T.K. Chaudhuri vs Union of India (UOI)

K. Sampath, J.—The Petitioner in all the three Writ Petitions is the same. The first and the second Respondents are the same in the first two Writ Petitions. The third Respondent in the first Writ Petition is the fourth Respondent in the second Writ Petition.

W.P. No. 15071/88 has been filed for the issue of a writ of certiorarified mandamus calling for the records relating to the enquiry in proceedings V-15014/19/87(L&R) dated 23.9.1988 from the Respondents and quash the order of the first Respondent dated 23.9.1988 as illegal and consequently direct the first Respondent to change the Enquiry Officer and hold the enquiry afresh at a place other than Seetalpur and Sidhabari.

The second Writ Petition W.P. No. 5601/89 is for the issue of a Writ of certiorari calling for the concerned records from Respondents 1 to 3 relating to the memo No. V-15014/6/87(L&R) dated 10.2.1989 of the first Respondent and quash the said memo.

The third Writ Petition W.P. No. 12213/90 is for the issue of a writ of certiorari calling for the concerned records in No. E-28014/14/90 Pers.II/1069 and quash the order dated 29.6.1990 of the second Respondent.

As the Writ Petitions relate to the same individual in respect of events that happened during his service with the Central Industrial Security Force (hereinafter referred to as CISF) there is bound to be overlapping of dates and events in the narration that follows. The Writ Petitioner joined service as Assistant Security Inspector at Durgapur Steel Plant, West Bengal, on 10.6.1963. The third Respondent in W.P. No. 15071/88 also joined in the same capacity. In June, 1967, the Writ Petitioner was elected as Joint Secretary of Hindustan Steel Security Force Association. There was a rival union started in 1968 in which the third Respondent was an active member. On 10.3.1969 Central Industrial Security Force came into effect and on 1.2.1970, the third Respondent left Durgapur and joined the said Force as Inspector at BSF Academy at Tenkanpur, Madhya Pradesh. On 13.8.1970 the Writ Petitioner opted to join CISF and he was appointed as Inspector and joined at BSF, Jullunder, Punjab. He was asked to undergo training for three months at the Police Training College, Phillaur, Punjab. By that time, the third Respondent had already completed his training and he was sent as Instructor to Phillaur. On 15.6.1983, CISF was converted into an. Armed Force. In July, 1983, all the Officers of CISF were sent to Delhi for a short course. The Writ Petitioner was in Delhi and the third Respondent also was in Delhi. Ever since, the third Respondent joined as Instructor in Phillaur, he started humiliating the Writ Petitioner before other trainees and Officers and even went to the extent of preferring false complaints against the Writ Petitioner besides indulging in rebuking him for nothing in the classes. He carried this grudge to Delhi and during this short course, the third Respondent one day called the Writ Petitioner and told him in the presence of others that in a short while he was going to become a Commandant and he would see that some action would be taken against the Writ Petitioner. On 3.2.1986, the Writ Petitioner was posted to Eastern Coal Field, Seetalpur, West Bengal, on temporary duty. On 15.6.1986, the Writ Petitioner was transferred to Madras to join the second Respondent''s office.

In August 1986, the third Respondent was posted as Commandant in Seetalpur. On 15.10.1986, a memo was issued by the Director General, CISF to the Writ Petitioner alleging several irregularities against the Writ Petitioner and calling for explanation from him. The Writ Petitioner submitted his explanation on 5.11.1986. After more than 1-1/2 years; a charge memo was served on 2.5.1988. The Writ Petitioner submitted his explanation on 15.5.1988. On 26.5.1988, the Writ Petitioner was informed that the third Respondent had been appointed as Enquiry Officer. On 1.7.1988 notice of enquiry on 6.7.1988 was received by the Writ Petitioner and the Venue was fixed at CISF Recruitment Centre, Sidhabari, West Bengal. At that time, the second Respondent DIG sent the Writ Petitioner as Board Member for recruitment of constables, Karnataka, and the Writ Petitioner sent telex in this regard. On 11.7.1988, the Writ Petitioner made a representation to the first Respondent to change the Enquiry Officer and also the Venue. On 15.7.1988, the Commandant, CISF Unit, Madras Port Trust, was informed about the representation of the Writ Petitioner seeking change of the Enquiry Officer. Notwithstanding this representation, ex parte enquiry was conducted on 6.7.1988, 19.7.1988, 23.7.1988 and 29.7.1988. On 1.8.1988, the Writ Petitioner sent a representation to the third Respondent not to proceed with the enquiry pending orders on his representation to the first Respondent. On 19.8.1988, there was a further representation given by the Petitioner to stay the enquiry proceedings and the same was stayed on 26.9.1988. But, on 23.9.1988 itself, the first Respondent had rejected the request of the Writ Petitioner to change the Enquiry Officer. But, this was received only on 2.12.1988 by the Writ Petitioner. On 16.11.1988, the third Respondent sent a telex message to the Writ Petitioner asking him to appear for the enquiry on or before 19.11.1988. On 19.11.1988, the Writ Petitioner sent a letter to the Enquiry Officer apprising him of the stay order dated 26.9.1988 and asking him not to proceed with the enquiry. On 19.11.1988 itself, a letter was received by the Writ Petitioner from the third Respondent to attend the enquiry. On 3.12.1988, there was a letter received from the Enquiry Officer stating that enquiry had been completed ex parte and asking the Writ Petitioner to submit his defence statement. The order of the first Respondent purported to have been issued on 23.9.1988 and received by the Writ Petitioner on 2.12.1988 refusing to change the Enquiry Officer has been challenged in the first Writ Petition.

A counter has been filed in the main Writ Petition justifying the appointment of the Enquiry Officer. It is also stated in the counter in the injunction petition that after coming to know that the Writ Petitioner had not received the copy of the order dated 23.9.1988 in time and that he was served with a copy only on 2.12.1988, the Enquiry Officer was duly informed vide letter dated 7/8-12-1988 from the office of the first Respondent that the enquiry held prior to 2.12.1988 may not be in accordance with rules and that he might consider the holding of the proceedings afresh after giving due notice to the Writ Petitioner. The counter further states that the Petitioner had chosen to make self-serving and false allegations with the sole aim of delaying the proceedings and had stooped to throw baseless, personal and malicious allegations against the Enquiry Officer. The Petitioner had been informed about the appointment of the third Respondent as the Enquiry Authority as early as 26.5.1988, but he had objected to the third Respondent being the Enquiry Officer only on 11.7.1988.

The learned Counsel for the Writ Petitioner contended that having regard to the misgivings entertained by the Writ Petitioner about the impartiality of the Enquiry Officer, the request of the Writ Petitioner for change of Enquiry Officer ought to have been granted. The only perceptible objection of the Respondents is that, the Petitioner know about the appointment of the third Respondent as Enquiry Officer even on 26.5.1988 and the objection was raised only on 11.7.1988.

Notice of enquiry fixed for 6.7.1988 was received by the Writ Petitioner on 1.7.1988. Within a reasonable time, he has raised his objections. The Writ Petitioner has been crying hoarse that right from the days of their joining the CISF, there was no love lost between the twosome and that several times, the third Respondent had held out threats against the Petitioner that he would give him trouble and finish his career.

It has been held by the Supreme Court in Indrani Bai (Smt) Vs. Union of India (UOI) and Others, that when a delinquent officer alleged bias against the Enquiry Officer and it was not taken notice of or ignored, then he had every reason to complain against the attitude to the superiors. In the Supreme Court case, the delinquent officer had right through entertained a doubt about the impartiality of the enquiry to be conducted by the Enquiry Officer. He made a representation at the earliest, requesting for change of the Enquiry Officer. The authorities did not accede to the request. The Supreme Court found that this was wrong and observed that the request of the delinquent officer to have the Enquiry Officer changed, ought to have been granted. There had been violation of the principles of natural justice and fair play offending Articles 14, 21 and 311(2) of the Constitution. In the present case, the superiors ought to have removed the third Respondent from being the Enquiry Officer and appointed somebody else in his stead, particularly in view of the reservations, the Writ Petitioner had about him. It appears that the authorities had been standing on some false prestige and taken an adamant attitude. There was absolutely no justification. In their own interest to bring the enquiry to an early end, the request of the Writ Petitioner for change of Enquiry Officer should have been conceded. There has been clear violation of principles of natural justice. The Writ Petitioner is entitled to succeed.

Let me now proceed to deal with the other two Writ Petition W.P. No. 5601/89. When the Writ Petitioner was Assistant Commandant, Namrup, he submitted his explanation on 7.6.1986 to a show cause notice dated 18.2.1986. Then on 10.2.1989, a show cause notice with regard to an alleged incident in the year 1983 was issued to the Writ Petitioner. On 26.2.1989, the Writ Petitioner denied the charges and requested for certain documents in order to refresh his memory, since the charges related to something alleged to have taken place in 1983-84 to enable him to give a detailed explanation. On 21.3.1989, the request for documents was rejected without assigning any reason and it was informed that the documents would be shown during enquiry. On 21.3.1989, a communication was received stating that the third Respondent therein had been appointed as Enquiry Officer and Chaudhuri, Assistant Commandant, had been appointed as Presenting officer. On 10.4.1989, there was representation given by the Writ Petitioner to the first Respondent to comply with the instructions issued by the Government bringing to his notice that with regard to the charge sheet a show cause notice dated 18.2.1986 was issued and after explanation, the matter was closed. Notice of enquiry was received by the Writ Petitioner on 19.4.1989 asking him to appear for enquiry on 24.4.1989 and 25.4.1989 in the office of Commandant, CISF Unit, Farakka, West Bengal. Inasmuch as the Writ Petitioner was refused to be given inspection of the documents, he was greatly prejudiced. The documents also were likely to be tampered with. The long delay in taking action had adversely affected his defence as has been laid down by this Court in V.S. Ramanarayanan v. Food Corporation of India 1984 II TLNJ 123. He was also handicapped that he did not know the whereabouts of his witnesses as between the memo dated 18.2.1986 and the present charge memo dated 10.2.1989. Certain material changes had been introduced in the allegations and they had been deliberately made to hold the Writ Petitioner guilty of the charges. The Writ Petition prayed for quashing of the charge memo.

A counter has been filed in the Writ Petition, stating inter alia as follows:

Rule 14 of CCS (CCA) Rules, 1965 did not contemplate supplying of copies of documents to the charged personnel immediately on request. The apprehension that in case the documents were not supplied immediately at his request, the same would be tampered with was baseless. Since no statement of defence was received from the Writ Petitioner within the stipulated period, the Disciplinary Authority decided to hold a regular departmental enquriy and for this purpose, appointed the third Respondent as Enquiry Officer and he had ample powers to issue notice dated 6.4.1989 directing the writ Petitioner to appear for enquiry. The letter dated 18.2.1986 was not a charge memo. Only the memo dated 10.2.1989 was the chargesheet and that was issued after the Disciplinary Authority was satisfied that a prima facie case existed against the Writ Petitioner. The purpose of the regular departmental enquiry was to find out the truth of the allegations and under the rules, elaborate procedure had been prescribed, which gave ample opportunity to the Writ Petitioner to put forth his defence to prove his innocence. The holding of the enquiry was a quasi-judicial function and it was held under the statutory rules and the Writ Petitioner ought not to have invoked the jurisdiction under Article 226 of the Constitution of India.

While these proceedings were pending, on 16.4.1980, a third chargesheet was issued stating that the Writ Petitioner failed to attend the meeting on 28.8.1989 called for by the Commander with regard to security arrangements for Bharat Bandh and that the Writ Petitioner abused the Deputy Commander and tried to assault him. On 29.4.1990, the Writ Petitioner submitted a letter denying the charges and asked for certain documents. Again, on 16.6.1990, the Writ Petitioner made a request to the Respondents to withdraw the charge memo. This was followed by an additional representation on 7.7.1990. In the meantime on 29.6.1990, the second Respondent passed orders purporting to be under Rule 56(J) compulsorily retiring the Writ Petitioner from service and on 7.7.1990, the Writ Petitioner was relieved from service. Questioning the compulsory retirement, the third Writ Petition has been filed.

The Respondents had sought to explain the compulsory retirement, by stating that the Review Committee decided that the Writ Petitioner was not fit to continue in service beyond 50 years. Both favourable and unfavourable reports were placed before the authorities and the authorities took a decision that the continuance in service of the Writ Petitioner was not conducive and the Writ Petitioner was rightly retired from service.

So far as the second Writ Petition is concerned, it is contended by the learned Counsel for the Writ Petitioner that there had been an enormous delay of eight years and even in the explanation, the delay had been mentioned and there was no preliminary enquiry conducted by the authorities. The learned Counsel also relied on the decision of the Supreme Court in Shri Kashinath Dikshita v. Union of India and Ors. 1996 II LLJ 468 and submitted that failure to furnish copies of the relevant documents and statement of witnesses would greatly prejudice the concerned employee and admittedly, the Writ Petitioner was refused to be furnished with copies of the documents required by him. The whole proceedings would have to go.

Mr. S. Udayakumar, learned Additional Central Government Standing Counsel appearing for the Respondents in W.P. No. 15071/88 and 5601/89, submitted that even at the show cause notice stage, the Writ Petitioner had attempted to stall the proceedings. If there was any flaw in the proceedings, he could complain later on and the complaint by the Writ Petitioner regarding non-furnishing of the documents was premature.

The Supreme Court in the decision already referred to in Shri Kashinath Dikshita''s case has held as follows:

When a Government servant is facing disciplinary proceedings, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, the concerned employee cannot prepare his defence, cross-examine the witnesses and point out the inconsistencies with a view to show that the allegations are incredible.

Because of long lapse of the time, the Supreme Court did not permit the State Government in that case to hold any fresh enquiry on the charges in question and directed the Government to treat the employee as having continued in service till the date of his superannuation in January 1983. The Supreme Court observed that the application of the employee requesting for true copies of the documents relating to the charges was unceremoniously rejected. It was also held that by making available the copies of the documents and statements, the disciplinary authority was not running any risk. There was nothing confidential or privilege in it. It was not even the case of the State that there was involved any consideration of security of State of privilege. It is to be stated that in that case, the disciplinary authority gave an opportunity to the employee to inspect the documents and take notes. In the present case, it does not appear that any such opportunity was given to the Writ Petitioner. I am clearly of the view that the stand of the Respondents was very unreasonable. They ought to have conceded the request of the Writ Petitioner for the supply of copies of the documents and enabled him to prepare his defence. The Writ Petitioner had been considerably prejudiced by reason of the conduct of the Respondents in refusing to give copies of documents. The ratio of the Supreme Court will squarelly apply to the present case and I have absolutely no hesitation in coming to the conclusion that the Respondents had not acted fairly towards the Writ Petitioners and having regard to the long delay in initiating proceedings and the further delay caused now and having regard to the ratio of the decision in V.S. Ramanarayanan v. Food Corporation of India (1984) TLNJ 123, I am inclined to quash the proceedings.

While these two proceedings were pending, the Respondents through their Review Committee decided that the Writ Petitioner was not fit to continue in service beyond 50 years and retired him from service with effect from 7.7.1980. The complaint of the Writ Petitioner in W.P. No. 12213/90 is that it is a non-speaking order and there was no public interest involved having given a charge memo and having their own apprehension that it would not be possible to substantiate the charges. The department had chosen to short-circuit the whole thing and relieved the Writ Petitioner of his job. There was no question of any public interest involved. The learned Counsel relied on the following decisions:

(1) Gur Pratap Singh Bedi Vs. State of Punjab and Another, .

(2) Baldev Raj Chadha Vs. Union of India (UOI) and Others, .

(3) D. Ramaswami Vs. State of Tamil Nadu, .

(4) J.D. Srivastava Vs. State of M.P. and Others, and

(5) Baldev Raj, Ex-Constable Vs. State of Punjab and Others, .

Mr. K. Ilias Ali, learned Additional Central Government Standing Counsel appearing for the Respondents in W.P. No. 12213/90, relied on the decision of the Supreme Court in C.D. Ailawadi v. Union of India and Ors. AIR 1990 SC 1004. The files have also been made available by the learned Additional Central Government Standing Counsel.

From the chronology of events it would be clear that the Writ Petitioner had been considered to be a trouble maker by the department. His genuine grievances and his bona fide requirements were refused to be taken note of by the powers that be. It is not seen from the records available that in dispensing with the services of the Writ Petitioner any public interest was involved. As has been held by the Supreme Court, in several of its decisions, the power to compulsorily retire has to be exercised for furtherance of public interest. It has to be and shall be exercised only in furtherance of public interest. The private appetite of the repository of a public power can never be satisfied ''without the order being castigated and voided as in excess of the legitimate purpose of the power. There is enough material in the present case to show that such mischief has been perpetuated. The requisite opinion of the appropriate authority should be that the retirement of the victim is in public interest - not personal, political or other interest, but solely governed by the interest of public service. It was held in Baldev Raj Chadha Vs. Union of India (UOI) and Others, as follows:

This takes us to the meat of the matter, viz. whether the Appellant was retired because and only because it was necessary in the public interest so to do. It is an affirmative action, not a negative disposition, a positive conclusion, not a neutral attitude. It is a terminal step to justify which the onus is on the victim must make out the contrary. Security of tenure is the condition of efficiency of service. The Administration, to be competent, must have servants who are not plagued by uncertainty about tomorrow. At the age of 50 when you have family responsibility and the sombre problems of one''s own life''s evening, your experience, accomplishments and fullness of fitness become an asset to the Administration, if and only if you are not harried or worried by ''what will happen to me and my family?'' ''where will I go, if cashiered?'' ''How will I survive when I am too old to be newly employed and too young to be superannuated? These considerations become all the more important in departments where functional independence, fearless scrutiny, and freedom to expose evil or error in high places is the task. And the Ombudsmanic tasks of the office of audit vested in the C & AG and the entire army of moniters and minions under him are too strategic or the nation''s financial health and discipline that immunity from subtle threats and oblique over-aweing is very much in public interest. So it is that we must emphatically state that under the guise of ''public interest'' if unlimited discretion is regarded acceptable for making an order of premature retirement, it will be the surest menace to public interest and must fail for unreasonableness, arbitrariness and disguised dismissal. To constitutionalise the rule, we must so read it as to free it from the potential for the mischiefs we have just projected. The exercise of power must be bona fide and promote public interest. There is no demonstrable ground to infer mala fides here and the only infirmity alleged which deserves serious notice is as to whether the order has been made in public interest. When an order is challenged and its validity depends on its being supported by public interest, the State must disclose the material so that the Court my be satisfied that the order is not bad for want of any material whatever which to a reasonable man reasonably instructed in the law, is sufficient to sustain the grounds of ''public interest'' justifying forced retirement of the public servant. Judges cannot substitute their judgment for that of the Administrator but they are not absolved from the minimal review well-settled in administrative law and founded on constitutional obligations. The limitations on judicial power in this area are well known and we are confined to an examination of the material merely to see whether a rational mind may conceivably be satisfied that the compulsory retirement of the officer concerned is necessary in public interest.

In Ram Ekbal Sharma Vs. State of Bihar and another, , it has been held by the Supreme Court that,

even though the order of compulsory retirement is couched in innocuous language without making any imputations against the government servant who is directed to be compulsorily retired from service, if challenged, the Court, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. Mere form of the order in such cases cannot deter the Court from delving into the basis of the order if the order in question is challenged by the concerned government servant.

It has been held in Baldev Raj Chadha Vs. Union of India (UOI) and Others, as follows:

The whole purpose of Fundamental Rule 56(j) is to weed out the worthless without the punitive extremes covered by Article 311 of the Constitution. But under the guise of ''public interest'' if unlimited discretion is regarded acceptable for making an order of premature retirement, it will be the surest menace to public interest and must fail for unreasonableness, arbitrariness and disguised dismissal. The exercise of power must be bona fide and promote public interest.

Once it is found that the order though in the form is merely a determination of employment is in reality a cleak for an order of punishment, the Court would not be debarred merely because of the form of the order in giving effect to the rights conferred by law upon the employee.

Anoop Jaiswal Vs. Government of India and Another,

In Ramachandra Raju v. State of Orissa 1994 Supp. 3 SCC 424, it was held having regard to the facts and circumstances of that case that the exercise of the power of compulsory retirement by the Government fell in the category of arbitrary exercise of power for failure to take the total record of service into consideration.

As has been held in Union of India (UOI) Vs. Col. J.N. Sinha and Another, that if the civil servant is able to establish that the order of compulsory retirement suffered from any of the following infirmities.

(i) that the requisite opinion has not been formed; or

(ii) that the decision is based on collateral grounds; or

(iii) that it is an arbitrary decision,

the Court has jurisdiction to quash the same. No doubt, chopping off the dead wood is one of the important considerations for invoking Rule 56(j) of the Fundamental Rules as held by the Supreme Court in C.D. Ailawadi v. Union of India and Ors. AIR 1990 SC 1004 - the decision relied on by the learned Counsel for the Respondents.

I have myself perused the service records of the Writ Petitioner. I do not find that his service record is so poor as to warrant empulsory retirement. His integrity has been beyond doubt and there was nothing adverse noticed. There were "no complaints. His assesement during the five years preceding 1988 when he ''moved this Court questioning the appointment of the third Respondent N.C. Songupta as the Enquiry Officer is as follows:

1.4.1984 to 31.10.1984.... Satisfactory

1.11.1984 to 31.3.1985.... Adverse

1.7.1985 to 2.2.1986.... Average

6.9.1986 to 31.3.1987.... Average

4.5.1987 to 14.3.1987.... Adverse (Average)

15.8.1987 to 31.3.1988.... Good

The adverse remarks during the periods 1.11.1984 to 31.3.1985 and 4.5.1987 to 14.8.1987 cannot be put against the officer at all. According to the Respondents, the officer had been putting spokes in the enquiries against him and there can be no doubt that the adverse remarks were inspired by the attitude of the Writ Petitioner towards the enquiries ordered against him.

From the sequence of events and the records available, it can be easily seen that the order of compulsory retirement of the Writ Petitioner was a mere camouflage couched in innocuous language and in fact, it had been made by way of punishment. It had not been made bona fide, but for collateral purpose and on extraneous consideration, by way of punishment.

I am satisfied that the retirement of the officer concerned is not necessary in public interest. A short cut may often be a wrong cut. The order of compulsory retirement passed against the Writ Petitioner as has been observed by the Supreme Court in Baldev Raj Chadha Vs. Union of India (UOI) and Others, , has to fail because vital material relevant to the decision had been ignored and obsolete material, less relevant to the decision has influenced the decision.

I have absolutely no doubt that the order of compulsory retirement is arbitrary and in contravention of Article 311 of the Constitution and it violates the principles of natural justice. It has not been made bona fide.

In view of the discussion above, it has to be held that the retirement of the Writ Petitioner by the Respondents was not in public interest, but more to spite him. The timing of his dismissal is also very significant. When the Writ Petitioner had been knocking at the doors of this Court by filing Writ Petitions ventilating his grievances, the Respondents chose to retire him from service allegedly in public interest. The conduct of the Respondents is wholly unjustified. Indeed it warrants interference under Article 226 of the Constitution of India.

So far as the first Writ Petition is concerned, the third Respondent cannot continue as the Enquiry Officer. So far as the second Writ Petition is concerned, the documents required by the Writ Petitioner had not been made available for inspection to him and the attitude of the Respondents was clearly arbitrary and smacks of mala fides. So far as the third Writ Petition is concerned, I am satisfied that the order of compulsory retirement was a mere camouflage to get rid of the Writ Petitioner from service. There had been failure of natural justice. He had been condemned unheard. All the three Writ Petitions deserve to be allowed and they are hereby allowed. No costs.

In view of the orders passed in the main Writ Petitions, no orders are necessary in W.M.P. Nos. 22562/88, 22563/88, 18481/90 and 18482/90.