The State Of West Bengal & Ors vs Sk. Najim Ali
2023 Latest Caselaw 4792 Cal

                                       1


                    IN THE HIGH COURT AT CALCUTTA
                   CONSTITUTIONAL WRIT JURISDICTION
                            APPELLATE SIDE

Present:
The Hon'ble Justice Debangsu Basak
              And
The Hon'ble Justice Md. Shabbar Rashidi

                                 WP.ST 424 of 2012

                        The State of West Bengal & Ors.
                                     Vs.
                              Sk. Najim Ali


     For the State-Petitioners       : Mr. Tapan Mukherjee,
                                                Ld. Sr. Advocate & Ld. AGP
                                      Mr. Pinkai Dhole
                                      Mr. Avishek Prasad


     For the Respondent               : Mr. Abhratosh Majumder,

Ld. Sr. Advocate Mr. Tapash Maity Mr. Rahul Kumar Singh

Heard on : August 7, 2023 Judgment on : August 7, 2023

DEBANGSU BASAK, J.:-

1. The writ petition is directed against an order dated April 27,

2012 passed in RA-02 of 2012 by the West Bengal

Administrative Tribunal.

2. By the impugned order, the Tribunal was pleased to set

aside the disciplinary proceedings and the punishment

awarded therein, as against the private respondent.

3. Learned Senior Advocate appearing for the State-petitioners

submits that, the Tribunal erred in setting aside the entire

disciplinary proceedings. He submits that, the ground for

setting aside the entire disciplinary proceedings was on the

basis of an alleged misconduct of the disciplinary

proceedings.

4. Relying upon (2013) 6 Supreme Court Cases 515 ( Anant R.

Kulkarni vs. Y.P. Education Society & Others) and (2013) 6

Supreme Court Cases 530 ( Chairman, Life Insurance

Corporation of India & Others vs. A. Masilamani), he submits

that, the Tribunal was required to remand the disciplinary

proceedings to the disciplinary authority to be conducted

from the stage from where it stood vitiated. Tribunal erred

in not doing so.

5. Referring to the Police Regulations of Calcutta, 1968 and

particularly to Chapter XIX (Disciplinary Proceedings and

Punishment) Regulation 1 and Regulation 19, learned Senior

Advocate appearing for the State-petitioners submits that,

the disciplinary authority was entitled to award major

punishment if the charges were proved.

6. Learned Senior Advocate appearing for the private

respondent submits that, a major punishment was actually

levied as against his client on the basis of a de novo enquiry

directed to be undertaken. He submits that, the Police

Regulations of 1968 does not allow a de novo enquiry to be

made in a departmental proceedings. Therefore, the entire

disciplinary proceedings stood vitiated. He submits that,

first enquiry report was not accepted by the disciplinary

authority. The disciplinary authority was without

jurisdiction in directing a de novo enquiry to be made.

Consequently, the Tribunal was correct in setting aside the

entire disciplinary proceedings. His client should be

refunded the amount deducted by way of punishment

imposed in the disciplinary proceedings along with

commensurate interest. He points out that, his client was

denied promotion under the Career Advancement Scheme

twice. Such facility should also be restored.

7. Departmental proceedings was initiated as against the

private respondent being departmental proceeding no.140

dated December 20, 2006. The enquiry officer after

completion of the enquiry submitted a report, where the

enquiry officer found three of the charges to be established

as against the private respondent and the other charges to

be not proved.

8. The disciplinary authority, passed an order dated January

29, 2008 disagreeing with the view taken by the enquiry

officer and directed a de novo departmental enquiry to be

made. A departmental enquiry was started afresh and an

enquiry report submitted which the disciplinary authority

accepted by imposing a punishment of reduction of a pay of

Rs.400/-. Appeal was carried against and order of the

disciplinary authority concurring with the punishment

imposed. The private respondent thereafter approached the

Tribunal by way of RA -353 of 2009 which was disposed of

by the impugned order dated December 13, 2011.

9. By the impugned order, the Tribunal set aside the entire

departmental proceedings as against the private respondent.

10. Anant R. Kulkarni (supra) is of the view that, where the

punishment imposed in the disciplinary proceedings is set

aside, then, the Court should remit the case concerned to

the disciplinary authority to conduct the proceeding from the

point it stood vitiated and to conclude the same in

accordance with law.

11. A. Masilamani (supra) is of the following view:

"15. In view of the issues raised by the learned counsel for the parties, the following questions arise for our consideration:

15.1. When a court/tribunal sets aside the order of punishment imposed in a disciplinary proceeding on technical grounds i.e. non-observance of statutory provisions, or for violation of the principles of natural justice, then whether the superior court, must provide opportunity to the disciplinary authority to take up and complete the proceedings from the point that they stood vitiated; and 15.2. If the answer to Question 1 is that such fresh opportunity should be given, then whether the same may be denied on the ground of delay in initiation, or in conclusion of the said disciplinary proceedings.

16. It is a settled legal proposition, that once the court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the court cannot reinstate the employee. It must remit the case concerned to the disciplinary authority for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide ECIL v. B. Karunakar, Hiran Mayee Bhattacharyya v. S.M. School for Girls, U.P. State Spg. Co. Ltd. v. R.S. Pandey and Union of India v. Y.S. Sadhu.)

17. The second question involved herein is also no longer res integra. Whether or not the disciplinary authority should be given an opportunity to complete the enquiry afresh from the point that it stood vitiated depends upon the gravity of delinquency involved. Thus, the court must examine the magnitude of misconduct alleged against the delinquent employee. It is in view of this, that courts/tribunals are not competent to quash the charge-sheet and related disciplinary proceedings, before the same are concluded on the aforementioned grounds."

12. In the disciplinary proceedings initiated as against the

private respondent, an enquiry report was submitted. The

disciplinary authority by an order dated January 29, 2008

did not agree with the enquiry report and directed de novo

enquiry into the proceedings.

13. The de novo enquiry resulted in an enquiry report which was

accepted by the disciplinary authority. Disciplinary authority

by an order dated September 29, 2008 imposed a

punishment as against the private respondent directing that

the pay of the private respondent be reduced at Rs.400/- per

month for a period of five years with immediate effect. The

appellate authority concurred with the disciplinary authority

so far as the quantum of punishment is concerned. The

Tribunal set aside the entire disciplinary proceedings on the

ground that, the Regulations of 1968 does not provide for de

novo enquiry to be made.

14. The disciplinary proceedings stood vitiated on and from

January 29, 2008 when the disciplinary authority directed

de no proceedings to be initiated. Since the de novo

proceedings are not contemplated under the Regulations of

1968, the Tribunal was correct in setting aside the order

imposed in the disciplinary proceedings as against the

private respondent.

15. The Tribunal, however, was required to remit the disciplinary

proceedings to the disciplinary authority from the stage from

where, the disciplinary proceedings stood vitiated, that is,

from January 29, 2008 on the strength of the two decisions

of the Supreme Court being A. Masilamani (supra) and Anant

R. Kulkarni (supra).

16. In such circumstances, we set aside the impugned order of

the Tribunal. We direct commencement of the disciplinary

proceedings from the stage it attained on January 29, 2008

with the order dated January 28, 2008 of the disciplinary

authority being also set aside. All orders subsequent to the

January 29, 2008 in the disciplinary proceedings are also set

aside.

17. So far as the deduction from the pay of the private

respondent concerned, the same will abide by the result of

the disciplinary proceedings.

18. We are informed that, the private respondent was under

suspension as on January 28, 2008. We are also informed

that the private respondent is presently working and is

posted as Inspector, C-company, Reserved Force of Kolkata

Police. We are also informed that, the suspension order

invoked on January 29, 2008 was withdrawn on the passing

of the final order.

19. Since we set aside the final order and since the respondent

is presently working, it would be appropriate to leave the

issue with regard to continuance of suspension as against

the private respondent with the disciplinary authority.

20. Since the disciplinary proceedings are pending for a

considerable period of time, it would be appropriate that in

the interest of justice, the disciplinary authority concludes

the exercise as expeditiously as possible and preferably

within three months from date.

21. WP.ST 424 of 2012 is disposed of without any order as to

costs.

(Debangsu Basak,J.)

22. I Agree.

(Md. Shabbar Rashidi, J.)

(AD)