Shibdas Chatterjee vs State of West Bengal and others

Madhuresh Prasad, J

It is stated that the list could not marked on the fateful day, therefore, there occurred a default in appearance. The application further discloses that thereafter the learned advocate suffered from a knee injury and was confined. He, therefore, could not appear in court up to the year 2024. Only when he was capable of attending to his professional duties, he became aware of dismissal of the appeal and has, thus, filed the application for restoration.

We find sufficient cause made out for restoration of appeal. The application for restoration is allowed.

We, have determination to take up the present matters arising out of Tribunals under Article 323A & 323B of the Constitution of India, and thus invited the parties to make submissions on the merits of the matter and have heard the submissions of the rival parties.

Disposed of accordingly.

The petitioner was the applicant before the West Bengal Administrative Tribunal (in short ‘Tribunal’) in O.A. No.857 of 2003. He assailed the charge memo and entire proceedings conducted pursuant to the charge memo dated 13.04.1992. The final order of dismissal passed by the Disciplinary Authority (Superintendent of Police, Bankura) on 19.01.2012 was also put to challenge. He also assailed the consequential orders issued in compliance of the order of punishment date 19.01.2012.

The factual background arising from the charge memo forming the substance of the allegation against the petitioner is that at the time of obtaining employment, the petitioner was accused of submitting a Transfer Certificate from a school so as to take benefit of a mere advantageous date of birth, which was at variance with his date of birth, entered by him while obtaining earlier appointment as a Home Guard.

After issuance of the charge memo, the authorities allowed the petitioner personal hearing. On his non-acceptance of the charges, he was allowed an opportunity to submit his written statement of defence. An Enquiry Officer was appointed who enquired into the charges. 13 prosecution witnesses were adduced on behalf of the department. The petitioner was also allowed opportunity to cross-examine the prosecution witnesses adduced on behalf of the department. The petitioner’s defence witnesses were also examined.

After an exercise in these terms, the enquiry report dated 10.07.2002 was submitted by the Enquiry Officer. The Enquiry Officer found the charges proved. The petitioner, thereafter was afforded an opportunity by the Disciplinary Authority and after due opportunity, the disciplinary authority by its order dated 19.01.2012 has accepted the findings of the Enquiry Officer and awarded the punishment for dismissal from service.

The learned advocate for the petitioner submits that the findings in the proceedings are unsustainable and stand vitiated for lapses:

(1) The charge memo was not issued by the authority in accordance with procedure specified in the Police Regulations of Bengal, 1943 (in short ‘PRB’). He submits that the petitioner at the time the charge memo was served on the petitioner, he was posted under the S.P., Birbhum. The S.P., Birbhum, however, did not apply an independent judicial mind before framing the charges and was influenced by the S.P., Bankura. The charges were framed at the behest of the S.P., Bankura. The proceedings, founded on such charges, are unsustainable.

(2) It is further submitted that in respect of a charge memo issued in 1992, the authorities have protracted the proceeding and finally Enquiry Report has been submitted after a decade. The delay, therefore, defeats the fairness in the proceeding and on account of such delay, the proceeding is liable to be quashed.

Another ground urged on behalf of the petitioner is that the petitioner was proceeded against for the same charge in a criminal case. The criminal case ended in acquittal. In these circumstances, the findings of the Enquiry Officer, at variance with the findings of the criminal trial, are unsustainable.

In support of his submissions, the learned advocate relied upon the provisions contained in Regulation 858(2) and Regulation 861(O) of the PRB. He has also referred to a decision of the Apex Court in the case of A. K. Roy and another Vs. State of Punjab and others reported in (1986)4 SCC 326 and in the case of Joint Action Committee of Air Line Pilots’ Association of India (ALPAI) Vs. Director General of Civil Aviation and others reported in (2011) 5 SCC 435. Referring these two judgments, it is submitted that the law is well settled that where an authority is vested with the power to do a thing or perform a duty; and the statute or rule specifies the manner in which such duty is to be discharged or power is to be exercised, then it can be done in that manner only. All other modes stand expressly barred. The judgments fortify his submissions that when an authority performing a statutory duty is required to exercises independent discretion, without being effected by any extraneous circumstances.

Lastly, he has drawn attention of this court towards the findings in the criminal trial wherein the same charges formed the subject of petitioner’s accusation, to submit that the petitioner was acquitted in the criminal trial wherein the authorities did not produce any material in support of the allegations. Therefore, he could not be held guilty for the same charge in a departmental enquiry.

Mr. Mukherjee, learned AGP appearing for the State, on the other hand, draws attention of the court towards the findings of the Tribunal in respect of the delay. It is submitted that the petitioner himself had obtained a stay of the proceeding from the High Court in the earlier writ petition filed by him. An interim order appears to be in operation till 12.09.2011. The same is apparent from a reading of the order dated 12.09.2011, passed in the petitioners’ O.A No.857 of 2003. On this date the Tribunal was pleased to vacate the interim order. The fact that an interim order was coming in the way of conduct of the proceedings against the petitioner is evident from even the final order passed in the enquiry wherein the disciplinary authority has recorded as follows:

“After considering all the facts and circumstances in the backdrop of charges extremely grave in nature and applying the principles of natural justice, I give him punishment for those charges which stands proved and order that C/1259 Shibdas Chatter of Bankura D.P.F. is dismissed from the service. However, this order will be implemented after hearing before the Hon’ble WBAT, Kolkata on 20/01/2012 in respect of OA No-857 of 2003 in the matter of Shibdas Chatterjee –Vs- The State of West Bengal and others.”

Insofar as the third submission regarding findings in the criminal trial prevailing over the present issue being examined in the departmental proceeding, he has drawn attention of the court towards the enquiry report. Specific reference is made to the statement of one S.I., Panchanan Sarbobhoum, P.W.7 and statement of one Sri Subhash Dom, Reserve Inspector, Bankura, P.W.9.

Referring to the statement of P.W.9, it is pointed out that the said P.W. referring to Exhibit-7 supported the allegation that the petitioner earlier served on Muster Role in the Home Guard since 1975, and his date of birth is shown therein as 1955. Whereas it is not in dispute that the petitioner has obtained the present employment claiming date of birth as 16.12.1968.

The statement of P.W.9 was recorded in the petitioner’s presence in the enquiry and it is obvious from the enquiry report that the petitioner chose not to cross-examine the said P.W.9.

Insofar as the submission regarding the charge memo not being issued in accordance with rule or being vitiated on account of any input being derived from the S.P., Birbhum, we find no force in this submission. Neither Regulation 858(2) nor Regulation 861(O) supports the petitioner’s contention. The relevant provision for issuance of a charge memo is Regulation 861(b), which reads as follows:

“The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated in writing to the person charged within a reasonable time together with a statement of allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case.”

We find no such limitation imposed on the disciplinary authority to take into consideration the material which is relevant. The rule further has to be read keeping in background the fact that the petitioner was initially appointed in Bankura. The charge, therefore, arose in Bankura where it was alleged that he obtained the employment by misrepresenting his date of birth, and relying on ingenuine documents. It is under such circumstance, that the S.P., Bankura, sent a communication containing a draft charges in this regard to the S.P., Birbhum, since the petitioner was then posted under the S.P., Birbhum. Therefore, the charge was framed and served by the S.P., Birbhum.

The facts do not reveal any procedural lacuna. Therefore, there is no merit in the reliance placed by the petitioner in the two judgments in the case of A. K. Roy (supra) and in the case of Joint Action Committee of Air Line Pilots’ Association of India (ALPAI) (supra). These judgments lay down an undeniable proposition of law, but are not applicable to the facts and circumstances of the present case.

As regards the other two submissions regarding delay and the findings in the criminal trial, we find that the petitioner himself obtained a stay order in a proceeding before the High Court and Tribunal, which was continuing. It, therefore, does not lie in the mouth of the petitioner to raise an issue of delay. The other issue regarding the findings in the criminal trial prevailing over the present proceedings are equally devoid of substance for the simple reason that the law by now is settled that the departmental proceeding is independent of an enquiry in a criminal trial, since consideration of the allegations are not on a common standard of evidence. Whereas the Criminal Trial is guided by strict rules of evidence to bring home the charges beyond reasonable doubt; the departmental proceeding is conducted for bringing home the charges based on a preponderance of probability.

Before such a submission can be advanced regarding the findings in the criminal trial prevailing over the enquiry, it would be required to be shown, at least that the charges are identical and that the material including evidence and witnesses relied upon are one and the same in both proceedings which is not the case here in this proceeding.

We also consider it apposite to refer to earlier judgments rendered by the Apex Court as in the case of Corporation of Nagpur City v. Ramchandra, reported in (1981) 2 SCC 714 wherein the Apex Court held that normally in case of an Honourable acquittal and complete exoneration of charges it would not be expedient to continue a departmental enquiry on the very same charges or grounds or evidence. The Apex Court further added that merely because the accused is acquitted, the power of the authority concerned to continue the departmental enquiry is not taken away. The discretion is not, in any way, fettered. The judgment was taken note of by the Apex Court in the case of G.M. Tank v. State of Gujarat, reported in (2006) 5 SCC 446 wherein the Apex Court found that the witnesses were examined in the criminal case and based on such examination the criminal court came to the conclusion that the guilt could not be proved beyond any reasonable doubt. Thus, acquittal was recorded holding the charge not proved. The acquittal is preceded by a regular trial and on hot contest. Considering such facts, the apex court found that it would be unjust, unfair and rather oppressive to allow the finding regarding charges being proved in the departmental proceeding to stand. The Apex Court further noticed in the said judgment that evidence in the departmental as well as criminal proceeding were the same without there being any iota of difference. It thus, held that the distinction between the departmental and criminal proceeding on the basis of burden of proof was not applicable in that case. Considering earlier decision of the Apex Court in the case of M. Paul Anthony v. Bharat Gold Mines Ltd., reported in (1999) 3 SCC 679, the apex court proceeded to hold that the appellant therein should succeed.

The facts and circumstances, as noticed above, are at variance in the present case. It is submitted by the petitioner’s advocate that material was not produced in the criminal trial. In the present case, we have seen reliance placed on material and statement of witnesses in the departmental proceeding, as noted above. Therefore, it is not a case wherein the evidence considered in the departmental proceeding is the same as was considered in the Criminal Trial. We have also noted that the petitioner choose not to cross-examine the witness who supported the charge with reference to material. Therefore, acquittal in the criminal case, in our opinion is not relevant in the present case.

Having regard to the limited scope of judicial review in scrutiny of a departmental proceeding, we find that the writ petitioner did not make out a case of any procedural infirmity, or mala fide. There is no material to suggest that the decision in the departmental proceeding is influenced by irrelevant or extraneous consideration. The findings are recorded based on evidence document/s supported by statement of the witness. The petitioner was afforded opportunity in compliance with principles of natural justice and fairness. We also do not find the conclusion of the disciplinary authority to be in any way, perverse. Thus, there is no occasion for this court to enter into a re-appreciation of the evidence or consideration of the conclusions on the touchstone of adequacy of evidence, as if, we are sitting in appeal over decision of the departmental authorities.

It is settled that the scope of judicial review is confined to the decision making process, and not the decision itself.

Considering the above facts and circumstances, we are of the view that the petitioner’s case also does not fall within the limited scope of judicial review under Article 226 of the Constitution of India as regards departmental proceedings. We find force in the submission advanced by the learned AGP relying upon the judgment of the Apex Court in the case of Union of India and others Vs. P. Gunasekaran reported in (2015) 2 SCC 610, wherein the Apex Court has summarized the scope of exercise of judicial review in such matters. Paragraphs 12 and 13 are relevant in this regard and are extracted hereinbelow:

“12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricioius that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

Under Articles 226/227 of the Constitution of India, the High Court shall not:

(i) reappreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in case of same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findings can be based.

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its conscience.”

In view of consideration above, no case is made out for invocation of writ jurisdiction within the limited confines of judicial review under Article 226 of the Constitution of India.

The writ petition is, thus, dismissed.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all necessary formalities.