Sri Sankar Roy vs West Bengal State Electricity Board and Others

Tapabrata Chakraborty, J.—This writ application had been preferred challenging an order dated 22nd April, 2006 passed by the respondent no. 2 and the order dated 14.09.2006 passed by the Appellate Authority. In the writ application, it had been averred, inter alia, that the petitioner joined the West Bengal State Electricity Board on 1st February, 1974 as an unskilled worker Linesman and that he was promoted to the post of H.G. Senior Linesman with effect from 1st July, 2001. Subsequent thereto, on 11th June, 2003 the petitioner in the usual course of discharging his duties accompanied by his superior officer, Sri Utpal Kumar Biswas, Station Superintendent of Birpara Group Electric Supply went to a Medical Shop, namely M/s. Gupta Medical Hall situated at Birpara Market near the Bus Stand for inspection of the commercial meter bearing No. BRP/S/37 installed thereat in the name of Late Hardwan Sah for supply of electricity to the said Medical Shop, presently run by Sri Goutam Prasan Sah, the eldest son of Late Hardwan Sah and upon inspection, it transpired that the said meter was defective and the Station Superintendent, who accompanied the petitioner, informed the Medical Shop owner that the said meter would have to be replaced which was objected to by the said shop owner. The petitioner was directed by the said Station Superintendent, Sri Utpal Kumar Biswas to disconnect electricity supply to the said meter till the meter is replaced and acting on the instruction of the said Station Superintendent the said meter was disconnected by the petitioner. On the same date in the afternoon at about 3.30 p.m., the petitioner was directed by his superior officer, namely, Sri Utpal Kumar Biswas to replace the old defective meter of M/s. Gupta Medical Hall and pursuant thereto, the petitioner replaced the defective electric meter by a new electric meter bearing No. BRP/S/37 and restored electric supply to the said premises of the Medical Hall and deposited the old defective meter in the office. Surprisingly thereafter an inquiry was commenced against him on an allegation of taking bribe and by an order no. 133 dated 4th September, 2003 the petitioner was placed under suspension. Subsequent thereto, the petitioner was issued a Charge Sheet dated 1st January, 2004 and upon perusal of the same, the petitioner by a representation dated 1st March, 2004 prayed for supply of the copies of the documents mentioned in the said representation and the same was replied to the concerned authority by a memorandum dated 24th March, 2004 and the petitioner thereafter filed a reply to the Charge Sheet on 29th March, 2004. The inquiry commenced and the petitioner participated in the same. In connection with the said inquiry, the petitioner submitted a written argument on 21st March, 2005 and the inquiry report was ultimately communicated to the petitioner filed memorandum dated 23rd February, 2005. The petitioner replied to the said inquiry report. Subsequent thereto, the second show-cause notice was issued to the petitioner filed vide memorandum dated 28th September, 2005 proposing, inter alia, a punishment towards reduction of four increments from the present pay with cumulative effect and upon consideration of the petitioner''s reply to the said second show-cause notice, the Disciplinary Authority issued a memorandum dated 22nd April, 2006 imposing a lesser punishment upon the petitioner which runs as follows:-

I) Reduction of 3 (three) annual increments with cumulative effect, i.e. this deprivation shall continue till he is in the service of the Board.

II) He will earn his next increment on completion of one year''s satisfactory service from the date of effect of order.

III) The period of suspension in respect of Sri Roy is hereby confirmed. He will not get anything beyond the subsistence allowances payable to him during the suspension period.

Aggrieved by the said order of the Disciplinary Authority the petitioner preferred a statutory appeal on 9th June, 2006 and the same was disposed of by an order dated 14th September, 2006.

Mr. Majumder, learned advocate appearing for the petitioner drew the attention of this Court to page 22 of the said inquiry report wherein it had been inter alia observed as follows:-

From the Prosecution and Defence evidence and the argument, one thing is clear (1) the line was cut which was irregular (2) the replacement of the meter was not forthwith. (3) Sri Utpal Biswas did not take any action or call for written explanation from Sri Sankar Roy indicating his grievance (4) both the charged employee tried to shift the burden on the other (5) The Prosecution Witnesses are all local people and belong to two major political parties, indicating thereby that it is not an off shoot of any political rivalry.

Mr. Majumder submits that the said findings arrived at by the Inquiring Authority do not stand fortified through appropriate reasons and that the findings are absolutely perverse and that the allegation of taking bribe had not been proved beyond doubt and that the said allegation of taking bribe was made with a malafide motive to implicate the petitioner though the petitioner was not at all present at M/s. Gupta Medical Hall on 16th June, 2003 and that the evidence given by the brother of the complainant and the neighbour of the complainant would reveal that there were no witnesses to the alleged monetary transaction.

Mr. Majumder further submits that the charge pertaining to the petitioner''s leave application dated 18th July, 2003 supported by a Medical Certificate dated 16th July, 2003 and the observation to the effect that the said Medical Certificate is totally false and fabricated does not stand supported through the deposition of the prosecution witnesses.

Mr. Majumder further submits that the Disciplinary Authority had illegally taken into consideration the past service of the petitioner inasmuch as there was neither any charge nor any imputation pertaining to such past service record of the petitioner.

Assailing the order of the Appellate Authority, Mr. Majumder submits that the said authority had neglected to consider the evidence adduced by the different witnesses in the proper prospective and that it erred in holding that the matter of acceptance of bribe by the petitioner from PW3 had been established from the deposition of PW1, PW4, PW5, PW6, PW7, PW8, PW9, PW10, PW11 and PW14.

Mr. Majumder further submits that the Appellate Authority did not take into consideration the contents of the appeal petition prior to disposal of the appeal and such infirmity maligns the said order of the Appellate Authority.

Mr. Bera, learned advocate appearing for the respondents, submits that it is a well settled proposition of law that the power of the Writ Court to interfere with disciplinary action is limited and that the Writ Court does not, in exercise of its power of judicial review, reappraise the evidence and that the Writ Court ordinarily does not sit in appeal over orders of Disciplinary Authority and the Appellate Authority. Mr. Bera further submits that the findings in disciplinary proceedings also cannot be interfered in exercise of the power of judicial review only because two views are possible and the Writ Court prefers the other view. According to him, an order of punishment is not interfered with, unless it is shockingly disproportionate to the gravity of the misconduct. Mr. Bera submits that the most important witness of the prosecution was Goutam Kumar Bagchi, who has been examined as PW1 and the said Mr. Bagchi is an officer of WBSEDCL and on receipt of the complaint he went to the locale and inquired into the matter and collected evidence from the local people and also obtained a statement from the petitioner. Such inquiry report was duly filed and exhibited and proved by the said officer. Mr. Bera further submits that the Medical Certificate annexed by the petitioner to his leave application was stated to have not been issued by M.K. Dey, who in course of his deposition had categorically stated that the said Certificate was not in his handwriting and that the registration number shown in the same is also not correct. Mr. Bera in reply to the petitioner''s contention pertaining to the inquiry report and particularly the observations made therein at page 22 and 23 of the same, submits that a perusal of the entire inquiry report would reveal that the evidence on record was minutely analysed and considered by the enquiry officer and on the rudiments of such materials on record, the enquiry officer arrived at the finding that the charges against the petitioner had been proved beyond the shadow of all reasonable doubts.

In reply to the petitioner''s contention to the effect that the Disciplinary Authority had illegally placed reliance upon past service records of the petitioner which is not within the ambit of the Charge Sheet, Mr. Bera submits that a perusal of the said order of the Disciplinary Authority dated 22nd April, 2006 would reveal that the Disciplinary Authority had agreed with the findings of the enquiry officer and for the purpose of modification and reduction of the proposed punishment, the disciplinary authority considered the past records of the petitioner and took a lenient view and modified the proposed punishment of reduction of three annual increments.

Replying to the contention of the petitioner to the effect of the order of the Appellate Authority was passed without taking into consideration the contents of the petitioner''s appeal petition, Mr. Bera submits that such contention is absolutely unfounded inasmuch as a perusal of the Appellate Authority would reveal that the grounds agitated in the appeal petition were duly considered and the conclusion of the Appellate Authority stands fortified through appropriate reasons.

Mr. Bera places reliance upon the judgment delivered by the Hon''ble Supreme Court in Indu Bhushan Dwivedi Vs. State of Jharkhand and Another, pertaining to the issue of consideration of past service records. And in the said judgment the Hon''ble Supreme Court at paragraph 28 had observed as follows:-

An analysis of the two judgments shows that while recommending or imposing punishment on an employee, who is found guilty of misconduct, the disciplinary/competent authority cannot consider his past adverse record or punishment without giving him an opportunity to explain his position and considering his explanation. However, such an opportunity is not required to be given if the final punishment is lesser than the proposed punishment.

Mr. Bera next places reliance upon a judgment delivered in the case of Union of India and Others Versus Manab Kumar Guha, pertaining to perversity, and draws the attention of this Court to paragraph 13 of the said judgment which runs as follows:-

It is well settled that the High Court while exercising the power of judicial review from the order of the disciplinary authority does not act as a court of appeal and appraise evidence. It interferes with the finding of the enquiry officer only when the finding is found to be perverse. We are of the opinion that the Division Bench of the High Court erred in setting aside the order of the learned Single Judge and quashing the order of compulsory retirement. The finding recorded by the enquiry officer is based on the materials on record and on proper appreciation of evidence which cannot be said to be perverse calling for interference by the High Court in exercise of its power of judicial review.

Mr. Bera also relies upon a judgment delivered by the Hon''ble Supreme Court in the case of The General Manager (P) Punjab and Sind Bank and Others Vs. Daya Singh, draws the attention of this Court to paragraphs 24 and 25 of the said judgment which runs as follows:-

Absence of reasons in a disciplinary order would amount to denial of natural justice to the charge-sheeted employee. But the present case was certainly not one of that category. Once the charges were found to have been established, the High Court had no reason to interfere in the decision. Even though there was sufficient documentary evidence on record, the High Court has chosen to hold that the findings of the enquiry officer were perverse. A perverse finding is one which is based on no evidence or one that no reasonable person would arrive at. This has been held by this Court long back in Triveni Rubber & Plastics v. CCE. Unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration the finding cannot be said to be perverse. The legal position in this behalf has been recently reiterated in Arulvelu v. State. The decision of the High Court cannot therefore be sustained.

As held in T.N.C.S. Corpn. Ltd. v. K. Meerabai the scope of judicial review for the High Court in departmental disciplinary matters is limited. The observations of this Court in Bank of India v. Degala Suryanarayana are quire instructive: (SCC pp. 768-69, para 11)

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 mala fides 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 finding. 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 v. H.C. Goel the Constitution Bench has held: (AIR p. 370, para 23)

23.... 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.

I have heard the learned counsels appearing for the respective parties and I have considered the facts and circumstances of the case. I find that in the writ application the Charge Sheet, the inquiry report and the second show-cause notice had not been challenged and that there is also no specific ground in the said writ application assailing the same. The charge to the effect that the petitioner had connived with Sri Utpal Biswas could not be dislodged by the petitioner inasmuch as in the reply to the charge sheet, the petitioner himself had contended inter alia that the Sri Biswas himself resorted to self-inspection as well as giving warning to the consumer that the supply be suspended in case the meter is not replaced and that as decided and directed by the Station Superintendent, the old meter was replaced by new electronic meter followed by restoration of electric supply as 3.30 p.m./4.00 p.m. on 11.06.2003. Furthermore, a perusal of the inquiry report reveals that the said charge of connivance had been established through the deposition of the prosecution witnesses beyond the shadow of all reasonable doubts.

It stood corroborated through the deposition of the witnesses that the petitioner along with Sri Biswas, the Station Superintendent went to the Medical Shop and demanded bribe of Rs. 10,000/- from Sri Goutam Prasad Sah (PW3) and that on 11.06.2003 the said Goutam Prasad Sah made payment of the bribe amount of Rs. 7,000/- to the petitioner.

The petitioner sought to deny the charge of having submitted a false and fabricated medical certificate by stating inter alia that he had not been allowed to cross-examine M.K. Dey who had categorically deposed that the medical certificate (Exhibit-12), which was annexed by the petitioner to his leave application, was not in his own handwriting and that the said certificate was written in a letter pad which did not belong to him inasmuch as the particulars of his letter head are different and that the registration number in the said certificate was shown as 7787 though his registration number is 20661. The said M.K. Dey was cross-examined by the defence assistant of the petitioner and in course of such cross-examination the said M.K. Dey stated that he had never seen the petitioner and that the said medical certificate furnished by the petitioner in support of his medical leave is a fake one.

A perusal of the entire factual scenario reveals that the petitioner accompanied the Station Superintendent to the Medical Shop on 11.06.2003 and that on a purported plea that the electric meter was a defective one, the petitioner demanded bribe and that as the same was initially not paid, the meter connection was disconnected at about 12.00 noon and that there was a negotiation thereafter on 11th of June, 2003 itself and upon having received a payment of Rs. 7,000/-, the new electronic meter was installed and restoration was effected at about 3.30 p.m./4.00 p.m. on the same date. Such sequence of events had been established through evidence upon which any reasonable person acting reasonably would uphold the charges and that as such perversity as alleged by the petitioner, is not sustainable.

The petitioner sought to deny the charge to the effect that on 16th June, 2003 he went to the premises of Medical Shop and met Sri Goutam Prasad Sah and demanded the balance of Rs. 3,000/- of the bribe money by contending inter alia that he was on leave from 16th of June, 2003 and that his leave application stood supported by a certificate. But such plea does not stand substantiated inasmuch as the said certificate had been proved to be a fake one through the deposition of M.K. Dey.

The grounds agitated by the petitioner to the effect that the acceptance of bribe on his part was never proved beyond doubt and that the said allegation was made by Sri Goutam Prasad Sah out of personal enmity and grudge are absolutely unfounded inasmuch as the acceptance of bribe had in fact been admitted by the petitioner when he was ghearoed by the local people on 16th of June, 2003 and the petitioner made a desperate attempt to deny such fact by stating that he was not present on 16th of June, 2003 by placing reliance upon a leave application supported by a Certificate which was proved to be fake. Furthermore, Sri Goutam Prasad Sah and other shop owners lodged a FIR at Birpara Police Station on 16th June, 2003 itself intimating the incident which had occurred. On that date itself, that is, 16th June, 2003 after the incident, the wife of Sankar Roy submitted a leave application of the petitioner at Birpara Group Electric Office at about 4 p.m.

The ground agitated by the petitioner to the effect that the Appellate Authority order does not contain any reason and that the Appellate Authority had not considered the contents of the appeal petition, is absolutely unsustainable in law, inasmuch as a perusal of the said order would reveal that the Appellate Authority dealt with the grounds of challenge and had affirmed the order of the disciplinary authority giving sufficient reasons which clearly depict a proper application of unbiased mind by the said Appellate Authority.

The expression ''sufficiency of evidence'' postulates existence of some evidence which links the charged officer with the misconduct alleged against him and in the instant case the matter of acceptance of bribe and furnishing of fake Certificate by the petitioner stands established through the materials on record and upon proper appreciation of evidence. Furthermore the statement on the part of the petitioner to the effect that he was not present on 16th of June, 2003 also does not stand proved since the Medical Certificate in support of the leave application of the petitioner had been proved to be a fake one.

The scope of judicial review assailing any punishment in the departmental proceeding in the writ jurisdiction is very limited and the Writ Court''s jurisdiction is not an appellate jurisdiction to reappreciate the evidentiary value. This proposition stands fortified through the judgment delivered in the case of B.C. Chaturvedi Vs. Union of India and others,

In the backdrop of such observation and scrutiny of materials on record I find that no illegality and no procedural irregularity had been committed by the Inquiring Authority and the Disciplinary Authority in conducting the disciplinary proceedings and the order of the Appellate Authority is also a reasoned one and there is also no error in the decision making process, calling for any interference by the High Court in exercise of its power of judicial review.

The writ application accordingly stands dismissed.

In the facts of the present case, there will be no order as to costs. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.