Abhijit Kumar Talapatra vs State Of West Bengal And Others
2022 Latest Caselaw 3100 Cal

                      IN THE HIGH COURT AT CALCUTTA
                     CONSTITUTIONAL WRIT JURISDICTION
                               APPELLATE SIDE

Present:

The Hon'ble Justice Moushumi Bhattacharya

                           IA No.: CAN 1 of 2021

                                     in

                             WPA 9813 of 2018

                          Abhijit Kumar Talapatra

                                    Vs.

                       State of West Bengal and Others

                                    With

                             WPA 3508 of 2022

                          Abhijit Kumar Talapatra

                                    Vs.

                       State of West Bengal and Others



For the Petitioner                  : Mr. Debasish Saha, Adv.
                                      Mr. Moniruzzaman, Adv.


For the State                       : Mr. Swapan Kumar Datta, Adv.
                                      Mr. Tapas Kumar Dey, Adv.


For the W.B.S.U.                    : Mr. Ashok Banerjee, Adv.
                                      Mr. Santanu Kr. Mitra, Adv.
                                      Mr. Amartya Pal, Adv.


Last Heard on                       : 18.05.2022.

Judgment on                         : 08.06.2022.
                                        2


Moushumi Bhattacharya, J.

1. The writ petitioner prays for setting aside of an Enquiry Report dated

23.3.2018 and for allowing the petitioner to participate in the enquiry

proceedings upon reopening the enquiry once again.

2. The impugned Enquiry Report dated 23.3.2018 concludes that all the

21 charges levelled against the petitioner, who was the Controller of the

Examinations of the University at the relevant point of time, have been

established in the enquiry on an unconditional and voluntary admission of

the charges by the petitioner (Charged Officer) on repeated occasions. The

petitioner was suspended by the University by an order dated 3.3.2017 in

contemplation of a disciplinary proceeding.

3. Learned counsel appearing for the petitioner seeks setting aside of the

Enquiry Report on several grounds. Counsel submits that the disciplinary

authority deliberately delayed the enquiry proceedings and failed to produce

the documents which the petitioner asked for. Counsel submits that the

petitioner replied to the Enquiry Report by denying the findings of the

Enquiry Officer and requested the Vice-Chancellor of the University to

reopen the enquiry. It is further submitted that the petitioner suffered from

a mental condition at the relevant point of time and was therefore not in a fit

mental state at the time of admitting to the charges. Counsel also submits

that the Enquiry Officer prevailed upon the petitioner to admit to the

charges and plead guilty of the alleged wrong doing.

4. Learned counsel appearing for the West Bengal State University places

documents to show that the petitioner was given every opportunity to

present his defence and that there was no breach of the principles of natural

justice. Counsel submits that the disciplinary authority could not take a

final decision on the Enquiry Report by reason of the pendency of the writ

petitions which were earlier filed by the petitioner. Counsel disputes that the

petitioner suffered from any mental condition at the relevant point of time.

5. Learned counsel appearing for the State supports the stand of the

University in that the petitioner voluntarily admitted to the charges levelled

against him and that the petitioner participated in the enquiry proceedings

at every stage.

6. This Court has considered the material on record and the

submissions made on behalf of the parties. The documents, which are

germane to the matter, are being briefly described. The Memorandum of

Charges dated 31.7.2017 indicates that the petitioner, who was the

Controller of the Examinations of the University, gave assurance to various

students for enhancing their marks and permitted students to appear in the

examination on the basis of provisional Admit Cards without photographs of

the students. The petitioner thereafter was responsible in withholding the

results of the students on the pretext that such cases could not be

entertained after the lapse of one and half years. The petitioner has also

been charged of issuing provisional mark-sheets without following the

process of re-evaluation or scrutiny which is against the rules of the

University. There are a total of 21 charges of serious nature primarily of

issuing mark-sheets to students without a proper re-evaluation or scrutiny.

The petitioner responded to the charges by way of a detailed letter. An

Enquiry Officer was appointed on 17.10.2017. The petitioner thereafter

participated in the hearing conducted by the Enquiry Officer; there were at

least 8 hearings.

7. The 6th hearing conducted on 8.3.2018 is important. The record

shows that the petitioner unconditionally pleaded guilty before the Enquiry

Officer and submitted his plea of guilt to the Enquiry Officer which was

marked as X-4. The record further shows that the petitioner/Charged

Officer not only pleaded guilty to the charges levelled against him

unconditionally but also expressed his desire to resign from the service of

the University. The Enquiry Officer, in fact, after examining the entire

situation, requested the Charged Officer/petitioner to reconsider his

pleading of guilt by way of abundant caution. Sub-clause (ii) of the record of

the 6th hearing held on 8.3.2018 indicates that the consequence of pleading

guilty was explained to the petitioner in detail together with the fact that the

disciplinary authority may issue suitable punishment against the petitioner

on the charges being established. The relevant paragraph of this record of

the 6th hearing is set out below.

" The charged officer still sticks to his decision of pleading guilt unconditionally. However, his letter of pleading guilt dated 08.03.2018 is kept in the file without taking any final decision by the Enquiry Officer. The charged officer was once again advised to rethink the issue and to submit his considered final decision on 14th March, 2018 (i.e. after five days) before the Enquiry Officer. If the charged officer again pleads guilty on the next date, the same would be accepted."

8. The record of the 6th hearing was corroborated by the petitioner by a

letter dated 8.3.2018 in which the petitioner states that after going through

the charge-sheets and copies of the documents which have been supplied to

the petitioner and the detailed analysis of the case,

"..... as the then Controller of the Examination, I cannot evade my moral responsibilities for the mismanagement and the un-toward incidents that happened in the University during my tenure.

Hence, considering all aspects, I plead guilty to all the charges levelled against me vide charge sheet issued under Memo No. WBSU/VC/1021/17 dated 31.07.2017, unconditionally."

9. The petitioner again reiterated his stand by a letter dated 21.3.2018

with the following words "I am again pleading guilty to all the charges

levelled against me vide charge sheet issued under Memo. No.

WBSU/VC/1021/17 dated 31.07.2017, unconditionally and without any

coercion, assuming full moral responsibility. My acceptance of guilt may

kindly be considered as totally voluntarily and may kindly be accepted." The

Enquiry Officer, based on the above, records at the 8th hearing held on

21.3.2018 that the petitioner attended the hearing on 21.3.2018 and once

again pleaded guilty to all the charges unconditionally and has also given a

written declaration on the aspect which is kept in the file and marked X-5.

The Enquiry Officer accordingly accepted the plea of guilt of the petitioner.

The University thereafter by a letter dated 23.3.2018 directed the petitioner

to submit his representation to the Enquiry Report.

10. The impugned Enquiry Report records all the relevant facts

particularly the petitioner pleading guilty to all the charges during the

enquiry on 8.3.2018 and 21.03.2018. The petitioner also gave the voluntary

admission of guilt in writing which is made part of the enquiry records. The

Enquiry Report further records that the petitioner was duly cautioned and

made aware of the consequence of pleading guilty but continued to admit to

the charges without any provocation or coercion. The conclusion of the

Enquiry Report is set out below.

"Finally, after going through all the records, documents, submissions and detailed day- to-day proceedings, I find that all the 21 charges levelled against Sri A.K. Talapatra, Controller of Examination (US) through charge sheet issued vide Memo No. WBSU/VC/1021/17 dated 31.3.2017 of the Vice-Chancellor & the Disciplinary Authority have been duly established in the enquiry on specific unconditionally and voluntarily admission of charges and pleading guilty by the Charged Officer on repeated occasions during the enquiry."

11. The change of stance of the petitioner came for the first time on

9.4.2018 in a letter to the Vice-Chancellor of the University. In the said

letter, the petitioner states that the petitioner assumes moral responsibility

since the petitioner was at the helm of the Examinations Department of the

University but denied any involvement in the alleged malpractices. The

petitioner specifically denied ever having taken any form of graft from any

student and guardian in exchange for issue of "fake documents". The

petitioner repeats this new-found absence of guilt in a second letter to the

Vice-Chancellor dated 4.6.2018. In this letter, the petitioner states that the

petitioner signed the letter of 8.3.2018 (pleading his guilt) on the instruction

of the Enquiry Officer and that this letter was drafted by the Enquiry Officer

for the purpose of holding the petitioner guilty. The petitioner states, for the

first time, that the petitioner had a "mental disorder(s)" at the relevant point

of time and the letters of 8.3.2018 and 21.3.2018 should thus be

withdrawn. The petitioner denied all the charges levelled against the

petitioner.

12. The relevant facts which have been brought to the notice of the Court

indicate that the petitioner unconditionally pleaded guilty of all 21 charges

levelled against him, not once, but on repeated occasions. The petitioner

even recorded his stand in writing which were made part of the enquiry

records. The Minutes of the enquiry further indicate that the petitioner

assumed full moral responsibility for the wrong doings including that of

issuing false mark-sheets and allowing students to sit for examinations on

the basis of provisional Admit Cards. The Minutes also show that the

petitioner was made fully aware of the consequence of such admission of

guilt but stuck to his stand nonetheless. The documents show that the

statements made by the petitioner were voluntary and without any

provocation or coercion from any other person including the Enquiry Officer.

The sudden and belated change of stand is therefore suspicious and

unwarranted.

13. On 9.4.2018, the petitioner continued to assume moral responsibility

of the matter but denied taking any form of undue favour from any student

and guardian in exchange for documents. There is no mention of any mental

condition in this letter. The aspect of the petitioner not being mentally fit

was brought to the notice of the Vice-Chancellor after two months on

4.6.2018 which is then made basis for withdrawing the two letters of guilt

dated 8.3.2018 and 21.3.2018. The petitioner also, for the first time, levels

serious charges against the Enquiry Officer in connection with the latter

drafting the letter of guilt and misleading the petitioner to admit moral

responsibility. Curiously enough, the petitioner had sufficient opportunity to

change his stand of pleading guilty and to bring his mental condition on

record while participating in the enquiry proceedings which commenced

from October/November, 2017 and continued till 21.3.2018. The petitioner

did nothing of the sort and continued to take full moral responsibility of the

wrong doings in the University at the relevant point of time. The petitioner

has not been able to discharge the onus as to why the unconditional and

voluntary admission of guilt which the petitioner made in sound mind is to

be set aside on the sudden reversal of stand after conclusion of the enquiry

proceedings and the Enquiry Report made pursuant thereto. There is also

no evidence on record to prove that the petitioner was undergoing treatment

for a mental condition at the relevant point of time. This Court is hence not

inclined to reopen the enquiry proceedings or to interfere with the same.

14. In Jagdish Prasad Saxena vs State of Madhya Bharat, AIR 1961

Supreme Court 1070; the Supreme Court found that the petitioner before it

was not given any reasonable opportunity of meeting the charge framed

against him and was entitled to such under Article 311(2) of the

Constitution. This case does not assist the petitioner since the petitioner in

the present case participated in the enquiry and was given repeated

opportunities to present his defence. On the other hand, in Employees' State

Insurance Corporation vs A.V. Tungare, a Division Bench of the Bombay High

Court relied on an unconditional admission in unequivocal terms by the

Charged Officer to hold that the Enquiry Officer cannot be faulted in the

facts of the case. This Court also agrees with the proposition advanced in

State of Rajasthan v Ganeshi Lal; AIR 2008 Supreme Court 690 where in the

words of Lord Denning, "each case depends on its own facts and a close

similarity between one case and another is not enough because even a single

significant detail may alter the entire aspect, in deciding such cases....."

Section 58 of the Indian Evidence Act, 1872, also comes to the aid of the

respondent University; in that no fact needs to be proved in any proceedings

where the parties themselves or through their agent agreed to admit by any

writing, before or at the hearing or by any prevalent rule of pleading, they

are deemed to have admitted to certain facts.

15. In view of the above reasons, this Court fails to see any merit in the

writ petition for setting aside the impugned Enquiry Report or interfering

with the findings contained in the same. The University and/or disciplinary

authority is directed to complete the disciplinary proceedings based on the

Enquiry Report within a period of 3 months from the date of communication

of this judgment, if not already done. WPA 9831 of 2018 is accordingly

dismissed without any order as to costs.

16. Learned counsel appearing for the petitioner prays for stay of the

judgment. Considering the facts of the case, the prayer for stay is refused.

WPA 3508 of 2022

17. The petitioner prays for a direction on the University to continue the

subsistence allowance of the petitioner till the date of retirement, namely, till

the petitioner attains the age of 65 years on 31.7.2026.

18. Counsel submits that the petitioner is entitled to subsistence

allowance and comes within the scope of a Notification dated 24.2.2021

issued by the Department of Higher Education, Government of West Bengal

by which the retirement age of certain officials of State-aided Universities

has been enhanced to 65 years.

19. The petitioner was admittedly suspended by an order dated 3.3.2017

in contemplation of disciplinary proceedings. It is not in dispute that the

petitioner has drawn subsistence allowance since the date of his suspension

i.e. from 3.3.2017 till October, 2021. The petitioner complains that the

authorities suddenly stopped payment of subsistence allowance to the

petitioner from 1st November, 2021 without any basis.

20. The petitioner is presently 61 years of age.

21. The respondent University opposes the relief sought for.

22. Upon pursuing the Notification dated 24.2.2021 of the Department of

Higher Education, Government of West Bengal, there is no doubt that the

said Notification applies to the petitioner. The said Notification pertains to

the Registrar, Controller of Examinations, Inspector of Colleges and various

other persons of State-aided Universities having continuous teaching

background/experience of minimum 10 years. The retirement age of these

persons have been enhanced to 65 years with effect from the date of

issuance of the Notification. The petitioner was the Controller of

Examinations of the University as on the date of the Notification and fulfils

the conditions for being eligible for the benefit given in the Notification,

which would also be evident from a letter of the University to the petitioner

dated 29.11.2010 confirming the petitioner service in the position of the

Controller of Examination with effect from 20.11.2009. There is no reason

therefore for the respondents to stop the subsistence allowance of the

petitioner from November, 2021. The respondents, including the West

Bengal State University, are therefore directed to continue the subsistence

allowance of the petitioner till the petitioner's date of retirement, i.e., on the

petitioner attaining 65 years of age on 31.7.2026. This direction will be

subject to the result of the disciplinary proceedings and the decision taken

by the disciplinary authority. The petitioner shall also be entitled to the

arrears of the subsistence allowance from the date on which the subsistence

allowance was stopped till the date on which the subsistence allowance

would resume pursuant to this judgment. There shall be no further delay in

the payment of subsistence allowance to the petitioner in accordance with

the applicable Notification. The payment of subsistence allowance should

start within a fortnight from the date of this judgment and continue till the

petitioner reaches the age of superannuation i.e. 65 years of age or till the

order passed by the disciplinary authority. WPA 3508 of 2022 is allowed and

disposed of in terms of the above.

23. All connected applications filed with the writ petitions are disposed of.

Urgent Photostat certified copies of this judgment, if applied for, be

supplied to the respective parties upon fulfilment of requisite formalities.

(Moushumi Bhattacharya, J.)