Calcutta High Court (Appellete Side)
The Union Of India & Ors vs Sri Pintu Moulik on 26 July, 2021
Item-3 26-07-2021 WP.CT 46 of 2021
The Union of India & Ors.
Versus
Sri Pintu Moulik
sg Ct. 16 (Through Video Conference)
Mr. Rabindranath Bag, Adv.
...for the petitioners
Mr. Ujjal Ray, Adv.
Mr. Arpa Chakraborty, Adv.
...for the respondent
The writ petition is directed against an order dated 2 nd
February, 2021 in O.A. No. 350/745/2020 and O.A. No.
350/537/2020. In OA 350/745/2020 the respondent has
challenged the order of punishment imposed upon the
respondent by an order dated 14th September, 2020 along with
the speaking order dated 14th September, 2019 issued by the
disciplinary authority. In O.A.350/537/2020 the respondent has
challenged the Charge Memoranda dated 13.10.2018 and the
office order dated 30.06.2020.
It appears from the record that the disciplinary authority in
the order dated 14th September, 2018 imposing punishment
proceeded on the basis that the charge-sheet, which has
culminated in an enquiry report, is enforceable and, therefore, on
the basis of such findings of the enquiry officer, imposed the
punishment.
Before the learned Tribunal, the writ petitioners
respondents have candidly stated the following facts:
"22. the text of the order passed in O.A. No. 1387 of 2019
was not appropriately discussed with the authority by the
concerned Advocate who are dealing with the case and the
disciplinary authority was also not aware that the inquiry
report has been quashed by the Hon'ble Tribunal. The
disciplinary authority could not interpret the order
mention in the judgment dated 19.12.2019 at Sl. No.7 & 8.
The DA had complied the order at Sl. No.8 of the
judgment in course of passing the final order. It was
totally unintentional.
23. The authority has all respect and in all issues, the
orders of the Hon'ble Tribunal has been complied with,
but in the instant case, the case of the authority was not
appropriately canvassed, as such the entire issue stood in
miscommunication and the order of removal was passed.
It is further stated that the authority has passed the order
of removal not with the intent to act in violation of the
order passed by the Hon'ble Tribunal.
24. In the aforesaid situation, for the sake of justice, the
Hon'ble Tribunal may be pleased to pass an appropriate
order so that the seriousness of the offence is not ignored
and the authority can continue with the proceeding in
accordance with law to unveil the truth of charges levelled
against the applicant."
The writ petitioners have also candidly submitted before us
that notwithstanding the earlier order passed in O.A.1387 of
2019 by which the disciplinary authority was directed to first
dispose of the representations dated 18th June, 2018 and 2nd
May, 2019 in terms of the order dated 22 nd July, 2019 as also
order passed in the earlier O.A., the disciplinary authority had
proceeded on the basis as if the disciplinary authority could
proceed with the findings of the enquiry officer regardless of the
directions passed in O.A. No. 1387 of 2019 and O.A. No. 916 of
2018. It appears that the disciplinary authority without following
the directions as mentioned in paragraphs 7 and 8 of the order
dated 19th December, 2019 passed in O.A. No. 1387 of 2019,
proceeded to impose punishment which, ex-facie, is in violation
of the order passed in the earlier proceeding thereby rendered the
said order void ab-initio. The direction in the earlier proceeding
by the Central Administrative Tribunal passed in O.A. 1387 of
2019 on 19th December, 2019 reads as under:
"7. The speaking order Presenting Brief, IO's report
being thus, issued in blatant and deliberate violation of the
order passed in O.A. 916 of 2019, are set aside and
quashed.
8. Consequently the DA is directed to first dispose of the
representations dated 18.06.2019, 22.05.2019, in terms of
the order dated 22.07.2019 as in earlier O.A., within 4
weeks from the date of receipt of a copy of this order,
either withdraw the charge memo if found vague, and
issue a fresh charge sheet, or provide copies documents as
are found relevant; justify irrelevancy of the other
documents, conclude the proceeding in accordance with
law and within a period of 6 months from the date of
receipt of this order issue a final order in the proceedings,
which shall accordingly govern the fate of the applicant."
We also find from record that the order passed in O.A.
350/916/2019 dated 22nd July, 2019 where the charge-sheet
issued on 13th October, 2018 was challenged by the original
applicant, the learned Tribunal observed that denial of the
documents asked for by the original applicant could not come
under the purview of privileged documents as stated in
Paragraph 837 in IREM 206. We have been informed that these
documents were also not supplied to the original applicant.
Under the aforesaid facts and circumstances of the case
and in view of the stand taken by the authority concerned before
the learned Tribunal in the earlier proceeding admitting that due
to lack of communication, the disciplinary authority overlooked
the findings of the learned Tribunal in Serial No.7 of the earlier
order, we feel that the Tribunal was justified in quashing the
order dated 14th September, 2020 with liberty to the present
petitioners to act in accordance with law.
It is placed on record and it is not in dispute that the order
dated 22nd July, 2019 and the order dated 19th December, 2019
have not been challenged by the writ petitioners and the said
orders have attained finality.
The learned Counsel for the respondent has submitted that
in terms of the earlier order dated 19th December, 2019, direction
given to the writ petitioners to complete the entire exercise
within a period of six months from the date of receipt of the said
order, has not been complied with.
In view of the fact that the matter was pending and there
was some misunderstanding on the part of the disciplinary
authority as canvassed in the affidavit filed before the learned
Tribunal, we give liberty to the petitioners, if advised, to have a
de novo enquiry and if such proceeding is initiated, it is needless
to mention that the petitioners shall comply with the principles
of natural justice and make available all the documents to the
original applicant for effectively defending him in the enquiry
proceeding, unless such documents are privileged. In
considering the relevancy of the documents that may be asked
for by the original applicant, if the de novo enquiry is initiated,
regard must be given to the observations of the learned Tribunal
in relation to such documents made in the order dated 22 nd July,
2019 in O.A. 350/916/2019.
If the de novo enquiry is not initiated within a period of
four week from date, it shall be presumed that the writ
petitioners are not interested to proceed against the original
applicants. In the event de novo enquiry is initiated, the entire
proceeding shall be concluded within a period of one year from
the date of initiation of such disciplinary proceeding.
In view of the aforesaid order, we feel that the learned
Tribunal while quashing the order dated 14th September, 2020
should have passed consequential order protecting the interest of
the original applicant. It is open to the writ petitioners to treat the
applicant under suspension from the date of issuance of the order
of removal for a further period of four weeks and the original
applicant shall be entitled to admissible subsistence allowance.
In the event fresh proceedings are not initiated, the original
applicant should be treated as if he is in employment and
suitable order of reinstatement shall be passed by the writ
petitioners with consequent benefits.
In view of the aforesaid order, the learned Counsel for the
original applicant has candidly submitted that two applications
filed before the learned Tribunal have now become infructuous
and he shall apply before the learned Tribunal for withdrawal of
the said cases.
Considering the seriousness of the charge sheet, we permit
de novo enquiry on the self-same allegations as we have set
aside the earlier orders passed by the disciplinary authority on
the ground of procedural impropriety and violation of principles
of natural justice. The relevancy of documents are not required
to be gone into at this stage. The validity of the earlier charge
sheet is also not gone into at this stage in view of paragraph 8 of
the order dated 19th December, 2019 in O.A. 1387 of 2019.
With the aforesaid observation, the writ petition is
accordingly, disposed of.
All parties shall act on the basis of the server copy of this
order duly downloaded from the official website of this Court.
(Hiranmay Bhattacharyya, J.) (Soumen Sen, J.)
