Tarak Nath Sarkar vs Union of India & Ors

Partha Sarathi Chatterjee, J

The present writ petition has been preferred challenging the order dated 26th May, 2024 passed by the Appellate Authority and the order dated 31st March, 2024 passed by the Disciplinary Authority dismissing the petitioner from service.

The key facts that are essential for the effective adjudication of this case, are that in 1994, the petitioner was appointed as a constable in the Central Industrial Security Force (CISF). He was last posted at Netaji Subhas Dock (D Company) and subsequently at B Company, Kolkata Port Trust Unit. On 7th November 2002, at approximately 10:45/10:50 PM, the petitioner was detailed in the office of Gate No. 5 under the supervision of Sub-Inspector Kujur. The following morning, he was taken to the CISF office, where the Assistant-in-Charge of the office lodged an FIR with the Officer-in-Charge of the South Post Police Station, Kolkata.

On 9th November 2002, the petitioner was produced in court and remanded to police custody until 14th November 2002. He was granted bail on 24th December 2002. However, he was ultimately released on 27th December 2002.

On 1st January 2023, the petitioner was served a memorandum of charge, dated 19th December 2002, along with the articles of charge. The allegations levelled against the petitioner are as follows:

a) On  the  intervening  night  of  7th  November,  2002  and  8th November, 2002, at approximately 1:30 AM, while the petitioner was off-duty, he unauthorizedly scaled the boundary wall, which constitutes gross misconduct, indiscipline, and a violation of the lawful orders of the unit. As an individual not on duty, he was not permitted to enter the port area.

b) On 8th November 2002, at about 1:30 AM, the petitioner was found carrying two bundles of raw silk, unauthorizedly and illegally, from the NSD port area. He was apprehended with the material while being chased and searched by CISF personnel on duty. This act is considered a violation of his conduct as a member of the disciplinary force and a breach of his duty.

By a communication dated 9th January 2023, the petitioner requested the Commandant of the CISF unit at KPT, Kolkata, to defer the disciplinary proceedings until the criminal proceedings were concluded. However, his request went unaddressed, which led the petitioner to file a writ petition (WP No. 913 (W) of 2003) before this Hon'ble Court. In an interlocutory order passed in that writ petition, the petitioner was directed to submit a reply to the charge-sheet. However, the writ petition was ultimately dismissed, and an intra-court appeal, FMAT No. 2194 of 2023 preferred challenging the order dated 26th August 2023 passed in that writ petition, was also dismissed.

The record reveals that by an order dated 11th September 2003, the Commandant decided to proceed with the departmental enquiry in view of the dismissal of writ petition WP No. 913 (W) of 2003.

The petitioner filed his reply to the charge-sheet, denying the charges levelled against him and claiming that he was made a victim of circumstances. Additionally, the defence raised in his reply states that, on 7th November, 2002, after completing his duty until 2:00 p.m., the petitioner returned to his quarter. There, the wife of SI/Exe, Mr. Midda informed him that someone from Barrackpore had come and left an urgent message with Mr. Midda for him. Upon receiving this information, the petitioner, being anxious to meet Mr. Midda, proceeded to do so. Mr. Midda was on duty at the gate from 10:00 p.m. to 9:00 a.m. (night shift). However, he was unable to meet Mr. Midda. He then went to NS Dock Gate No. 3 and requested the personnel on duty at the gate to allow him entry on sympathetic grounds. While proceeding towards Gate No. 5, he encountered SI Kujur, who was on flying duty and riding a bicycle. SI Kujur was shouting that someone was fleeing. As the petitioner was heading toward Gate No. 5, both SI Midda and SI Kujur approached him and alleged that the person who had fled had come with him to take the raw silk. The petitioner tried his best to explain to Mr. Kujur that he was innocent, but Mr. Kujur refused to accept his explanation and apprehended him.

During the course of the enquiry, five witnesses were examined as prosecution witnesses, identified as PW1, PW3, PW4, PW5, and PW6. SI Gujar, who was cited as PW-2 did not attend the enquiry. Additionally, two witnesses, M. L. Midda and Mr. Murmu, were examined as court witnesses, designated as CW1 and CW2. Certain documents were also presented by the management. The petitioner participated in the enquiry proceedings and was given the opportunity to cross-examine the prosecution witnesses, which the record shows he availed himself of. After the prosecution evidence was recorded, the statement of witnesses was supplied to the petitioner and he was given an opportunity to submit a defence statement. However, the petitioner stated that the copy of his reply dated 18th November, 2003, which he had submitted earlier, should be considered his defence statement.

After assessing the evidence and considering the defence plea raised by the petitioner, the Enquiry Officer concluded that the charges levelled against the petitioner had been proven beyond doubt. Subsequently, the Disciplinary Authority agreed with the Enquiry Officer's findings and imposed a penalty of removal from service, effective immediately, by an order dated 31st March, 2024. The petitioner filed a statutory appeal, but it was unsuccessful. Hence, this writ petition.

The record reveals that, after hearing the learned advocates representing the respective parties, a co-ordinate Bench of this Court decided that the matter should be resolved after the exchange of affidavits. Accordingly, affidavits in response to the writ petition were invited from the respondents. Pursuant to this direction, the parties exchanged their affidavits.

The petitioner filed a supplementary affidavit to bring on record the subsequent event of his acquittal by the criminal court, along with the judgment of acquittal.

Mr. Chowdhury, learned advocate representing the petitioner, argued that the entire disciplinary proceeding was conducted and concluded in violation of settled legal principles and in flagrant disregard of the principles of natural justice, with a pre-conceived mindset. He claimed that the petitioner’s request to recall certain witnesses was denied, and several relevant documents were not provided to him. He further submitted that the Disciplinary Authority had mechanically accepted the findings of the Enquiry Officer without independently evaluating the evidence and materials on record. He argued that both the findings of the Enquiry Officer and the final order of punishment were perverse, as they were based on no evidence.

He also submitted that the Appellate Authority disposed of the appeal by issuing a cryptic order, without addressing the issues raised by the petitioner. He contended that, in light of the judgment of acquittal, the charge-sheet, the findings of the Enquiry Officer, the dismissal order, and the Appellate Authority's order should all be set aside. He prayed that a direction be issued to the respondents to reinstate the petitioner with all consequential benefits. To buttress his arguments he relied upon certain decision reported at (2010) 2 SCC 772 (State of Uttar Pradesh and Ors. Vs. Saroj Kumar Singha) and (2005) 0 Supreme (Mad) 411 (State of Tamil Nadu & Anr. Vs. M. Jayapal & Ors.) and (2019) 0 Supreme (Ker) 901 (State of Kerala Represented by Principal Secretary to Government Vs. Krishnadas, S/o. Periyarswamy) and (1993) 3 Supreme 376 (Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. And Anr.) and (2006) 3 Supreme 393 (M. V. Bijlani Vs. Union of India & Ors.) and (2010) 7 Supreme 970 (Mohd. Yunus Khan Vs. State of U.P. & Ors.) and (2012) 3 Supreme 20 (Vijay Singh Vs. State of U.P. and Ors.) and (1991) 2 SCC 335 (Babu Lal Vs. The State of Haryana & Ors.) and (1995) 6 SCC 157 (Ram Kishan Vs. Union of India & Ors.) and (1986) 3 SCC 454 (Sawai Singh Vs. State of Rajasthan) and one unreported judgment delivered by a co-ordinate bench of the Calcutta High Court in WPA No. 3523 of 2007 (Uttam Kumar Thakur Vs. Calcutta State Transport Corporation & Ors.).

Mr. Chatterjee, learned advocate for the respondents, argued that the petitioner unlawfully entered the port area by scaling the boundary wall, accompanied by his accomplice. They were chased by Sub-Inspector S. Kujur, and while the petitioner was apprehended, his accomplice managed to escape. Subsequently, a charge-sheet was served on the petitioner under Rule 36 of the CISF Rules, 2001, and he was instructed to submit a reply. However, the petitioner filed a writ petition, which was decided against him. The petitioner then filed an intra-court appeal, but that too was dismissed.

However, after the dismissal of the appeal, the petitioner submitted his reply to the charge-sheet. The petitioner participated in the enquiry proceedings and was given all opportunities to defend himself. After assessing the evidence and considering the petitioner’s defence, the Enquiry Officer concluded that the charges against the petitioner were proven. The Disciplinary Authority, after completing all formalities, issued an order imposing the penalty of removal from service. The petitioner filed a statutory appeal, but since it was found to be without merit, it was dismissed. The petitioner did not file a revision. Therefore, having not exhausted the alternative remedy, the petitioner filed this writ petition, which, according to the respondents, cannot be entertained for this reason.

Mr. Chatterjee, drawing my attention to certain portions of the evidence recorded during the enquiry proceedings, argued that convincing evidence was available to establish the petitioner’s guilt regarding the charges brought against him. The court witness, M.L. Midda, testified that the petitioner had no valid reason to be at the gate at the material time. He stated that the petitioner was apprehended, and upon search, incriminating materials were recovered. Mr. Chatterjee argued that there was no flaw in the decision-making process. He further submitted that, this is not a case where the charge-sheet, the order of removal from service, and the order of the Appellate Authority should be set aside, due to effect of the petitioner’s acquittal in criminal case.

Analysis:

The High Court’s decision not to entertain a writ petition due to the availability of an alternative remedy is a self-imposed restriction, based on considerations of policy, convenience, and discretion, rather than a strict rule of law or jurisdiction. There is no absolute prohibition on exercising writ jurisdiction. Whether it will be invoked depends on the particular facts and circumstances of the case. It is a well-established legal principle that, even when an alternative remedy exists, a writ petition may still be entertained if it seeks to enforce Fundamental Rights, addresses violations of natural justice, involves an order or proceeding that is entirely outside jurisdiction, or challenges the constitutionality of a statute.

It is apposite to refer an authoritative pronouncement made in case of Union of India –vs- R. Reddappa reported in (1993) 4 SCC 269 wherein it was ruled that once the Court is satisfied of injustice and/or arbitrariness, then the restriction, whether self-imposed or statutory goes removed and no rule or technicality on exercise of power can come in the way of rendering justice.

In the present case, the petitioner contends that the disciplinary proceedings were conducted and concluded in clear violation of the principles of natural justice, driven by a pre-determined bias. The writ petition further asserts that, in blatant disregard of established legal principles, the authority unlawfully refused to revoke the dismissal order, despite the petitioner’s honourable acquittal by a competent court following a comprehensive trial.

The principle of fair play applies to administrative, judicial, and quasi-judicial functions. When an authority exercises quasi-judicial powers, it must act fairly, impartially, and without bias or preconceptions. If the court finds that the authority has acted arbitrarily, with a closed mind, and in violation of natural justice or statutory rules, it can exercise judicial review to ensure justice is served.

While judicial review is generally limited to the decision-making process, a decision that is perverse, irrational, or grossly disproportionate falls within its scope. Although a writ court cannot sit in appeal over the decision of the disciplinary authority or re-evaluate the evidence recorded during the inquiry, it may examine the evidence to assess whether the allegation that the decision is based on no evidence is justified.

In this case, as previously mentioned, the petitioner was given an opportunity to respond to the charge sheet. He actively participated in the enquiry proceedings, cross-examining both the prosecution and court witnesses. Furthermore, the petitioner was allowed to submit a written statement of defense. However, through a letter, he requested that his reply be treated as his written statement of defense by the Enquiry Officer. The finding of the Enquiry Officer was provided to the petitioner. Both the Disciplinary Authority and the Appellate Authority issued reasoned orders. While the petitioner claims that his request to recall witnesses was denied and that he was not provided with the relevant documents to defend himself, he has not specified which witnesses he sought to recall or which documents he believes were withheld. As such, the petitioner has failed to identify any specific flaws or legal shortcomings in the decision-making process.

The petitioner has asserted that the Enquiry Officer's report is based on no evidence, and that the Disciplinary Authority, without independently evaluating the evidence, accepted the Enquiry Officer's findings. Therefore, it is necessary to examine whether the petitioner's claim holds any merit.

PW1, SI Kujur, testified that at the relevant time, the petitioner was apprehended. He stated that the petitioner had entered the port area by scaling the boundary wall to commit theft. The stolen material, identified as raw silk, was recovered from the petitioner’s possession. Following this, an FIR was lodged, and the petitioner, along with the FIR, seizure list, and seized articles, was handed over to the jurisdictional police.

PW3 and PW4 corroborated the testimony of PW1, stating that the petitioner was apprehended and on search, bundles of raw silk were recovered. PW5 testified that upon receiving a telephonic message from SI Kujur about the petitioner’s apprehension with raw silk, he arrived at the scene, where SI Kujur briefed him about the entire incident. PW6 further testified that upon receiving a telephonic message that a criminal had been apprehended while attempting to escape with raw silk, he rushed to gate no. 5. There, he observed SI Kujur and constable Desh Roy, and the apprehended criminal was identified. PW6 then ordered a search of the Bussera line area, where additional incriminating materials were seized. He explained that the petitioner and his associate had gone to gate no. 4, packed the raw silk, and were attempting to leave for the Bussera jungle area. However, when they were crossing the road between gate no. 4 and the Bussera line, SI Kujur noticed them, shouted “chor chor,” (thief and thief) and the petitioner fled, leaving behind the stolen items. The other individuals managed to escape by scaling the wall, but the petitioner was apprehended.

Mr. Midda, in his deposition stated that on 7.11.2002, no one from Barrackpore had come to his quarter or left any message involving the petitioner. He claimed that he met the petitioner in front of NSD gate no. 4, accompanied by SI Kujur, SI Gujar, and SI Tamash. Head Constable Mr. Murmu testified that during his shift at gate no. 3 from 21:00 to 05:00 hours, the petitioner had not been at NSD gate no. 3. He stated that Constable Sukram did not allow the petitioner to enter because he was present at the gate throughout the night.

Therefore, Mr. Midda’s testimony falsifies the petitioner’s defense that he went to meet Midda after receiving a message. As a result, the petitioner failed to provide a credible explanation for his presence at the scene of the incident. PW-1, PW-3, and PW-4 consistently testified that SI Kujur observed the petitioner and his associate as they crossed the road between gate no. 4 and the Bussera line with certain articles. SI Kujur chased them, successfully apprehending the petitioner, while the others managed to escape. Upon conducting a search, four bundles of raw silk were recovered. Given this consistent testimony and the evidence presented, the petitioner’s claim that the Enquiry Officer’s findings are perverse is without merit.

The Disciplinary Authority outlined that the petitioner was given the opportunity to respond to the charge-sheet. He was also granted the chance to cross-examine the witnesses, and the findings of the Enquiry Officer were shared with him. The Disciplinary Authority thoroughly evaluated the evidence and issued a reasoned order. Similarly, the Appellate Authority also passed a reasoned order.

Mr. Chowdhury argued that, in light of the petitioner’s acquittal, the charge sheet, the findings of the Enquiry Officer, and the orders of the Disciplinary Authority and Appellate Authority should be set aside. In this regard, the decision, reported at (2024) 1 SCC 175 (Ram Lal vs. State of Rajasthan & Ors.) may be referred to. In that case, both the criminal and disciplinary proceedings were based on a similar set of facts, with the same witnesses testifying in both proceedings. The Hon'ble Court, after considering the nature of the evidence presented by the prosecution and the management, held that, in view of the acquittal, the charge sheet and the final order of punishment could not stand.

In the present case, during the criminal proceedings, only two witnesses were examined. The Court observed that the prosecution failed to produce key witnesses, including the complainant who lodged the FIR, the person who found the accused in possession of the stolen articles, the individual in charge of the NSD gate, and even the Investigating Officer of the criminal case. PW-1 was a witness to the re-seizure of the stolen articles, and PW-2 re-seized the articles. As a result, the individuals who were familiar with the alleged incident of the petitioner’s apprehension and the seizure of the stolen articles were not examined by the prosecution, which led to the petitioner’s acquittal. Therefore, considering the nature of the evidence presented by the prosecution during the criminal trial, I am of the considered view that the judgment in Ram Lal (supra) is not applicable in this case.

Now, let me address the decisions relied upon by the petitioner. In the judgment of Sawai Singh (supra), it was held that the application of the principles of natural justice must align with the context of the specific Act and the subject matter of the case. There is no rigid rule regarding the application of natural justice; it depends on the facts, circumstances, and nature of the inquiry. In the judgment of M.V. Bijlani (supra), it was laid down that the Enquiry Officer, performing a quasi-judicial function, must, after analyzing the documents and evidence, conclude whether there is a preponderance of probability to prove the charges based on the materials on record. In the case of Vijaya Singh (supra), it was held that punishment not prescribed under the rules cannot be imposed as a result of disciplinary proceedings. When performing quasi-judicial functions, the authority is bound to follow statutory rules and cannot disregard them. The judgment in Mohd. Yunus Khan (supra) emphasized that a delinquent employee should be informed that their past conduct may be taken into account when determining the punishment. In Saroj Kumar Sinha (supra), the established principle that the Enquiry Officer should act impartially was reiterated. It was further held that departmental inquiries must be conducted in accordance with the rules of natural justice. In that case, no oral evidence was examined, and the documents were not properly proven; however, the Enquiry Officer still concluded that the charges were substantiated. The remaining judgments were cited to address the issue of the effect of acquittal in a criminal case on disciplinary proceedings. Undeniably, there is no scintilla of doubt about the binding nature of the precedents set in those judgments, they are distinguishable from the facts of the present case.

Consequently, based on the discussions made in the preceding paragraphs, I am of the considered opinion that the petitioner’s contention lacks merit. The petitioner has failed to present a strong case or provide any material sufficient to persuade me to intervene in the present writ petition. Therefore, the writ petition is, thus, dismissed. However, there shall be no order as to costs.