19.09.2023 IN THE HIGH COURT AT CALCUTTA DL-8 CONSTITUTIONAL WRIT JURISDICTION (PP) APPELLATE SIDE WPA 20338 of 2023 Sri Samaresh Das Vs.
Union of India & Ors.
Mr. Achin Kumar Majumder, Ms. Ananya Adhikary ....for the petitioner.
Mr. Sanjit Kumar Ghosh, Mr. Kushi Prasun Chatterjee ....for Union of India.
Mr. Majumder, learned counsel appearing on behalf of the petitioner challenges the memo of charge dated July 9, 2023. He submits that the disciplinary authority has proceeded with the closed mind relying on the language in which the charge sheet has been framed. Furthermore, he submits that the petitioner should have been allowed to get a defence friend of a rank of an Assistant Security Commissioner (ASC) since the fact finding authority was one Vivek Kumar who is holding the post of Assistant Security Commissioner. He submits a defence friend from the post of a Sub-Inspector cannot match the prosecution witness who is holding the post of ASC.
On behalf of Union of India, written instructions are submitted. Such written instructions contain the minutes of the disciplinary proceedings held on 2 August 31, 2023. Such written instructions are retained with the records.
It appears from the said written instruction that at the request of the petitioner made on August 7, 2023, at the first sitting of the disciplinary authority the Enquiry officer (EO), one B. R. Sant (Inspector) was changed and one Sachindra Digi, ASC, was nominated as the EO to conduct the disciplinary proceedings against the petitioner. The petitioner has accepted the said EO. Furthermore, the petitioner agreed to accept one Dharambir Kumar, ASI as his defence friend to conduct the proceedings in favour of the petitioner.
Mr. Majumder, relies on a judgment reported in (2010) 13 SCC 427 (Oryx Fisheries Private Limited vs. Union of India Ors.) to contend that at the stage of show cause, the person against whom the disciplinary proceedings are conducted must be told of the charges against him, so that he can take his defence and prove his innocence. The authority at the time of issuing the charge sheet cannot, instead of telling him the charges, confront him with definite conclusion of alleged guilt. In the event the same is done, the entire proceedings initiated by show cause shall get vitiated due to unfairness and bias and subsequent conduct of the proceedings will be an idle 3 ceremony. The functioning of a quasi-judicial authority should be conducted with fairness to inspire confidence in the minds of the people who are subjected to its jurisdiction.
This Court is of the view that the facts of the aforesaid case do not aid the petitioner in the present proceedings.
The case of Oryx (supra) relates to a commercial contract. The discipline and the standard of conduct that is expected from a member of the Force is definitely stricter than the conduct that the parties to a commercial contract are expected to subscribe to. Furthermore, there were many factual data that were in the favour of the petitioner that the show cause notice did not take into account.
Furthermore, this Court finds that the petitioner has responded to the charge sheet and also on his request, the Enquiry Officer has been changed.
Therefore, this Court is of the view that no interim order is called for in the present writ petition.
Let an affidavit-in-opposition be filed by November 24, 2023. Reply, if any, by December 8, 2023.
Usually a Court does not interfere with the decision of the authorities concerned at the stage of charge sheet or show cause since the final 4 adjudication of the rights of the parties are not determined at the preliminary stage. Interference at such a preliminary stage is usually held to be premature. A beneficial reference is made to the decision of the Apex Court reported in (1987) 2 SCC 179 in (State of Uttar Pradesh vs. Brahma Datt Sharma & Anr.) Parties will be at liberty to mention the matter for "Hearing" upon expiry of the period stipulated for exchange of affidavits.
All parties shall act on the server copies of this order duly downloaded from the official website of this Hon'ble Court.
(Lapita Banerji, J.)