Sankar Prasad Ray vs West Bengal State Electricity Distribution Company Limited and Others

Sambuddha Chakrabarti, J.—The questions raised by the petitioner challenging the departmental proceeding and the consequential order of punishment may not for the time being gone into for the purpose of disposal of the writ petition. The petitioner has challenged the charge-sheet dated March 25, 2006, the report of the enquiry officer and the final order dated December 12, 2008 and has prayed for a cancellation of the same. For the present purpose we need not go into the details of the case. Suffice it to say that the petitioner while working as the Head Cashier of the Kolaghat Group Electric Supply under the then West Bengal State Electricity Board which has been renamed as West Bengal State Electricity Distribution Company Limited (the Company, for short) was charge-sheeted on March 26, 2006 on various grounds.

The substance of the charges against the petitioner was that he had unauthorizedly accepted money for effecting temporary connection on the occasion of Basanti puja. The petitioner had kept the money with him without depositing the same to the company''s fund and prepared one yellow card in favour of the consumer who was thus allowed to enjoy electricity without paying the dues to the Board. There were four charges of almost the same nature that the petitioner had taken money from four persons and temporary connection was effected without drawing any quotation, without issuing any money receipt and no deposit with the Board''s fund. It was further alleged that on two occasions he had confessed his guilt.

In the enquiry proceeding that followed the petitioner was found guilty and ultimately after a second show-cause notice the disciplinary authority by a final order dated December 12, 2008 had imposed the punishment of reduction of annual increments with cumulative effect. It was further ordered that the petitioner would earn his next increment on one year''s satisfactory services from the date of the effect of the order.

The writ petition was moved at the stage of issuing the second show-cause notice against the petitioner. With liberty given by this court to challenge the final order the petitioner amended the writ petition after the final order was passed.

The petitioner retired from service on June 30, 2009. By an office order, dated August 4, 2009, he was given deemed promotion to the post of Assistant Cash Officer with effect from April 25, 2004.

Mr. Dutta, the learned advocate for the petitioner, raised several issues relating to the authority of the charge-sheet and the disciplinary proceeding initiated against the petitioner. According to him since the persons who were alleged to have handed over money to the petitioner for temporary connection had not been produced at the enquiry the charges should be deemed as not proved and there was absolutely no ground for the authorities and the enquiry officer to find the petitioner guilty of the charges. The disciplinary authority ought not to have approved the report of the enquiry officer.

Undoubtedly these could be relevant issues but for the fact that the petitioner himself had admitted the commission of the offence before the authority. It may be mentioned that in the charge-sheet itself there was reference to his confession. Even if a pre-charge-sheet confession is not taken into consideration a confession made after the charge-sheet was issued cannot be ignored. For example, in reply to the charge-sheet the petitioner had admitted the charges. He had further taken a specific point which he had clarified in the written statement that on account of three temporary connections he had handed over to the Sr. S.S. Manager a sum of Rs. 2,300/-. In fact the reply makes reference to the statements made by him earlier which makes these statements relevant for the purpose of this proceeding. In reply to the charge-sheet he also referred to his earlier statement dated July 5, 2005 that acceptance of money on Board''s account without granting receipt was an offence and he expressed his regret for that. The only defence that he had taken was that he had received it at the instance of Sr. Station Superintendent Sri Patra without granting any receipt and against no quotation. He had admitted "for a veteran employee like me and like my Sr. S.S. Sri P.K. Patra, the commission/omission related to such offence and the method adopted as reflected in the articles of charges is not only astonishing but also highly embarrassing and ridiculous."

This has also been admitted by the petitioner in his written defence of argument. In his representation to the report of the Enquiry Officer the petitioner admitted to have taken Rs. 2,300/- from three persons and expressed his readiness to refund the said amount.

Again in his reply to the second show-cause notice after the submission of the enquiry report the petitioner admitted in almost identical language that as a loyal employee he admitted in good faith that he had taken a sum of Rs. 2,300/- from different persons during the period from April 11, 2005 to April, 13, 2005 for reasons other than his personal gain. He had also expressed his readiness to refund the amount as and when directed by the competent authority.

Thus, there is no doubt with regard to the factual aspect of his taking money without proper authority and sanction. In a fact-finding departmental enquiry nothing more could be done. The defence that he had returned the money to other persons was perhaps not a valid one in view of the fact that in reply to his second show-cause notice he expressed his willingness to refund the money. After this admission the requirement of entering into the other aspects of the case to find out whether the case was proved or not, is inconsequential and is of academic interest only.

In the case of Central Bank of India Ltd. Vs. Karunamoy Banerjee, the Supreme Court held that if the allegation are denied by the workman the burden of proving the truth of those allegations will be on the management. But if the workman admits his guilt, to insist upon the management to let in evidence about the allegations will only be an empty formality. The Supreme Court observed:

When once the workman himself has, in answer to the charge levelled against him, admitted his guilt, in our opinion, there will be nothing more for the management to enquire into.

In the case of Additional District Magistrate (City) Agra Vs. Prabhakar Chaturvedi and Another, the Supreme Court reversing the view taken by the High Court had held that the respondent No. 1 in that case had himself by his statement admitted to have received an amount of Rs. 21,000/- and odd on account of the clear admission contained in writing given by the respondent No. 1. The charge against him stood proved on admission.

In the case of Dharmarathmakara Raibahadur Aroot Ramaswamy Mudaliar Educational Institution Vs. The Educational Appellate Tribunal and Another, the Supreme Court held that giving of an opportunity or enquiry of course was a check and balance concept that no one''s right was to be taken away without giving him or her an opportunity or without enquiry in a given case or where statute so requires. But this cannot be in a case where allegation and charges are admitted and no possible defence is placed before the authority concerned. The Supreme Court held that in a case where the facts are almost admitted, the case reveals itself and is apparent on the fact of the record. It would be not a fit case to interfere with termination order.

In more recent times in the case of Chairman cum Managing Director, Coal India Limited and Another Vs. Mukul Kumar Choudhuri and Others, the Supreme Court had held:

It has been time and again said that it is not open to the High Court to examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions and that power of judicial review is not directed against the decision but is confined to the decision making process. In a case such as the present one where the delinquent admitted the charges, no scope is left to differ with the conclusions arrived at by the inquiry officer about the proof of charges. In the absence of any procedural illegality or irregularity in conduct of the departmental enquiry, it has to be held that the charges against the delinquent stood proved and warranted no interference.

While reversing the judgements of the High Court the Supreme Court further observed:

The Division Bench like the learned single judge fell into grave error in not adequately adverting to the fact that the charges were admitted by the delinquent unequivocally and unambiguously and, therefore, a misconduct of respondent No. 1 was clearly established.

As such we need not go into any further aspect relating to the commission of the offence. Admission is a valid piece of evidence and it has been accepted by the respondent authorities.

Mr. Dutta has, however, taken a point that this admission in disciplinary proceeding cannot be acted upon for finding an employee''s guilt. In support of his contention he has relied on the case of Roop Singh Negi Vs. Punjab National Bank and Others, . In the said case the appellant was alleged to have confessed to the police that he was involved in stealing a bank draft book from the bank and in that connection the Supreme Court held that the purported evidence collected during investigation by the investigating officer against the accused by itself could not be treated to be an evidence in the disciplinary proceeding. The appellant being an employee of the bank his confession should have been proved and some evidence should have been brought on record to show that he had indulged in stealing the bank draft book.

This judgement for obvious reasons cannot have any application to the present case. In that case the confession was made before the investigating agency and not before the authorities during the disciplinary proceeding which was a quasi-judicial proceeding. In the present case the petitioner having admitted his offence could not expect to have the offence separately proved after the same being squarely and absolutely admitted by him in no uncertain terms before the disciplinary authority itself.

Mr. Dutta, the learned advocate for the petitioner had taken a further point that the petitioner had been given promotion by the disciplinary authority with the full knowledge that enquiry proceeding was pending against him. Therefore, this must be deemed to be a condonation of the alleged offence against the petitioner. This argument does not take care of the fact that the petitioner was given promotion retrospectively after the conclusion of the departmental proceeding and in fact after his retirement. It may not be lost sight of that after all the petitioner was not dismissed from the service. The punishment clearly shows that the respondents did not consider it sufficient to terminate him from service. They had subsequently decided to give the petitioner promotion which Mr. Panja said was his assured promotion. When promotion is given subsequently the question of condonation does not arise. It might have been different if the promotion had been given to him during the enquiry itself or before the initiation of the proceeding.

In such view of it I do not find any reason to interfere with the order passed by the disciplinary authority. The prayers made by the petitioner are not maintainable.

The writ petition has no merit and is hereby dismissed.

The shall, however, be no order as to costs. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.