.

The argument is preposterous. The misconduct is non- compliance with undertakings given as a pre-condition for the housing loan advance. The

recovery of loan amount is not relevant to the charge. The failure on the part of the petitioner to mortgage the flat unit despite several reminders been

proved in the Inquiry. Such failure amounted to refusal. Such failure and or refusal by itself is misconduct. Even in respect of this charge and

punishment therefor cannot amount to double jeopardy. The second argument of the writ petitioner is also devoid of merit.

The writ petitioner next submitted that the findings of the Disciplinary Authority in concurring with the Enquiry Officer and the additional finding on

the finding based on the report of the forensic expert of the JEQD, are perverse. In this regard I find that the principal defence of the writ petitioner

that he allegedly returned the tour advance to D.K.Kamble, his superior and that his superior has issued a receipt for the same, is not supported by the

evidence on record. The purported money receipt has been certified to be manufactured document. The certificate has been issued by the GEQD.

The writ petitioner also failed to cross-examine the said officer Mr.D.K.Kamble, who deposed in evidence as a P.W. There is no other proof of return

of the said tour advance. The findings of the Enquiry Officer and Disciplinary Authority are therefore supported by evidence on record and cannot be

faulted. The writ petitioner allowed the Management to recover the said sum of money from his salary. There is therefore, no perversity in the

findings of the Disciplinary Authority.

The next argument of the writ petitioner is that his past conduct ought to have been mentioned in the charge sheet for the purpose of enabling him

to know the factors likely to weigh with the Disciplinary Authority on the question of punishment. In this regard I have considered the decisions of the

Hon’ble Supreme Court in the cases cited by the writ petitioner. However in the case of Bishambar Das Dogra Vs. Union of India & Ors.,

reported in 2009(13) SCC 102. The Hon’ble Supreme Court has stated as follows: -

In Govt. of A.P. & Ors. v. Mohd. Taher Ali (2007) 8 SCC 656, this Court rejected the contention that unless the past conduct is a part of charge-

sheet, it cannot be taken into consideration while imposing the punishment observing that ""there can be no hard and fast rule that merely because the

earlier misconduct has not been mentioned in the charge sheet it cannot be taken into consideration by the punishing authority. Consideration of the

earlier misconduct is often necessary only to reinforce the opinion of the said authority.

In fact in this case the argument had been advanced that if the disciplinaryauthority wanted to consider the past service record of the employee, it

should be a part of charge-sheet. Though in K. Manche Gowda (supra), this Court said that it should be so indicated in the second show cause notice

only for the purpose of imposing punishment. Thus it is not necessary that it should be a part of the charge sheet.

In Colour-Chem Ltd. v. A.L. Alaspurkar & Ors., AIR 1998 SC 948, this Court considered the statutory rules which itself provided as what can be

taken into consideration while imposing thepunishment and it also referred to the consideration of the past record of the employee.

In view of the above, it is evident that it is desirable that delinquent employeemay be informed by the disciplinary authority that his past conduct

would be taken into consideration while imposing the punishment. But in case of misconduct of grave nature or indiscipline, even in absence of

statutory rules, the authority may take into consideration the indisputable past conduct/service record of the employee for adding the weight to the

decision of imposing the punishment if the facts of the case so require. The Manche Gowda decision cited by the petitioner has been considered by

the Hon’ble Supreme Court.

From the above it is clear that it is desirable to mention past conduct either in the charge sheet itself or the second show-cause-notice that may be

issued and order forwarding the Inquiry report by the Disciplinary Authority. However, it is not fatal to the Inquiry and the order of punishment if the

same is not so mentioned as observed hereinabove. In the case of serious misconduct past conduct may be considered even without notice to a

delinquent. A delinquent is deemed to be aware of his own past conduct. He is expected to learn not to undesirable actions of the past. If despite

warnings or earlier punishment a delinquent chooses to repeat the same he misconducts himself again on his own peril. In the instant case however,

the penalty in question could have been imposed even if past conduct was not considered by the Disciplinary Authority.

The next argument of the petitioner was that the refusal on the part of the Inquiry Officer to summon Sri Y.P.Singh and Mrs.M.M. Bhagat. It is

found that the petitioner had wanted them to ascertain as to why they had recommended commencement of Inquiry against him. The petitioner has

not indicated how the 2 persons were material to his defense in the inquiry. The Enquiry Officer was therefore justified in refusing to invite the 2

persons as witnesses in the Inquiry.

The last argument of the writ petitioner is on the quantum of punishment imposed. The writ petitioner argued that even if the misconduct

complained against him was proved, a major penalty of dismissal could not be imposed on him. The petitioner argued that a lesser punishment ought to

have been imposed on him. The proven misconduct in this case was non-return of money given to the petitioner for discharging his duties. The refund

was warranted as the particular duty which involved travel and stay outside his ordinary station was cancelled before it was undertaken. The writ

petitioner is therefore guilty of a serious financial irregularity. The proven misconduct of failure to mortgage is flat unit to secure the housing loan

obtained from the Textile Committee has also exposed the Textile Committee to serious financial loss. The aforesaid two acts coupled with a third

charge leads to a complete loss of confidence of the management in an employee. Such a person is not desirable in any Organization much less a

public organization. The penalty of dismissal imposed on the writ petitioner for proven misconduct against charges in question per se warrants the

major penalty of dismissal. Such penalty is although more warranted given the past misconduct of the writ petitioner. This punishment of dismissal is

commensurate with the charges proved against the petitioner. The punishment is not disproportionate with the charges proved against the petitioner.

For the reasons stated hereinabove W.P. No.9529(W) of 2014 is hereby dismissed.

There shall be no order as to costs.

Urgent xerox certified copy of this judgment, if applied for, be supplied to the parties on urgent basis.