Jayanta Kumar Sikdar Vs State of West Bengal and Others

Asok Kumar Ganguly, J.@mdashThis writ petition has been filed challenging the order of the State Administrative Tribunal dated 17.01.2002 by which O. A. No. 1438 of 1997 filed by the writ petitioner was dismissed.

2. The relevant facts of the case are that an order of suspension was issued against the petitioner by the Deputy Commissioner of Police, Special Bench, in contemplation of a departmental proceeding. Thereafter, on 20th June, 1996, the petitioner was directed to attend the office regularly and the suspension order was virtually withdrawn. The petitioner was thereafter served with a chargesheet alleging misconduct and the petitioner was directed to state in writing within seven days from the date of receipt of the chargesheet whether the petitioner would accept the charges in full or in part or whether the petitioner would like to face an enquiry in respect of those charges. After time was extended to the petitioner to give reply to the charges, the petitioner gave a reply denying the charges and in the said reply the petitioner wanted supply of some documents which were relied on in the chargesheet. The petitioner also made a prayer for engaging an Advocate for defending his case in the enquiry proceeding. However, the petitioner''s prayer for engaging an Advocate was rejected by the enquiry officer and the petitioner was asked to attend the enquiry proceeding on and from 10th of October, 1996.

3. The main grievance of the petitioner is that the enquiry was conducted without giving the petitioner proper opportunities of defence. In support of the aforesaid grievance, the petitioner urged that his prayer for documents made on 10.10.1996 was turned down by the enquiring authority without any reason. In the said prayer for documents, the petitioner wanted the enquiry officer to furnish him with various documents which were mentioned in the chargesheet. But the enquiry officer did not disclose any reason why the petitioner''s prayer for documents was denied to him by the order dated 01.11.1996. Apart from that, the main grievance of the petitioner is that the chargesheet in this case is admittedly based on the alleged complaint of one Smt. Nilanjana Guha. But Nilanjana was not examined in the presence of the petitioner nor was the petitioner given any chance to cross-examine Nilanjana. This seems to be a serious complaint made by the petitioner. The importance of Nilanjana as a witness in the departmental proceeding against the petitioner is clear if we look into the nature of charges against the petitioner.

4. The articles of charges against the petitioner are set out below :

1. You developed intimate relationship with one Smt. Nilanjana Guha while she was the wife of Sri Sumit Guha in the year 1987. After her divorce in the year 1989 you along with Nilanjana lived at Railway quarter No. 12/E, Ghoshapur Railway Colony, Behala till 1994 and then shifted to flat No.3/33 at HUDCO Estate, Ultadanga which was the official accommodation allotted to you.

2. As a member of the security personnel group of the Chief Minister of West Bengal you went to Delhi and you stayed at Guest House (Banga Bhavan) along with Nilanjana on 23.12.1995 and other days.

3. Again as a member of security team of the H. E. the Governor of the West Bengal you visited Hyderabad in the month of April, 1995 between 19th April and 25th April you stayed together with Nilanjana.

4. On 1.6.1996 you reported sick at quarters and on 2.6.1996 you visited office and submitted a prayer for six days leave. You left Headquarters before the leave was granted.

5. As this complaint was made by the petitioner''s Counsel that Nilanjana was examined without any information to the petitioner, this Court wanted to know from the learned Counsel for the respondents whether such complaint was correct or not. The learned Counsel for the respondents fairly submitted that he cannot improve upon the records and from the records, it appears that Nilanjana was examined but admittedly she was examined without any information to the petitioner and the petitioner was not allowed any opportunity to cross-examine her. Apart from that from the records of the case which have been produced before this Court, it appears that the other witnesses, namely, the priest of the Kalighat Temple Sri Swaraj Bhattacharjee was examined on 16.5.1997. The said examination of the priest also took place in the absence of the petitioner and the petitioner was not given any chance to cross-examine the said priest. Apart from Smt. Nilanjana Guha and the said priest, K. Chowdhury, Caretaker, HUDCO, a witness named in the chargesheet was examined but the petitioner was not informed and the petitioner was not allowed to cross-examine Mr. Chowdhury. These three principal witnesses were examined in the absence of the petitioner and the petitioner was not given any chance to cross-examine them.

6. This aspect of the grievance of the writ petitioner could not be controverted by the learned Counsel for the respondents with reference to the records and the learned Counsel submitted fairly that he cannot improve upon what is there in the records. This Court finds that apart from those witnesses other witnesses who were not named in the chargesheet were also examined, namely R.N. Mondal, S.P. Bagchi and also Mr. Mihir Bhattacharyya, ADC to the Governor of West Bengal. The petitioner was never informed why persons who are not shown as chargesheeted witnesses were examined. The other grievance of the petitioner is that one Mr. P.B. Gupta held the preliminary enquiry and submitted the report of such enquiry but the preliminary enquiry report was not given to the petitioner. P.D. Gupta was examined in the course of the disciplinary enquiry on 10.9.96 and the petitioner was asked to cross-examine P.D. Gupta without being supplied the copy of the report submitted by that witness. This grievance of the petitioner could not be refuted on facts by the learned Counsel for the State. All these aspects of the enquiry certainly constitute clear violation of the principles of natural justice. Apart from the aforesaid infirmities, from the report of the enquiry, it appears that the enquiring authority has travelled beyond the chargesheet and recorded the following findings:

Scrutiny of the statement reveals that sometimes in the month of January, 1990 Jayanta Sikdar solemnised the marriage with Nilanjana according to Hindu rites at Kali Temple, Kalighat by a priest, namely, Sri Swaraj Bhattacharjee, son of Late Durga Charan Bhattacharjee of 12, Kali Lane, Calcutta - 26. It was also heard from Swaraj Bhattacharjee that Jayanta Sikdar paid him Rs.700/- for all the expenditure. The C.O. Jayanta Sikdar also put vermilion on forehead of Mrs. Nilanjana Guha after taking religion sworn (Exhibit -V). He also made a descriptive roll of Nilanjana Guha as well as C.O. Jaynata Sikdar from his memory which he could readily identified when the joint photograph of Nilanjana and Jayanta (CO.) was produced before him (Exhibit - VA). The boundless carnal and amorous lust which was filthy in the general society has been exposed in a very crud way which may be visualized from the Exhibit-VB. The photograph exposes passive posture of Nilanjana where C.O. Jayanta Sikdar played an active role.

7. These alleged findings which have been recorded by the enquiry officer are absolutely outside the chargesheet and the alleged photographs which have been referred to in the said findings are also not referred to either in the chargesheet or in the listed documents. It is therefore clear that the enquiry officer failed to discharge his duty by acting in an objective manner in order to find out whether the charges are proved or not.

8. The enquiry report bristles with alleged findings to show that the enquiry officer was swayed by emotion and prejudice while holding the enquiry and the enquiry officer has often travelled beyond the charges labelled against the petitioner. The enquiry officer thus failed to maintain the required degree of detatchment and objectivity in giving his report.

9. The learned Counsel for the petitioner, in support of his argument, relied on various judgments which are noted hereinbelow.

10. First the learned Counsel relied on Division Bench judgment of this Court in the case of South Bengal State Transport Corporation and Ors. v. Jahar Goswami, reported in 2001 S L R 157. In that judgment the learned Judges of the Division Bench of this Court held, after discussing the various decisions on the point, that non-supply of list of documents and the list of witnesses undoubtedly causes prejudice to the delinquent employee (para 6). The learned Judges also held in para 9 of the said judgment that once the disciplinary authority initiates a departmental proceeding, despite the admission by the delinquent officer about his alleged guilt, it is obligatory on the part of the authority to scrupulously follow the procedural safeguards laid down in the regulation (para 9).

11. Relying on those principles, the learned Counsel for the petitioner urged that in the instant case the procedure for holding enquiry has not at all been followed. The learned Counsel refers to Regulation 9 Chapter XIX of the Police Regulations of Calcutta. In the enquiry proceeding to be held under those regulations and under the Regulation 9 sub-regulation (4), it is made clear that charged officer will be entitled to cross-examine the witnesses who were examined in the departmental proceeding. In the instant case, admittedly Nilanjana on whose complaint the entire chargesheet was framed, was examined in the absence of the petitioner and without any information to the petitioner. The petitioner was never given any chance to cross-examine the said witness. but her evidence had been relied upon by the enquiry officer in submitting the enquiry report. This factual aspect cannot and has not been denied by the learned Counsel for the State. Therefore, there is a clear case of violation of principles of natural justice and the principles in the case of Jahar Goswami (supra) are attracted.

12. Reliance was also placed by the learned Counsel for the petitioner on the judgment rendered in the case of Swapan Roy v. Indian Alliance Ltd. and Ors. reported in 1996(1) Cal H C 147. In the said judgment, the learned Single Judge relying on the judgment of the Supreme Court in the case of State of Assam and Another Vs. Mahendra Kumar Das and Others, , held that the enquiry officer is not permitted to collect any material from outside sources in the course of enquiry and use the same in the enquiry proceeding. It was also stated that if the said procedure is adopted, the enquiry proceeding gets vitiated.

13. This Court is of the opinion that the said principle clearly applies to the facts of the case, inasmuch as several witnesses including Nilanjana were examined by the enquiry officer behind the back of the petitioner and the evidence adduced by those witnesses have been used in the proceeding against the petitioner. Therefore, a clear violation of principles of natural justice has taken place. The ratio of the judgment in the case of State of Assam (supra) was followed by the Single Judge in the case of Swapan Roy (supra) it is clear that the enquiry proceeding has been vitiated.

14. Reliance was also placed on the judgment of the Supreme Court in the case of State of U.P. Vs. Shatrughan Lal and Another, . In that case the Supreme Court came to the conclusion that if the charged employee is denied supply of copies of the statement recorded in the preliminary enquiry, the employee is not given adequate opportunities of defence especially when the person conducting the preliminary enquiry had submitted his report was examined in the proceeding. In the instance case one P. D. Gupta was examined in the enquiry proceeding and Gupta conducted the preliminary enquiry against the petitioner and submitted his report but that report has not been supplied to the petitioner. Therefore, in the facts of this case, it is clear that enquiry proceeding has been vitiated.

15. The learned Counsel for the respondents finding that he has a weak case on facts relied on several judgments in order to show that violation of natural justice in the facts and circumstances of this case has not created any prejudice for the employee. First of all, the learned Counsel dealt with a part of the case which was made out in the writ petition, namely, that misconduct alleged against the petitioner does not actually make out a case of misconduct under the relevant rules under which the petitioner is governed. The allegations against the petitioner, assuming they are true, only make out a case of misconduct outside the purview of the petitioner''s official duty. The learned Counsel for the respondents submitted that the petitioner cannot take up that stand. It has been submitted by the learned Counsel that this Court has held in the case of Probodh Kumar Bhowmick v. University of Calcutta, reported in 1994(2) Cal L J 456, that even where rules do not clearly specify the acts of misconduct or where acts alleged against the delinquent employee do not come within the purview of certain specified rules, such acts of an employee can be also called acts of misconduct. The learned Counsel referred to paragraphs 12, 13, and 14 of the said judgment. This Court is also of the opinion that this part of the submission made by learned Counsel for the respondents may be right, namely that acts or allegations complained against the petitioner may amount to misconduct. The learned Counsel also relied on another judgment of the Supreme Court in the case of Ministry of Finance and Anr. v. S. B. Ramesh, reported in 1998(3) S CC 277. In that judgment, the Apex Court held, disapproving the view taken by the Administrative Tribunal, that the act of living together would amount to misconduct, regardless of the question they are described as such under the relevant rules. This Court accepts the aforesaid contention of the learned Counsel for the respondents that the allegations made against the petitioner in this case may amount to misconduct but assuming that those are acts of misconduct even then such allegations of misconduct must have to be proved in a regular departmental enquiry and the delinquent must be given proper opportunities to defend himself in such an enquiry. Mere allegations cannot be accepted as proof of what has been alleged.

16. The learned Counsel for the respondents wanted to argue that in the facts and circumstances of this case denial of a right of cross-examination has not vitiated the enquiry and in support of same, the learned Counsel relied on the judgment of the Supreme Court in the case of K.L. Tripathi Vs. State Bank of India and Others, . In K. L. Tripathi, factually it was found by the Supreme Court that Tripathi was associated with the preliminary investigation that was conducted against him and in which he did not deny or dispute information and materials which were undoubtedly gathered in his presence. Whatever information was gathered and which were required to be shown to Tripathi were shown to him. Tripathi was conveyed the information which was given and explanation was asked for from him. He participated in the investigation. He gave his explanation and did not dispute any of the facts nor did he ask for any opportunity to call any evidence to rebut these facts. He asked for a personal hearing and the same was given to him. His explanations were duly recorded and Mr. Tripathi did not allege that his conversation was improperly recorded nor did Tripathi question the veracity of the witnesses or the entries or the letters upon which charges were framed and upon which he was found guilty. In view of these facts the Court found that Tripathi was consulted at every stage of the preliminary investigation.

17. In the background of these facts the learned Judges held that refusal to give Tripathi an opportunity to cross-examine the persons gave the information cannot be said to have caused a failure of natural justice.

18. It is obvious that facts and situations prevailing in the case of Tripathi and the present case are vastly different. In the instant case Nilanjana and other witnesses were examined in the absence of the petitioner and they were examined without any intimation to the petitioner. The petitioner has no clue as to what has been stated by those witnesses. In the background of these facts, denial of an opportunity to the petitioner to cross-examine of those witnesses has resulted in a total failure of natural justice and the same has vitiated the enquiry proceeding. Therefore, the ratio in the case of Tripathi is not attracted here.

19. The learned Counsel also placed reliance on the judgment of the Supreme Court in the case of R.S. Saini v. State of Punjab and Ors., reported in 2000 SC S L R 157. In that case the Supreme Court held that mere non-grant of sufficient adjournment does not constitute violation of principles of natural justice when sufficient opportunities were given to the delinquent to defend him by giving a detailed written reply and also by giving an opportunity of hearing through Counsel. In this case as noted above the petitioner was denied legal assistance and also the assistance of a defence helper. Apart from that here the allegation of violation of principles of natural justice does not rest on allegation of denial of adjournment but here the allegation, as pointed out above, rests on much stronger footing. Therefore, the decision in the case of R. S. Saini (supra) does not apply here.

20. The learned Counsel also relied on the decision of the Supreme Court in the case of Hira Nath Mishra and Others Vs. The Principal, Rajendra Medical College, Ranchi and Another, in order to contend that absence of opportunity of cross-examination does not violate the principles of natural justice. In the case of Hiranath, the learned Judge held that principles of natural justice are not inflexible rules and they vary from situation to situation. The facts in Hiranath were that an enquiry was to be conducted against certain male students of the college about their indecent behaviour with inmates of the girls hostel in the hostel compound itself during odd hours of night. In view of those facts the learned Judge held that principle of natural justice does not require that statement of the girl students should be recorded in the presence of the male students. The learned Judges held in paragraph 11 that it is not expected from the girls who were molested to come forward to give evidence if a strict enquiry like an enquiry in a Court of Law is held. Therefore, under those circumstances, the way the enquiry was conducted by the Principal of the College was the correct course. Possibly the Apex Court thought that the identity of the girls should not be disclosed for fear of retaliation and in the interest of student''s discipline. But in the instant case that is not the position, Nilanjana made her identity very clear and she made a complaint for the purpose of holding a disciplinary enquiry. There is no question of Nilanjana not coming out to disclose her identity before the petitioner. Therefore, the protection, which was given to the student of the girls hostel, is not required to be given to Nilanjana and she never asked for it. So in the instant case denial of opportunity to the petitioner to cross-examine Nilanjana has really caused a total violation of principles of natural justice.

21. The learned Counsel also relied on a decision of Supreme Court in the case of Union of India (UOI) Vs. T.R. Varma, . In T.R. Verma, the Supreme Court held that the technicalities of the Evidence Act do not apply in a departmental proceeding. The departmental proceeding is required to be held by observing the principles of fairness and also the rules of natural justice. There can be no dispute with this proposition. But it is well-settled that even though the technicalities of Evidence Act do not apply to a departmental proceeding, but the genuine principles emanating from the Evidence Act must be made applicable in a departmental enquiry and the person charged against must be given an opportunity to show his innocence. (See Union of India (UOI) Vs. H.C. Goel, , para 27 page 370 of the report).

22. Therefore, considering the facts and circumstances of this case, this Court is of the opinion that departmental enquiry was not held against the petitioner in a fair manner. The petitioner was not given proper opportunities of defence nor did the enquiry officer act properly in submitting the enquiry report. If the enquiry report is read objectively it is clear that enquiry officer had travelled beyond the chargesheet in finding the petitioner guilty and thus failed to discharge his function as an enquiring authority in a fair manner. The order of dismissal is based on such an enquiry which has been conducted in a wholly unfair manner, and such an order cannot be sustained. The order of dismissal dated 27.8.1997 is therefore, quashed.

23. Since the order of dismissal is set aside, all subsequent orders passed on the same, namely, the order of the appellate authority dated 17.11.1997 is also quashed. The judgment dated 17.1.2002 of the State Administrative Tribunal passed in O. A. No. 1438 of 1997 is also quashed. This Court directs that the petitioner should be reinstated in service forthwith and within a period of seven days from the date of service of an operative portion of this order on the respondent authorities. During the period the petitioner was kept out of employment, namely, from 1997 to 2005 the petitioner''s seniority and continuity in service should be maintained. Therefore, the petitioner must be reinstated in a post which is commensurate with the petitioner''s seniority and considering the fact that the petitioner was dismissed from service on 27.8.1997 from the post of Sergeant.

24. For the period between August, 1997 to August, 2005, during which the petitioner was kept out of employment because of the order of dismissal, the petitioner should be paid 50 per cent of the entire back wages. This direction is given by this Court considering the fact that the petitioner has not stated that during the said period he was not gainfully employed elsewhere. Such back wages should be paid to the petitioner within 3 months of the date of reinstatement.

25. The writ petition thus succeeds. The order of the Tribunal is set aside.

26. There will be no order as to costs.

27. Urgent xerox certified copy of this judgment and order be given to the parties as expeditiously as possible upon completion of all formalities.

Tapan Kumar Dutt, J.

I agree.

Later:

28. The records which were produced before the Court are returned back to the learned Counsel for the State, Mr. Subrata Mukhopadhyay.