State Of West Bengal & Ors vs Krishna Chowdhury
2023 Latest Caselaw 5433 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 8 of 2013

                          State of West Bengal & Ors.
                                     Vs.
                            Krishna Chowdhury


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


     For the Respondent               : Mr. Soumya Majumder

Ms. Mayuri Ghosh

Heard on : August 23, 2023 Judgment on : August 23, 2023

DEBANGSU BASAK, J.:-

1. State challenges an order dated August 28, 2012 passed by

the West Bengal Administrative Tribunal in OA-278 of 2010.

2. By the impugned order, the Tribunal quashed the

provisional order as also the final order of punishment

passed as against the private respondent in a disciplinary

proceedings.

3. Learned Senior Advocate appearing for the State/petitioners

submits that, the Tribunal erred in quashing the provisional

order as also the final order of punishment. He submits

that, the provisional order of punishment was quashed on

the ground that it did not contain any reasons. The enquiry

officer exonerated the private respondent from the charges.

He contends that, the disciplinary authorities are entitled to

look into the report of the enquiry officer and come to an

independent finding. In the facts of the present case, the

disciplinary authority, disagreed with the exoneration of the

private respondent by the enquiry officer and, proposed

punishment as against the private respondent on charges

being proved. The disciplinary authority subsequently

passed a final order.

4. In support of the contention that, the disciplinary authority

is entitled to disagree with the findings of the enquiry officer

and come to an independent finding, learned Senior

Advocate appearing for the State/petitioners relies upon

(2000) 1 Surpeme Court Cases 416 ( High Court of Judicature

at Bombay vs. Shashikant S. Patil & Another).

5. Relying upon (1989) 4 Supreme Court Cases 582 ( S.S.

Rathore vs. State of Madhya Pradesh), learned Senior

Advocate appearing for the State/writ petitioners submits

that, the private respondent was not entitled to approach the

Tribunal since, there was an appeal provision under the

service rules. The private respondent did not prefer any

appeal against the final order of dismissal. Therefore, the

bar under the Tribunals Act prevents the Tribunal from

adjudicating on the merits of the case.

6. Learned Advocate appearing for the private respondent

draws the attention of the Court to the provisional order

passed by the disciplinary authority. He submits that, in

view of the last two paragraphs of the provisional order, it

can be justifiably said that, the disciplinary authority was

biased as against the private respondent. The disciplinary

authority disclosed its mind of punishing the private

respondent with an order of dismissal in the provisional

order itself, prior to the private respondent submitting his

response.

7. Learned Advocate appearing for the private respondent

submits that, the original application was filed challenging

the provisional order of punishment prior to the final order

of punishment being passed. Therefore, the plea of the State

that the original application was not maintainable in view of

the ratio of S.S. Rathore (supra) was not available to the

State.

8. A disciplinary proceedings bearing No.54 dated June 1, 2006

was initiated against the private respondent. It was alleged

as against the private respondent that he was married to a

lady with two children being born out of such wedlock.

Thereafter, he entered into a second marriage without

divorcing the first wife. It was alleged as against the private

respondent that, he lived with the second wife as husband

and wife and thereby violated the provisions of West Bengal

Government Servants Conduct Rules, 1959 (Part-1)

Appendix No.6 Rule No.30. Additional charges were also

framed as against the private respondent. The enquiry

officer submitted a report where he exonerated the private

respondent.

9. The report of the enquiry officer was considered by the

disciplinary authority. The disciplinary authority by an

order dated March 3, 2010, disagreed with the view of the

enquiry officer. The disciplinary authority proceeded to

consider the evidence led before the enquiry officer. It

discussed in details the evidence of the prosecution

witnesses. It found that, the defence of the respondent that

the second wife withdrew the allegations/complaint made as

against the private respondent was of no avail. It, therefore,

found to the charges as against the private respondent being

established.

10. The provisional order of the disciplinary authority dated

March 3, 2010, however, proceeded to record that, the

disciplinary authority held the private respondent guilty of

the charge of solemnizing another marriage during the

subsistence of first marriage and proposed dismissal from

service.

11. A final order was passed by the disciplinary authority.

Although, the provisional order of the disciplinary authority

stated that, the respondent would be dismissed from service,

final order of the disciplinary authority punished the

respondent by withholding five annual increments.

12. S.S. Rathore (supra) considers Section 20 of the

Administrative Tribunals Act, 1985 and observes as follows:

"15. In several States the Conduct Rules for government servants require the administrative remedies to be exhausted before the disciplinary orders can be challenged in court. Section 20(1) of the Administrative Tribunals Act, 1985 provides:

"20. (1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances."

16. The Rules relating to disciplinary proceedings do provide for an appeal against the orders of punishment imposed on public servants. Some Rules provide even a second appeal or a revision. The purport of Section 20 of the Administrative Tribunals Act is to give effect to the Disciplinary Rules and the exhaustion of the remedies available thereunder is a condition precedent to maintaining of claims under the Administrative Tribunals Act. Administrative Tribunals have been set up for government servants of the Centre and several States have already set up such Tribunals under the Act for the employees of the respective States. The law is soon going to get crystallized on the line laid down under Section 20 of the Administrative Tribunals Act."

13. In the facts of the present case, the original application

before the Tribunal was filed against the provisional order

dated March 3, 2010 and prior to the passing of the final

order. Therefore, the appeal provisions governing the

service conditions of the delinquent did not become

operative in the facts and circumstances of the present

case.

14. In Shashikant S. Patil & Another (supra), the Supreme Court

observed that, the disciplinary authority is entitled to

dissent from the conclusion of the enquiry officer. It also

observed that, interference in the decision of the

departmental authorities can be permitted while exercising

the jurisdiction under Article 226 of the Constitution if such

authority held the proceedings in violation of the principles

of natural justice or in violation of statutory regulations

prescribed in the mode of such enquiry or if the decision of

the authorities was vitiated by considerations extraneous to

the evidence or merits of the case, or if the conclusion of the

authorities is wholly arbitrary or capricious that no

reasonable person could arrive at such a finding or grounds

similar to the above.

15. In the facts of the present case, the disciplinary authority

discussed the entire evidence led at the enquiry stage and

disagreed with the view taken by the enquiry officer. The

disciplinary authority was entitled to do so. It was required

to issue a show-cause notice to the delinquent to answer as

to the grounds for disagreement with regard to the findings

of the enquiry officer.

16. In the facts of the present case, the disciplinary authority by

the provisional order dated March 3, 2010, not only

disagreed with the view of the enquiry officer but also

expressed its mind with regard to the guilt of the respondent

and the quantum of punishment.

17. To such extent, in our view, the provisional order dated

March 3, 2010 stands vitiated. The subsequent action of

the disciplinary authority being based on the provisional

order dated March 3, 2010 also will stand vitiated.

18. In such circumstances, we are constrained to quash the

provisional order dated March 3, 2010 and all subsequent

orders passed in the disciplinary proceedings as against the

respondent. We clarify that, the disciplinary authority is at

liberty to conclude the disciplinary proceedings afresh from

the stage of the enquiry report. It is expected that the

disciplinary authority concludes the entire proceedings

preferably within a period of three months from the date of

communication of this order.

19. In view of the discussions above, the impugned order of the

Tribunal is set aside.

20. WP.ST 8 of 2013 is disposed of accordingly without any

order as to costs.

(Debangsu Basak,J.)

21. I Agree.

(Md. Shabbar Rashidi, J.)

(AD)