Dibyendu Chakraborty vs Union Of India And Others
2021 Latest Caselaw 5966 Cal

                     IN THE HIGH COURT AT CALCUTTA
                CONSTITUTIONAL WRIT JURISDICTION
                            APPELLATE SIDE


Present:
The Hon'ble Justice Sabyasachi Bhattacharyya
             And
The Hon'ble Justice Jay Sengupta


                            W.P.C.T. 69 of 2018
                          Dibyendu Chakraborty
                                 Versus
                        Union of India and others



For the Petitioner           : Mr. Debabrata Saha Roy
                              Mr. Indranath Mitra
                              Mr. Subhankar Das
                              Mr. Neil Basu
                                              ...Advocates


For the Respondents          : Mr. Rajdeep Biswas

...Advocate

Heard on : 30th September, 2021

Judgment on : 1st December, 2021

Jay Sengupta, J.:

1. This application is directed against a judgment and order dated

19.02.2018 passed by the Learned Central Administrative Tribunal, Kolkata

Branch in OA No. 1851/2015, thereby affirming an order dated 04.07.2011

issued by the disciplinary authority as affirmed by the appellate authority

on 02.09.2015.

2. On 15.10.1985 the applicant was appointed as an unapproved

substitute at the Taherpur Station under the Eastern Railway. On

26.02.1992 he was promoted to the post of commercial clerk in September

2003. The applicant was appointed as Goods Guard and was posted at

Naihati. On 22.06.2005 the petitioner was placed under suspension and a

charge-sheet was issued to him on 28.12.2005. The alleged charged related

back to the year 1994. It was alleged that the petitioner had adopted unfair

means while entering into railway service. The petitioner got the employment

in the railway as a gang man by virtue of AEN/BT/S letter number

EG/2/BT dated 15.09.1994 (RUD-I), but the authority as mentioned in the

said letter which was also mentioned in the service record of the concerned

staff was fake. Senior DPO/SDAH confirmed that no such letter as indicated

in the office order had been issued from his office. The front page of the

service record of the petitioner revealed that he was appointed by an office

order dated 21.10.1993. The front page of the same bore the signature of the

petitioner, that he had been appointed on the basis of such order of senior

DPO/SDAH. On 11.06.2006 the petitioner prayed for revocation of

suspension order. On 01.09.2006 during the course of enquiry the charge

memorandum dated 28.12.2005 was withdrawn. But, on 10.10.2006 a

second memorandum of charge was issued. The petitioner again prayed for

revocation of suspension order on 26.10.2006. On 19.04.2007 he prayed for

a change of the enquiry officer. He again made a representation for stay of

the departmental proceeding on 17.05.2007. On 04.02.2008 the suspension

order was revoked. During the course of enquiry the petitioner prayed for an

adjournment on 10.03.2008 but the same was turned down. On 24.03.2008

the enquiry proceeding was held and the enquiry was declared closed. The

petitioner challenged the decision before the learned Central Administrative

Tribunal by filing OA No. 263/2008. On 02.04.2008 the said application was

disposed. On 22.05.2008 the disciplinary authority requested the enquiry

officer to supply documents to the petitioner and thereafter to start enquiry.

On 18.06.2008 the enquiry officer intimated the disciplinary authority that

the question of further enquiry did not arise since he had already submitted

charge-sheet on 29.04.2008. The applicant submitted his reply before the

enquiry officer in 2008 and then again representation before the disciplinary

authority in 2009 he finally submitted his reply on findings of the enquiry

officer on 16.06.2011. On 04.07.2011 the disciplinary authority passed an

order of the petitioner's dismissal with immediate effect. The applicant

preferred before the learned appellate authority in terms of leave granted by

the learned tribunal in OA No. 729/2011. On 14.08.2012 the appellate

authority confirmed the order passed by the disciplinary authority. The

revisional authority rejected the prayer of the applicant. On 09.07.2015 the

learned tribunal passed the impugned order disposing of petitioner's

application. Pursuant to this, the petitioner submitted notes of arguments

before the appellate authority. On 02.09.2015 the appellate authority

passed an order of affirmation of the dismissal. On 19.02.2018 OA No.

1851/2015 filed by the petitioner challenging the order of the appellate

authority was dismissed. Being aggrieved by such order the petitioner

preferred a writ application being WPCT 49/2018. On 24.07.2018 the

application preferred by the petitioner was dismissed as withdrawn with

liberty to file afresh with proper annexure. Thereafter, the petitioner filed the

present application challenging the order passed by the learned tribunal.

3. Mr. Saha Roy, learned senior counsel appearing on behalf of the

petitioner submitted as follows. The main allegation was that a wrong

information was supplied before the employer on behalf of the petitioner

during his appointment. But, there was a delay of about 11 years in

bringing up the issue. The petitioner's prime contentions were that there

was an inordinate delay in levelling charges; nearly 11 years have passed

from the alleged date of occurrence. Secondly, no reason was given for

withdrawing the first charge sheet and issuing the second. The second

charge sheet was filed against the present petitioner on the self-same

charge, as the first charge sheet. This point was taken up by the petitioner

as far back as in 2006. The petitioner gave the second representation.

However, the departmental authority arrived at his findings without

providing sufficient reason. In fact, the enquiry was conducted by a retired

employee. Even the appeal preferred by the petitioner was disposed of by an

unreasoned order. The review too contained no reasons. Then the Learned

Central Administrative Tribunal set aside the order and remanded it back.

However, the same order was passed, but with certain guidelines. The

appellate authority, by its order dated 02.09.2015, refused to modify or

change the order passed by the disciplinary authority without giving much

reason. Only two judgments were mentioned. So far as the impugned order

passed by the Learned Central Administrative Tribunal was concerned,

there was nothing to explain why relevant documents were not supplied.

Although not relied upon by the department, those documents were very

vital. In fact, no finding was arrived at as to why those documents were not

relevant. Relevant documents which would have been favourable to the

petitioner were not supplied to him. There was a perverse finding that the

charges were proved by a reasoned order. On the question of delay, reliance

was placed on P.V. Mahadeven vs. Md. T.N. Housing Board, (2005) 6 SCC

636, M.V. Bijlani vs. Union of India & Ors., (2006) 5 SCC 88 and B.K. Malla

vs. Union of India & Ors., (2010) 3 CHN (Cal) 878.

4. Mr. Biswas, learned counsel for the Union of India submitted as

follows. Adequate reasons were given for the second charge sheet as would

be evident from the order of the learned Tribunal. Moreover, delay has been

properly dealt with. Charge sheet was issued immediately after the

irregularity was detected. On the issue that the delay was not fatal if

sufficient ground was there to proceed, reliance was placed on (2009) 7 SCC

305. On the question of non-supply of documents, reliance was placed on

(1993) 4 SCC 77.

5. We heard the submissions of learned counsels representing the

petitioner and the respondent and perused the application.

6. It is alleged that the petitioner had obtained the job at the first

instance by relying on some fake documents. However, this was not pointed

out for a very long time and the petitioner was allowed to work in the

department and get promotions by sitting in appropriate test/s. The

authorities did not exercise due care and caution for an inordinately long

time. So, the alleged illegality could be detected after nearly 11 years of

service of the petitioner. All this long the petitioner worked in the capacity in

which he was to serve the employer. The very fact that the petitioner was

promoted on certain occasions makes it abundantly clear that he was doing

his job quite well. Although ordinarily an act of fraud would vitiate a process

and would date back to the earliest point in time when the engagement in

question was initiated, yet a patent lack of care, caution and sincerity on the

part of an employer in detecting the same could act as an acquiescence and

as a consequent waiver of irregularity in certain cases. This is especially so

when all relevant documents are available for such detection. In the present

case, a hiatus of 11 long years in the employer's urge to exercise reasonable

care and caution does vitiate the belated departmental proceeding. The

decisions relied upon on the issue of effect of delay, too indicate that an

inordinate and unexplained delay may act as a bar to such a belated

proceeding.

7. As regards non supply of copies, the view of the learned Tribunal that

the petitioner failed to explain why he needed the copies of documents is not

quite relevant. There were certain documents available with the employer. It

was open to them to rely on some such documents in the departmental

proceedings. All the documents that would be relied upon against the

petitioner have to be supplied to him. Even as far as the other documents

available with the employer, it was the petitioner's right to pray for supply of

some such documents, which would enure to his benefit. It is a categorical

case of the petitioner that the documents that he had sought, but were

refused to be supplied to him by the authorities would have clearly

strengthened his defence. Therefore, the failure of the authorities to supply

copies of documents as sought by the petitioner strikes the proceeding at its

root.

8. Now, so far as the withdrawal of the first charge sheet and the

introduction of second is concerned, the same too could not be casually

brushed aside. There is an established procedure by which a charge sheet

in a departmental proceeding can be withdrawn and a second one

instituted. Reference may be made to Index No. 1033 and the Railway

Board's letter dated 01.12.1993. In the present case, no worthwhile reason

was cited for withdrawing the first charge sheet and instituting the second

charge sheet. Such cavalier acts seriously prejudicing an employee cannot

be sustained in the eye of law.

9. If any of the former three issues were not enough alone to vitiate the

proceeding against the petitioner, then the lack of reasoning in the orders

passed against him, of dismissal and thereafter by the appellate authority,

would be sufficient to warrant an interference with the proceeding or its

outcome. The order of the learned Tribunal fails to take these into

consideration.

10. In view of the above referred infractions and infirmities in the

proceedings, the impugned order dated 19.02.2018 passed by the Learned

Central Administrative Tribunal cannot be sustained.

11. Accordingly, we quash and set aside the impugned order passed by

the Learned Central Administrative Tribunal.

12. The writ application is allowed.

13. However, there shall be no order as to costs.

14. Urgent photostat certified copies of this judgment may be delivered to

the learned Advocates for the parties, if applied for, upon compliance of all

formalities.

(Jay Sengupta, J)

I agree

(Sabyasachi Bhattacharyya, J)

LATER

At this stage, learned counsel prays for a stay of the order.

Considered the same.

The prayer is rejected.

(Jay Sengupta, J)

I agree

(Sabyasachi Bhattacharyya, J)