Jyotirmoy Uthasini vs The Calcutta Port Trust and Others

Shivakant Prasad, J.—The petitioner employed as Gangman was placed under suspension by order dated 15.9.1984 issued by the Deputy General Manager, Haldia Dock Complex on allegation of gross misconduct for which disciplinary proceedings were contemplated against him.

The petitioner was served with a charge-sheet bearing No. Disc/119/374 dated 14.11.1984 issued by the Respondent No. 4 and an enquiry was held against him under Rule 11of the Calcutta Port Commissioners'' Employees'' (Discipline and Appeal) Rules, 1964 (hereinafter referred to as to the said Rules) in respect of two charges of gross misconduct viz. (i) misbehavior by rushing towards Sri Kuraram Dutta, Junior Assistant Manager, I and C.F. Division on 14.9.1984 at about 15:55 hrs. and shouting abusive and filthy language at him; and (ii) physically assaulting Sri Kuraram Dutta, Junior Assistant Manager, I and C.F. Division on 14.9.1984 at about 15:55 hrs. being an act subversive of discipline.

According to the petitioner on receipt of the charge-sheet, he submitted an exculpatory statement denying the charges framed against him. He pleaded that on the date of the alleged incident he was absent on duty and as such the charges framed were baseless and frivolous.

At the outset, Mr. Himadri Sekhar Chakraborty Learned Counsel for the petitioner contended that scrutiny of the charge-sheet would reveal that there are various expressions in the charge sheet about the petitioner''s guilt as the Deputy General Manager who issued the charge sheet found the petitioner guilty of gross misconduct leveling that petitioner has committed an act subversive of discipline. Inviting my attention to annexure ''A'' at Page 46, it is pointed out that language of charge-sheet reveals that it is bad in that the very mention of the guilty in the charge-sheet, when the guilt of the petitioner was yet to be established, unmistakably points towards the fact that the petitioner''s case was prejudged and the authority framed charge-sheet with closed mind as the disciplinary authority had already expressed its mind and views against the petitioner giving impression to the petitioner that there would be no fair and impartial enquiry. In support of his contention, he referred to a decision of Meena Janah Versus The Deputy Director of Tourism (Headquarters) Home (Tourism) Department, Government of West Bengal and Ors. reported in 1974 (2) SLR Page-466 at Paragraph 20 of the Judgment, reproduced hereunder :

"It is settled law that an open mind must be kept with regard to the charges alleged to have been committed by a Government servant until the said charges are proved. If it appears even on the basis of the charge sheet itself that the disciplinary authority has failed to keep its mind open in regard to the alleged offence committed by the delinquent employee and that such employee is liable to a particular punishment, in that event the fundamental principles governing compliance with the principles of natural justice has to be held to have been violated and the charge-sheet, that is to say, the notice itself becomes invalid."

Reference has also been made to a case of State of Punjab Vs. V.K. Khanna and Others, (2000) 3 JT 349 Supp : (2000) 7 SCALE 731 : (2000) 5 SCR 200 Supp : (2000) AIRSCW 4472 : (2000) 8 Supreme 105 as regards closed mind of the disciplinary authority and adverted to observation of the Supreme Court in the following paragraph:--

"While it is true that justifiability of the Charges at this stage of initiating a disciplinary proceeding cannot possibly be delved into by any court pending inquiry but it is equally well settled that in the event there is an element of malice or malafide, motive involved in the matter of issue of a charge-sheet or the concerned authority is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in that event law courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious, it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law courts ought to rise up to the occasion and the High Court in the contextual facts has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings."

I have respectfully gone through the cited decision which is distinguishable from the facts of the instant case inasmuch as in the cited case the fact of announcement of the Chief Minister in regard to appointment of an Inquiry officer to substantiate the frame of mind of the authorities depicting bias was taken note of as an illustration to a mindset by the Hon''ble Apex Court. viz.: the inquiry shall proceed irrespective of the reply. Is it an indication of a free and fair attitude towards the concerned officer? The answer cannot possibly be in the affirmative.

Per contra, Mr. Alok Banerjee, the Learned Counsel for the respondent refers to contents at Page-46 which is reproduced hereunder:--

The undersigned proposes to hold an enquiry against under Rule 11 of the Calcutta Port Commissioners'' Employees" (Discipline and Appeal) Rules, 1964. The statement of imputation of the misconduct or misbehavior in respect of which the enquiry is proposed to be held is set out in the enclosed statement of article of charge (Annexure-I). A statement of imputation of misconduct or misbehavior in respect of the Article of charge is enclosed (Annexure-II).

is directed to submit within 10 days of the receipt of this letter, a written statement of his defence and also to state whether he desires to be heard in person.

He is informed that an enquiry will be held only if the article of charge is not admitted. He should, therefore, specifically admit or deny the article of charge. Is further informed that if he does not submit his written statement of defence on or before the date specified in Paragraph-2 above, the Enquiry Authority may hold an enquiry against him ex- parte.

The receipt of the letter may please be acknowledged.

Enclo: Annexure-I and II.

Sd/- illegible. Dy. General Manager."

On bare reading of the statement of imputation of misconduct or misbehavior and the statement of article of Charges vide Annexure-I &II, it cannot be said that it was a case of close mind of the authority. Annexure-II at Page-48 clearly describes the backgrounds of the incident which led to enquiry against the petitioner including other employees. It goes to show that on 14.9.1984 in the morning, one derailment took place in front of ''F'' cabin. As the sorting line No. Zero railway track was already out of commission, there was no other direct route to the departure grid in C.M. Yard from Hulk Handling Yard for Traffic movement at that time. Gang No. 4 and 2 of the I and CF Division were instructed to do backing work on the subsided stretch in the above track. At about15:30 hrs. Shri Kuraram Dutta, Jr. Assistant Manager-III, I and CF Division was advised to assess the progress of aforesaid work done by Gang No. 4 and 2 on the said date. On reaching at about 15:40 hrs.along with Shri A.K. Achareya, A.P.W.-1, he came across Shri Dulal Ch. Guria, P.W. Mistry and enquired about the position and the progress of the work which was specifically allotted in the morning. Shri Guria reported that the Gangmen of Gang No. 4 had not taken up the said allotted work. Thereafter, Shri Dutta proceeded little further and met Shri Badal Ch. Hazra, Mate of Gang No. 4 and asked him why the scheduled work was not started and carried out. Shri Hazra replied very reluctantly that they would look into the matter after arrival of the Gang No. 2. Shri Dutta then waited for further 15 minutes for the arrival of the Gangmen of Gang No. 2.

As the Gangmen of Gang No. 2 did not turn up, Shri Dutta then came back to Dy. Manager-II to report the position. When he had started moving towards the car waiting for him, suddenly Shri Hazra, Mate of Gang No. 4 along with the Gangmen working under him rushed towards him aggressively and Shri Hazra prevented Shri Dutta from proceeding further by wrapping him around his waist with a red banner flag and pulling towards standing wagons in the yard. He also shouted while pulling him and used threatening language. This action of Shri Badal Ch. Hazra provoked the Gangmen of Gang No. 4 who rushed aggressively towards him and shouted with abusive and threatening languages. Meanwhile, the Gangmen of Gang No. 2 and 3, who were present also rushed aggressively towards the spot shouting at Shri Dutta with abusive and filthy languages. Some of them started manhandling and beating Shri Dutta with blows and kicks. Shri Dutta could recognize Gangmen, I and CF Division was one amongst them.

It also appears from Annexure-II that after a while, the situation subsided as a result of persuasion made by Shri Acharya and helped him come out and manage to return to the office at Chiranjibpur at 16:45 hrs.

This is what is the incident which resulted in departmental enquiry against the petitioner including other Gangmen working under the respondent No. 1. Therefore, the proposal to hold an enquiry under Rule 11 of Calcutta Dock Commissioners'' Employees" (Discipline and Appeal) Rules, 1964 with the statement of imputation of the misconduct or misbehavior cannot be said to be with a close mind of the authority so as to attract the above cited decisions in as much as the petitioner was given opportunity of defence. That apart, there is no mention of the word ''guilty'' in the charge sheet as alleged.

Learned Counsel for the respondent refers to the case of Maharashtra State Board of Secondary and Higher Secondary Education Vs. K.S. Gandhi and Others, (1991) 2 JT 296 : (1991) 1 SCALE 187 : (1991) 2 SCC 716 : (1991) 1 SCR 773 wherein it has been observed at Para 21 thus,

" It is settled law that the reasons are harbinger between the mind of the maker of the order to the controversy in question and the decision or conclusion arrived at. It also excluds the chances to reach arbitrary, whimsical or capricious decision or conclusion. The reasons assure an inbuilt support to the conclusion/decision reached. The order when it effects the right of a citizen or a person, irrespective of the fact, whether it is quasi-judicial or administrative fair play requires recording of germane and relevant precise reasons. The recording of reasons is also an assurance that the authority concerned consciously applied its mind to the facts on record. It also aids the appellate or revisional authority or the supervisory jurisdiction of the High Court under Art. 226 or the Appellate jurisdiction of this Court under Art. 136 to see whether the authority concerned acted fairly and justly to meet out justice to the aggrieved person." (see also 2010 (1) CHN 619).

By referring to the aforesaid decision it is contended that similar charge sheet has been submitted in the present case, ergo it cannot be said that disciplinary authority had closed mind in framing the article of charges with an object in mind to hold the delinquents guilty at the threshold.

Mr. Banerjee Learned counsel also refers to a decision reported in Union of India (UOI) and Others Vs. Upendra Singh, (1994) 68 FLR 762 : (1994) 207 ITR 782 : (1994) 1 JT 658 : (1994) 1 LLJ 808 : (1994) 1 SCALE 637 : (1994) 3 SCC 357 : (1994) 1 SCR 1070 : (1994) 2 SLJ 77 : (1994) 1 UJ 434 wherein the Hon''ble Apex Court observed thus,

"In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceeding, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court / tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal v. Gopi Nath and Sons. The Bench comprising M.N. Venkatachaliah, J. (as he was then) and A.M. Ahmadi, J., affirmed the principle thus: (SCC p. 317, para 8)

"Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of the Judicial review is to ensure that the authority after according fair treatment reaches, on a matter which is authorized by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."

In second fold argument, the Learned Counsel for the petitioner submits that Rule 13 of the Calcutta Port Commissioners'' Employees'' (Discipline and Appeal) Rules, 1964 has not been followed. The said Rule provides for joint enquiry which reads as under:

"Subject to the provisions of the Act, Where two or more employees are concerned in any case, the Commissioners-in-Meeting with the approval of the Central Government, or any other authority competent to impose the penalty of dismissal from service on all such employees may make an order directing that disciplinary action against all of them may be taken in a common proceedings.

Provided that if one of the employees involved in a joint enquiry is a Head of a Department, the Disciplinary Authority shall contain the prior concurrence of the Central Government before ordering the joint enquiry."

Having gone through, in between the lines of the clause 13 of the said Rule, it appears to me that provision is applicable only in case, where imposition of the penalty of dismissal from service is proposed, so the contention that Joint enquiry ought to have been done on getting prior approval of the Central Government is of no avail to the petitioner as penalty imposed upon the petitioner is a minor penalty.

In third fold argument the Learned Counsel for the petitioner submits that defence witnesses were not examined by the enquiry officer. It is contended that in the course of enquiry the petitioner along with other charge-sheeted employees demanded the presence of one Sri Dulal Gunia and one Sri Gobinda Biswas, both employees of the Port Trust and both of whom were allegedly eye witnesses of the alleged incident and that inspite of the repeated request made to the Enquiry Officer, said two employees being the witnesses were not produced for their cross-examination.

Per contra, Mr. Banerjee the Learned Counsel appearing for the Respondent has submitted that it is not the duty of the Enquiry Officer to summon the witnesses suo-motu or on its own. In support of his contention, the Learned Counsel relied on a decision reported in Naresh Govind Vaze Vs. Govt. of Maharashtra and Others, (2008) 2 CLT 183 : (2008) 116 FLR 174 : (2008) 1 SCC 514 : (2008) 1 SCC(L&S) 223 : (2007) 12 SCR 863 .

In the cited decision, the appellant was a Judicial Officer whose service was terminated by the Government of Maharashtra on the recommendation made by the High Court of Bombay relying on the basis of a report of an Enquiry Officer appointed to enquire into the charges leveled against him. The most of the charges leveled against the appellant were in relation to use of ill temperate language in his representation. It was held by the Hon''ble Apex Court that the delinquent officer in his representation to the second show-cause notice had used such language which does not behoove a Judicial Officer. Adverting to Paragraph 24 of the cited decision learned Counsel for the respondent submits that an Enquiry Officer cannot summon witness who has nothing to do in the matter and that the delinquent officer much show that the witnesses to be summoned have something to do with the issue involved in the disciplinary proceeding.

In this context, it is evident from the copy of order of disciplinary authority at Page- 71to the writ petition that a mention has been made that the E.O. has not agreed to examine two employees of the Court viz. Shri Dulal Ch. Guria and Shri Gobinda Biswas. The Enquiry Officer is fully within his limit to exclude any person who were not produced by the management as witness and not considered relevant by him. The fact of mere no recording of reasoning on this point is not sufficient to vitiate the proceeding; if it is otherwise established that the examination of the witnesses that were produced and accepted by the E.O. is sufficient to come to a different conclusion. It is also evident from the said copy of the order that the disciplinary authority has in crystal clear term observed that it is on record that the defence counsels have jointly declined to produce any defence witnesses for examination before the Enquiry Officer as depicted from Page- 58 Para-1790 of enquiry report. This court does not find any reason to hold otherwise that by virtue of non-examination of the witnesses aforesaid the entire report has to be thrown out. This fact cannot be lost sight of as to why did the petitioner not cite the said two persons as his defence witnesses. Though, the petitioner has made averment that the delinquents had made request to the Enquiry Officer for production of the said witnesses which in my view appears to be a wishful thinking on the part of the petitioner because there was no such application filed to adduce defence witnesses.

I am in agreement with the argument advanced by the Learned Counsel for the respondent and of the considered opinion that the entire enquiry report which reached its finality by the reasoned order of the appellate authority cannot be attacked on the score that the employees namely Shri Dulal Ch. Guria and one Shri Gobinda Biswas alleged eye witnesses to the incident were not examined by the Enquiry Officer.

Fourthly, it is urged by Mr. Chakraborty the learned counsel for the petitioner adverting to the enquiry report at Page-53 that although, Charge No. 1 brought against the present petitioner under Charge-sheet Memorandum No. Disc./119/374 dated 14.11.1984 has been established against him, nevertheless, the Charge No.-II relating to physically assaulting Shri Kuraram Dutta, Jr. Assistant Manager-III, I and CF Division on 14.9.1984 at about 15:55 hrs.was not established, whereas the Deputy Chairman, Haldia Dock Complex being the disciplinary authority was of the opinion that article of Charge No.-II has also been established and proved and for that findings arrived at by him was enclosed with the Memorandum No. Disc./119 dated 30.04.1991 Annexure-''E''. I do find that the reason given by him is that the Charge No.-II against the delinquent also stood established on the same ground and analogy of the fact that has been relied upon by the Enquiry Officer to establish Charge No.-II against Shri Balai Ch. Das and Ranjit Kr. Jana and the disciplinary authority concluded in the same fashion under similar circumstances and set of evidence while visiting the petitioner amongst six delinquents with the punishment.of reduction to the lower stage of their time scale of pay for three years. It would appear from the enquiry report that Shri Kuraram Dutta, Jr. Assistant Manager-III, I and CF Division had recognized the petitioner amongst six delinquents for having hurled abusive languages, holding out threat and assaulting him with blows and kicks. Out of the six Charge-sheeted employees, the petitioner amongst four delinquents belonged to Gang No. 4 who had taken the plea of alibi ie absence from duty on the date of incident on 14.9.1984. It will appear that all the four delinquents including the petitioner were present on the date of incident whereas they had tried to overwrite the muster sheet in a bid to take plea of absence on the said date. Thus, with the reasoned order the authority concerned held the petitioner amongst other delinquents guilty for the Charge No.-I as well as Charge No.-II.

Therefore, the argument of the learned counsel for the petitioner that the Disciplinary Authority did not assign reason for holding Charge No.-II against the petitioner violating the Rule 11(1)(a) has no leg to stand in my considered view. The said rule enjoins as under:--

"If the Disciplinary Authority, having regard to its findings on the charges, is of the opinion that any of the penalties specified in clauses (iv) to (vii) of rule 9 should be imposed, it shall-

(a) furnish to the employee a copy of the report of the Enquiring Authority and, where the Disciplinary Authority is not the enquiring Authority a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Enquiring Authority;"

Yet, Mr. Chakraborty refers to a decision of Chairman, LIC of India and Others Vs. A. Masilamani, (2013) 136 FLR 81 : (2013) LLR 301 : (2012) 11 SCALE 413 : (2013) 6 SCC 530 : (2013) 2 SCT 283 which reads as under:--

"The word "consider" is of great significance. The dictionary meaning of the same is, "to think over", "to regard as", or "deem to be". Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term "consider" postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order (Vide Indian Oil Corpn. Ltd. V. Santosh Kumar and Bhikhubhai Vithlabhai Patel V. State of Gujarat.)"

I finds that the appellate authority on careful consideration of the enquiry report and the findings as well as records of the enquiry was in the agreement with the findings of the Enquiry Officer and that of the disciplinary authority while holding the articles of Charge Nos. -I and II having been established against the petitioner with his findings arrived by him in his order which has been considered in the appeal preferred by the concerned employee and having gone through the report of the enquiry and findings of the Enquiry Officer and that of the disciplinary authority imposition of penalty on the delinquent and after careful consideration, the appellate authority has rightly concluded that the findings of the disciplinary authority are warranted by evidence on record and the charges brought against the concerned employees was a serious in nature and further held that the punishment awarded by the disciplinary authority is not disproportionate to the nature and misconduct committed by the delinquent and was therefore justified.

Thus, having gone through the decision once again and adhering to the principle enshrined therein, I hold by lending words from Paragraph-18 of the cited decision that the Court should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is dehors the limits of judicial review. In the event that the Court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show-cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by the Court. The same principle is applicable in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question have to be examined taking into consideration the gravity/magnitude of charges involved therein. The essence of the matter is that the Court must take into consideration all relevant facts and to balance and weigh the same, so as to determine if it is fact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated only on the ground of delay in their conclusion. The Case in the cited decision was in respect of charges merely technical as the loan was taken for construction of a residential premises and the said loan was used effectually to construct the premises as per sanctioned plan and only then the premises was put to commercial use. In my considered opinion the facts and circumstances of the instant case is also distinguishable from the facts as revealed from the above cited decision.

The learned counsel for the respondent contended that the petitioner was found guilty of the charges No I &.II by the disciplinary authority in disagreement with the findings of Enquiry officer which has been lawfully done. He fortified his argument by placing reliance on the principle of law as laid down in a decision of Bank of India and Another Vs. Degala Suryanarayana, AIR 1999 SC 2407 : (1999) 82 FLR 1004 : (1999) 4 JT 489 : (1999) 2 LLJ 682 : (1999) 4 SCALE 75 : (1999) 5 SCC 762 : (1999) SCC(L&S) 1036 : (1999) 3 SCR 824 : (1999) AIRSCW 2529 : (1999) 6 Supreme 39 to the following effect,

"The law is well settled. The Disciplinary Authority on receiving the report of the Enquiry Officer may or may not agree with the findings recorded by the latter. In case of disagreement, the Disciplinary Authority has to record the reasons for disagreement and then to record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the Enquiry Officer for further enquiry and report.

Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The Court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of malafide or perversity i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that findings. The Court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained, in Union of India (UOI) Vs. H.C. Goel, AIR 1964 SC 364 : (1964) 9 FLR 161 : (1964) 1 LLJ 38 : (1964) 66 PLR 305 : (1964) 4 SCR 718 the Constitution Bench has held:--

"the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not."

Lastly, the learned counsel for the petitioner submits that separate order ought to have been passed in respect of each and every delinquent and that the petitioner stands on the same footing as that of the petitioner of C.O. No. 3113(W) of 1993, entitled to be exonerated from the charges.

In this context, learned counsel for the respondent contended that one delinquent having been exonerated by the decision of a Single Bench in C.O. No. 3113 (w) of 1993 cannot be a ground for exonerating the petitioner from the charges for which he was found guilty and punished suitably.

Thus, giving an anxious consideration to the facts and circumstances of the case, the magnitude of the charges found against the petitioner, this Court cannot interfere with discretion exercised by the disciplinary authority, and/or by the appellate authority with regard to the minor penalty imposed upon the petitioner and hence, further bearing in mind the clenched position of administrative law, I do not find any illegality or material procedural irregularity to interfere into the findings of the appellate authority of the respondent concerned.

Accordingly, the writ petition is dismissed, however without any order as to cost.

Urgent certified photocopy of this Judgment and order, if applied for, he supplied to the parties upon compliance with all requisite formalities.