Calcutta High Court (Appellete Side)

State Of West Bengal & Ors vs Dr. Tuhin Chakraborty on 8 September, 2021

                                     1



                  IN THE HIGH COURT AT CALCUTTA
                               APPELLATE SIDE

BEFORE:
The Hon'ble Mr. Justice Soumen Sen
The Hon'ble Mr. Justice Hiranmay Bhattacharyya


                                WPST 8 of 2021

                          State of West Bengal & Ors.

                                         Vs.

                             Dr. Tuhin Chakraborty

For the State                       : Mr. Kishore Datta, Advocate General
                                      Mr. T.M. Siddiqui, Advocate
                                      Mr. Nilotpal Chatterjee, Advocate

For the Respondent                  : Mr. Sandip Ghose, Advocate

Mr. Debayan Ghosh, Advocate

Hearing concluded on : 24th August, 2021

Judgment on : 8th September, 2021

Soumen Sen, J.: The writ petition is arising out of an order passed by

the West Bengal Administrative Tribunal on 28th November, 2019 in

connection with the application filed by Dr. Tuhin Chakraborty in which he

had prayed for quashing of the memo of charges followed by the Article of

charges issued under the memo no. 757-VIG/CON-14/14 dated 19th May,

2014 and had sought necessary directions upon the said petitioners not to

proceed with the purported disciplinary action contemplated against him in

pursuance of the aforesaid memorandum of charges.

The learned tribunal allowed the original application by quashing the

memorandum of charges on the ground that there has been inordinate delay

in issuing the memorandum of charges for which no satisfactory explanation

was offered. The respondents were aware of irregularities if any regarding

non-refunding of the advance received by him almost fourteen years ago

while he was working at Padmaja Naidu Himalayan Zoological Park at

Darjeeling (in short 'PNHZ Park') but did not feel that it was necessary to

initiate any proceeding against him. This order is under challenge.

Shorn of details, the respondent while was working at PNHZ Park at

Darjeeling wanted to participate in a training programme in endoscopy of

exotic birds commencing from 27th September to 2nd October, 1998

scheduled to be held in Stadt Bern, Switzerland.

The authority concerned at Berne accepted the request for the training

course in endoscopy of exotic birds and requested him to attend the course

between the aforesaid period. Since he was working for a zoo the course fee

was waived off and it was notified that he would be provided with a guest

room. However, other expenses were notified to be borne by the respondent.

In order to participate in the said training programme the respondent

obtained an approved advance of Rs.55,000/- only as travelling allowance

from the office of the then Director of PNHZ Park, Darjeeling and, after

returning from training he further claimed Rs.8240/- as tour expenses and

such amount was disbursed in favour of the respondent.

The Director of the said PNHZ Park at Darjeeling vide his letter dated

June 22, 1999 had asked the respondent to pay back the entire sum of Rs.

63,240/- failing which such amount received as advance would be recovered

from the pay bill of the respondent from July, 1999 onwards.

The authorities on 3rd November, 1999 confirmed the recovery of Rs.

50,449/- out of Rs. 55,000/- taken as advance from the salary of the

respondent from June, 1999 onwards as would appear from the letter dated

3rd November, 1999, relevant portions whereof is stated below:

".......However the T.A. Advance of Rs. 55,000/- (Rupees fifty-five thousand) which you had already been taken during tour to Switzerland on 03.08.1999 has been recovered from your salary from June, 99 onwards in the following manner.

1. Salary for June, 99 - Rs.15,021.00

2. Salary for July/August, 99- Rs.19,180.00

3. Salary for September/October, 99- Rs. 16, 248 Total Rs. 50,449 Out of Rs. 55,000/- Rs. 50,449/- has been recovered from the salary bill and the balance amount will be recovered from the salary bill of November, 1999 onwards along with the T.A. advance Rs. 12,000/- which you have taken for your tour....."

The respondent was released from the post of Deputy Director of the

said Zoo on 1st March, 2000 and joined his parent department i.e. Animals

Resources Development Department as Assistant Superintendent of

Livestock.

On or about January 31, 2014 the District Vigilance Officer, Darjeeling

vide Memo. No. 76/VIG dt. January 31, 2014, inter alia, requested the Joint

Director, ARD Department, Institute of Animal Health of Veterinary

Biologicals to hold an enquiry against the respondent in pursuance of

allegations made by the Anti-Corruption Unit, Darjeeling under the Anti-

Corruption Bureau of State Vigilance Commission, West Bengal.

The Secretary of the Government of West Bengal ARD Department as a

Disciplinary Authority under Rule 9 of the WBS (CCA) Rules, 1971 issued a

Memorandum of Charges vide Memo dated May 19, 2014 stating that the

Governor has proposed to hold an enquiry under Rule 10 of the West Bengal

Services (Classification Control and Appeal) Rules, 1971 against the

respondent for failure to refund the aforesaid sum.

Two Articles of charges have been framed against the respondent.

The principle charge against the respondent was that he obtained

travelling allowance to the tune of Rs.63, 240/- to which he was not entitled

and in spite of repeated requests Dr. Chakraborty have never refunded the

said allowances. He was not entitled to the aforesaid allowances as it

transpired from the letter of the Director of Tierpark, Dahlholzli, Bern,

Switzerland dated 21st June, 1998 that the course and the accommodation

was free of charge, but the trainees were required to bear their own

expenses of air fare and insurances charges.

Dr. Tuhin Chakroborty had claimed that the entire amount had been

recovered from his salary and enclosed a copy of Memo no.

1174/EASTAB/FILE/PNHZP dated 3rd November, 1999 of Director, PNHZ

Park, Darjeeling in support of his claim. However, deduction of TA from his

salary could not be corroborated from the records of department. It was

thus held that the aforesaid conduct showed lack of integrity and was

thereby improper and unbecoming of Government servant and as such is

violative of the provisions of Rule 3(2) of West Bengal Services (Duties,

Rights and Obligation of the Govt. Employees) Rules, 1980.

Dr. Chakraborty replied to the said show cause in which he had

specifically stated that there has been inordinate delay in issuing the charge

sheet and the charges levelled against him were stale and liable to be

dropped. In the said letter he had also complained about photocopies of

some illegible documents shown earlier to him along with purported charge

sheet. It had been categorically stated that as per direction of the then

director of PNHZ Park, Darjeeling in the letter dated 22nd June, 1999, the

advance taken by him was fully recovered from his salary. He relied upon

and referred to his last pay certificate and the letter dated 3rd November,

1999, to prove his innocence and accordingly submitted that no disciplinary

proceeding could have been initiated against him. The initiation of the

proceedings was only to harass him and to victimize him.

He also referred to an incident which happened in 2000 when the

then Director of PNHZ Park, Darjeeling tried to victimize him and

suspended him from service, which however, was set aside by the West

Bengal Administrative Tribunal on 6th June, 2000 pursuant to which he was

released from PNHZ Park and thereupon joined the parent organisation. On

the basis of the order dated 6th June, 2000 by the learned Tribunal his

arrear salary was also released. The respondent had received certificate

from the Director of Tierpark in which it was stated that Dr. Chakraborty

impressed the director with his intensive interest and surgical experience

and the director had observed that he had not come across someone

learning the skill so quickly in such a short time. It was further stated that,

Dr. Chakraborty now could perform any kind of endoscopic examination in

rare and exotic birds.

The writ petitioners have challenged the order of the tribunal on the

ground that the learned Tribunal has applied the wrong test and overlooked

decisions of the Apex Court which clearly stated that mere delay in initiating

disciplinary proceeding does not necessarily result in quashing of the memo

of charges.

Mr. Advocate General submits that although the authorities

concerned had failed to detect non-refund of the amount advanced to Dr.

Chakraborty contemporaneously or earlier to 31st June, 2014, the fact

remains that he had taken the said advance to which he was not entitled to

and failed to refund the said amount which prima facie showed his lack of

integrity and, if the disciplinary proceedings were not allowed, it would send

a wrong signal. Moreover no prejudice would be caused in the event the

proceeding is allowed to continue, as in the said proceeding it would be open

for the respondents to prove his innocence. Mr. Advocate General submits

that the reliance of the learned tribunal on State of Madhya Pradesh vs.

Bani Singh, reported at AIR 1990 SC 1308 and I.P.V. Mahadevan vs.

M.D. Tamil Nadu Housing Board, reported at AIR 2006 SC 2007 to grant

relief to Dr. Chakraborty was on wrong appreciation of law.

Mr. Advocate General has referred to few decisions in which Bani

Singh (supra) was noticed and distinguished to submit that the ratio

decidendi of the said decisions were to be understood and applied depending

on the facts and circumstances of the case and does not have universal

application. The decisions are:

(i) Food Corporation of India and Ors. vs. V.P. Bhatia reported at (1998) 9 SCC 131,

(ii) Md. Harul Al Rashid vs. Union of India reported at AIR 2015 Cal 49 (FB),

(iii) Anant R. Kulkarni vs. Y.P. Education Society & Ors., reported at (2013) 6 SCC 515,

(iv) Chairman, Life Insurance Corporation of India vs. A. Masilmani reported at (2013) 6 SCC 530,

(v) Secretary to Govt. Prohibition vs. L. Srinivasan reported at (1996) 3 SCC 57.

It is submitted that the aforesaid decisions have clearly laid down that

delay in all the cases does not automatically result in quashing of the charge

sheet and the disciplinary proceeding must be allowed to be taken to its

logical end. It is further submitted that the charge sheet does not give rise to

any cause of action as issuance of the charge sheet does not infringe the

right of the writ petitioner. It is submitted that it is only when final order

imposing the punishment or otherwise adversely affecting the party, is

passed it may have a grievance and cause of action.

Mr. Advocate General, however, has fairly submitted that the entire

amount has been recovered from the salary of the respondent before the

initiation of the disciplinary proceeding.

The learned Counsel for the respondents submits that there was no

explanation offered for initiating the proceeding for alleged non-refund of the

amount taken as advance before the respondent left for Switzerland. In fact,

the amount was advanced by the director of PNHZ Park, Darjeeling after he

had received the letter from Switzerland dated 21st June, 1998. The Director

at the relevant time felt that the respondent would be entitled to such

advance. The learned Counsel has drawn our attention to last pay slip as

well as the service record that were produced before the tribunal to show

that the entire amount has been realised from the salary of the respondent

in terms of the letter of the director dated 3rd November, 1999. It is

submitted that the respondent did not suppress any fact and since the issue

of refund arose after he had agreed to the said amount being realised from

his monthly salary as directed by the authorities concerned and had

refunded the amount, it cannot be said that he had committed any

misconduct. The authorities did not find the advance amount to have been

dishonestly obtained and thereby a misconduct. No ill motive could be

imputed to the respondent.

In view of the fact that the writ petitioners have fully recovered the

said amount no further demand was raised against the respondent

contemporaneously and he was released from PNHZ Park in March, 2000.

The pay slip, service book and the last pay certificate established realisation

of the entire amount. In fact, the Director of Animal Husbandry, by a letter

dated 4th May, 2000, requested the Director PNHZ Park to release arrear

salary and forward last pay certificate and other documents so as to enable

the office to fix the pay and allowances of the respondent. It was on the

basis of documents forwarded subsequently by the PNHZ Park the pay and

allowances were fixed by the parent organisation. The respondent had filed

the service book, last pay certificate, vigilance file and acquaintance roll in

the Tribunal on 26th June, 2019, in the terms of the order of the Tribunal

dated 23rd April, 2019, and on consideration of all these record the learned

Tribunal quashed in the charge-sheet.

After fourteen years of his release from PNHZ Park, now the issue of

non-refund of advance has been raised and it would be impossible for the

respondent now to prove his innocence. Moreover, the respondent submits

that the record speaks for itself. When the facts are admitted that entire

amount has been realised, the initiation of disciplinary proceeding after

fourteen years is clearly mala fide, harsh and unfair. It is submitted that in

the facts and circumstances of the case the decisions relied upon by the

respondent in the tribunal, namely, Bani Singh (supra) and P. V.

Mahadevan (supra) are relevant and have been correctly relied upon by the

learned Tribunal.

The learned Counsel has also relied upon the following decisions for

the proposition that if the initiation of disciplinary proceeding is unduly

delayed and the charges are not grave and serious, the memo of charges can

be quashed:

State of Madhya Pradesh vs. Bani Singh, reported at AIR 1990 SC

1308 and I.P.V. Mahadevan vs. M.D. Tamil Nadu Housing Board

reported at AIR 2006 SC 2007

In the instant case, the writ petitioners were aware of the irregularity

of non-refunding the aforesaid amount, if any, almost fourteen years ago,

however, there is no explanation offered, far less any satisfactory

explanation for the inordinate delay for issuing the charge memo. Moreover,

the documents produced before the tribunal and forming part of the record

would unmistakably show that the writ petitioner was released by PNHZ

Park after making all adjustments and, in any event the pay slips and last

pay certificate produced before the learned Tribunal during hearing of the

original application does not show that any amount was recoverable from

the respondent by the PNHZ Park before or during the period he was

relieved by the said organization. As rightly pointed out by the learned

Counsel for the respondent, that pursuant to the letter of the Director of

Animal Husbandry dated 4th May, 2000, requesting the Director of PNHZ

Park to release arrear salary and forward last pay certificate and other

documents so as to enable the parent organization to fix the pay and

allowance of the respondent, the parent organization fixed the pay and

allowance upon receipt of such document. The service book, last pay

certificate, vigilance file and acquittance roll filed in the tribunal on 26th

June, 2019, does not show that any amount was recoverable from the

respondent. If now after fourteen years of his release from PNHZ Park issue

of refund is raised it would cause serious prejudice to the respondent, as the

initial onus of discharge of debt is proved as the amount of advance has

been fully recovered from the respondents. The record of the organization

clearly speaks that the debt is discharged.

The learned Tribunal has relied upon Bani Singh (supra) for quashing

the charge sheet. In Bani Singh (supra) the irregularities which were the

subject matter of the enquiry was said to have taken place between the

years 1975-77. Bani Singh was an IPS officer of Madhya Pradesh Cadre and

direct recruit of the 1976 batch. The department did not contend that they

were not aware of the irregularities if any, and came to know it only in 1987.

According to them even in 1987 there was a doubt of the involvement of the

officer for the said irregularities and the investigation was going on. It was

on such facts the Hon'ble Supreme Court observed:

"4. ......... If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's order and accordingly we dismiss this appeal."

In the instant case, the facts are almost similar to Bani Singh (supra)

and from the narration of facts it would appear that the Director of PNHZ

Park, Darjeeling had noticed the irregularities if any, and did not think it

was necessary to initiate in disciplinary proceedings for such alleged

irregularities. The irregularities, if any, with regard to the advance taken by

the respondent towards the training programme, came to the knowledge of

the Director of PNHZ Park in June, 1999, and, thereafter on consideration of

all materials on record the Director decided to deduct the said sum of

Rs.55,000/- advance taken as travelling allowance from the salary of the

respondent and the fact that the said amount was deducted would be borne

out from the letter dated 3rd November, 1999, read with other documents

discussed above and produced before the learned Tribunal as well as before

us. The entire matter was closed before he was transferred to his parent

organization fourteen years ago, without any charge of misappropriation or

dishonesty or lack of integrity. The proceeding was initiated after

unreasonable and inexplicable delay to enquire into charges which have

become stale by the passage of time. It would cause unbearable mental

agony and distress to the respondent.

Mr. Advocate General was correct in submitting that disciplinary

proceedings cannot be quashed merely on the ground of delay.

However, in deciding whether the Court should exercise its power to

quash the disciplinary proceedings, the nature of charges, the

circumstances surrounding the delay and, the conduct of the parties are

relevant considerations. The court in such a situation is required to arrive

at a conclusion that the circumstances are such that it would not be in

interest of justice to quash the proceeding.

The law on this point may be summarized in the manner following:

(i) The charge sheet or show-cause notice cannot ordinarily be

quashed by the court merely on the ground of delay.

(ii) The court is required to examine the facts and circumstances of

each case by taking into consideration the seriousness, gravity

and magnitude of the charges involved therein.

(iii) In cases relating to embezzlement and fabrication of false record

which are usually done secretly, the court has to take into

consideration in a judicial review that in such cases, even if, the

time is too long to detect such offences, it is not desirable to

quash the charge sheet, the reason being that, it is not easy to

detect those offences and the offender would always try to keep

the information secret and, in the process it is likely to take time

to detect embezzlement and fabrication of record.

(iv) Even a single act of misconduct, if found to be of grievous nature,

having regard to its quality, insidious effect and gravity of

situation in the attendant circumstances, may be a factor where

some delay in initiation of disciplinary proceeding may not be

considered as fatal.

(v) The nature of charges, circumstances surrounding the delay and

conduct of the parties may be such that it would not be in the

interest of justice to quash the proceedings.

(vi) Delayed initiation, irrespective of the length of delay, if likely to

cause prejudice to the delinquent in the form of non-availability

of witness and documents.

The aforesaid considerations are only illustrative and not exhaustive.

The court needs to weigh the nature and gravity of the charges,

circumstances surrounding the delay, conduct of the parties and all relevant

factors involved in the case, both for and against the delinquent employees

and, must reach the conclusion which is just and proper in the

circumstances. Gravity of alleged misconduct is one of the relevant factors

which is to be taken into consideration while quashing the proceeding.

The court is to take into consideration all the relevant factors and to

balance and weigh them to determine, if it is in the interest of a clean and

honest administration, that the disciplinary proceedings should be allowed

to terminate after delay, particularly when the delay is abnormal and there

is no explanation for such delay.

It is in the interest of justice that disciplinary proceedings must be

conducted soon after the irregularities are committed or soon after

discovering irregularities. In the instant case, the irregularities, if any,

happened during 1998-99 and, the writ petitioners were aware of such

alleged irregularities. However, they did not consider it necessary to initiate

any disciplinary proceeding. They did not consider it to be a misconduct.

On the contrary they felt that recovery of the advance amount under the

circumstances would suffice and could be recovered from the monthly salary

of the respondent and the said amounts were, in fact, realized.

Disciplinary proceeding cannot be initiated after lapse of considerable

time as it would not be fair to the officer. As such delay also makes the task

of proving the charges difficult, and is thus, also not in interest of

administration. Delayed initiation of proceeding is bound to give room for

allegations of bias, mala fide and misuse of power. If the delay is too long

and is unexplained the court may well interfere and quash the charges.

However, how long the delay may be considered to be too long always

depends upon the facts of the case and if it appears that such delay is likely

to cause prejudice to the delinquent officer in defending himself, the

enquiry has to be interdicted. (See. State of Punjab vs. Chaman Goyal

reported at 1995 (2) SCC 570 paragraph 9 and Food Corporation of India

vs. V.P. Bhatia, reported at 1998 (9) SCC 131 paragraph 4)

The learned Tribunal in the present instance quashed the charge sheet

upon noticing Bani Singh (supra) with the following observation:

"The aforesaid principal (sic) was followed by the Hon'ble Apex Court in all other cases including us on different occasions. In the instant case, the respondents are also aware of any irregularities of non-refunding the aforesaid amount if any, long 14 years ago, however they have no explanation for such delay in issuance of charge sheet. Therefore in our considered view, the applicant is entitled to get the benefit of the aforesaid judgments, as in our considered opinion, the charge sheet is hopelessly barred by delay and latches on the part of respondents.

Hence the charge sheet dated 19-05-2014 is set aside and quashed. Accordingly the OA is disposed of with the above observations with no order as to cost."

The principles laid down in Bani Singh (supra) were followed in many

decisions including M. V. Bijlani v. Union of India & Ors., reported at

2006 (5) SCC 88, where disciplinary proceeding was initiated five years

after the appellant handed over charge. At that time he admittedly was not

in possession of any document which could be utilized to prove his

innocence.

Applying the aforesaid principles and taking into consideration that the

initiation of departmental proceeding or a protracted disciplinary enquiry

against an government employee should be avoided not only in the interest

of the Government employee, but in the public interest and also in the

interests of inspiring confidence in the minds of the Government employee,

we are of the view that initiation of the disciplinary proceedings after