Calcutta High Court (Appellete Side)
The Hon'Ble Justice vs M. Velumani on 30 August, 2023
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
(APPELLATE SIDE)
Present:
The Hon'ble Justice V. M. Velumani
&
The Hon'ble Justice Rai Chattopadhyay
MAT 576 of 2017
With
CAN 1 of 2017 (Old No: CAN 5575 of 2017)
With
CAN 2 of 2017 (Old No: CAN 5576 of 2017)
Union of India & Anr.
Vs.
Mahendra Kumar
For the Appellants : Mr. Loknath Chatterjee,
: Ms. Sarda Sha.
For the Respondent : Mr. Pratick Dhar,
: Mr. RitwikPattanayak.
Hearing concluded on: 10/08/2023
Judgment on: 30/08/2023
Rai Chattopadhyay, J.
1. Appellants, the Union of India and others, have preferred the
instant appeal to challenge the order of the Hon'ble Single
Judge dated January 18, 2017, in W. P. No 11387 (W) of 2016.
The appellants have challenged the order of the Hon'ble Single
Judge as above on the grounds inter alia that, the same is
misconceived and bad in law, is a result of non-consideration of
and nonapplication of mind to, all the materials on record and
that the same is liable to be set aside.
2. Bereft of any unnecessary details, the factual background of
this case may be summarised in a manner as follows:
The respondent/writ petitioner challenged the following
two orders of the appellant authorities, in the writ petition, i.e,
(i) dated October 3, 2015 and (ii) dated January 15, 2016.
The writ petitioner/respondent was employed as a sub-
inspector (M) of Central Reserve Police Force and at the relevant
point of time was posted at Durgapur Range Head Quarter,
District - Burdwan. He was issued a charge sheet on May 21,
2007. The petitioner was made to face and answer 5 distinct
charges, vide the said charge sheet. He was alleged for the
misconduct that he planned and hatched conspiracy by asking
the recruitment clerk, to prepare some candidates for written
examinations in lieu of accepting money, that he intentionally
concealed the information from his superiors regarding his
knowledge about the questions, set for written examination,
that he failed to maintain absolute secrecy of the official
documents which were eventually found in a place other than
the safe custody, he committed irregularity in processing the
transfer case of executive personnel in bulk and even did not
observe the prescribed criteria by proposing names of ineligible
candidates for such transfer and also that inspite of being
aware of the fact of written complaint by one of the examinees
regarding demand of bribe made to him, the writ
petitioner/respondent did not disclose the fact to his superior
officers.
3. The enquiry officer conducted enquiry and has ultimately come
to the finding vide his report dated February 25, 2009, that the
charges framed against the writ petitioner/respondent were not
proved. The disciplinary authority, however, disagreed with the
findings in the enquiry report as above and a "disagreement
note" dated May 20, 2009, was communicated to the writ
petitioner/respondent. This has prompted the writ
petitioner/respondent to submit a written representation to the
disciplinary authority on June 5, 2009. At the same time, the
respondent/writ petitioner challenged the said "disagreement
note", vide writ petition being W.P.No. 9786(w) of 2009. The
Court directed him in the same, vide order dated June 22,
2009, to submit a fresh representation within a stipulated
period, which the Disciplinary Authority was to consider and
pass necessary order, within the prescribed time limit. However,
before this exercise could be completed, the Disciplinary
Authority issued an order of dismissal of the writ petitioner,
vide memo dated July 13, 2009. Order of dismissal of the writ
petitioner, as above, was challenged by him in an appeal,
presented before the appropriate authority on August 4, 2009.
A representation was also submitted on October 30, 2009.
Appellate Authority dismissed the appeal vide order dated
December 2, 2009 and upheld writ petitioner's punishment for
dismissal. By filing another writ petition being No. W.P.665(w)
of 2010, the present respondent challenged the said order dated
December 2, 2009, before this Court. The Hon'ble Single Bench,
in the said case, set aside the order of dismissal and directed
for reinstatement of service of the present respondent. The
present appellants challenged the order of the Hon'ble Single
Judge in an appeal being FMA No. 1190 of 2013. The Hon'ble
Division Bench gave its nod regarding the order of the Hon'ble
Single Judge and sent back the matter to the Disciplinary
Authority to consider representation of the present
respondent/writ petitioner and to pass a reasoned final order.
No action to comply with the said order of the Hon'ble Division
Bench had prompted the present respondent/writ petitioner to
file a contempt case before this Court, that is, CPAN No. 764(w)
of 2015. It was only after a rule was issued against the
Inspector General of Police, West Bengal Circle, Central Reserve
Police Force, the memo dated October 3, 2015 was issued.
4. By dint of the said order dated October 3, 2015, the concerned
authority has imposed punishment of compulsory retirement of
the present respondent/writ petitioner, from service, with effect
from the date of the memo, i.e, October 3, 2015. Another appeal
was preferred by the respondent, challenging the said order
which was ultimately dismissed vide an order dated January
15, 2016.
5. Those two orders are the subject matter of challenge, in the
present writ petition. The respondent/writ petitioner has prayed
for setting aside of those two orders under challenge.
6. The Hon'ble Single Judge, while disposing of the writ petition
has held in the impugned judgment on the point of legality of
the impugned orders (as mentioned above), that those would be
illegal and liable to be set aside. The Court found it proper to
mould the reliefs sought for by the present respondent/writ
petitioner and directed without interfering into the impugned
orders, that the respondent/writ petitioner would be entitled to
a sum of ₹ 2 lakhs each year, till the date of his superannuation
as per his conditions of service, as monetary compensation. The
court directed that the monetary compensation as above would
be payable from January 1, 2016 and over and above the
benefits that had been extended to him pursuant to the said
orders under challenge in the writ petition. The Court has
stipulated a period of 90 days from the date of receipt of the
copy of the judgment by the present appellants/respondents in
the writ petition, for making payment to the present
respondent/writ petitioner. The Court further directed that
appellant's failure to comply with the order would entitle the
writ petitioner to a relief of reinstatement in the service with full
back wages.
7. The introductory point of argument by Mr. Loknath Chatterjee,
appearing for the appellants would be that the impugned order
is misconceived, erroneous and bad in law and even in
executable insofar as the Hon'ble Single Bench could not have
at the same breath, sustain the orders of the authority under
challenge and also granted yearly compensation to the writ
petitioner/respondent. According to Mr. Chatterjee, the
impugned order of the Hon'ble Single Bench is self-
contradictory, suffers from nonapplication of mind and is liable
to be set aside.
8. The appellant is also aggrieved with the finding of the Hon'ble
Single Judge, that if there be an occasion of non-compliance
and violation of the said impugned order by the appellant, then
the impugned order of compulsory retirement from service of
the respondent and the order of the appellate authority
affirming the same, would stand set aside and the
respondent/writ petitioner would be entitled to reinstatement in
service with full back wages. The arguments made on this on
behalf of the appellant is that, there is no reasonable nexus of
non-payment of compensation with reinstatement in service. A
point has been made out that, grant of compensation even after
upholding the finding of the appellant authority regarding the
commission of guilt by the respondent/writ petitioner, is by
itself delving on the wrong notion that the respondent is
required to be awarded and compensated for violation of any of
his rights. According to the appellant, reinstatement of service
with full back wages in case of any non-payment of the said
compensation would only multiply the magnitude of illegality.
Mr. Chatterjee points out that the respondent/writ petitioner
has never prayed for any relief of grant of compensation and
such an order by the Hon'ble Single Judge is beyond scope of
the writ petition, which cannot be sustained. Mr. Chatterjee
says further that the penultimate and operative part of the
impugned judgment suffers from gross mutual contradictions,
perversity and illegality and that the writ petitioner has never
challenged the finding of the Hon'ble Single Judge upholding
his termination order. Lastly, it has been urged that in a
disciplined force, any act of indiscipline should be handled, in
strictest manner and the appellant authority, in case of the writ
petitioner/respondent, has diligently discharged its duty as
above.
9. Per contra Mr. Pratick Dhar, while representing the
respondent/writ petitioner, has firstly taken this court to the
back drop of the case that is, for the self same incident a total
of 7 persons were chargesheeted. 5 of them have already been
reinstated by the appellant. 1 of the delinquent employees,
amongst those 7 persons chargesheeted, was exonerated in the
enquiry, on the basis of the similar and identical set of
statements. He further informs that "disagreement note" was
issued only to the writ petitioner/respondent and also cares to
mention that the same is only due to malafide and malicious
intentions. It has been submitted that not only the writ
petitioner/respondent has been subjected to discrimination,
gross and substantive, but also his valuable rights under the
law have been jeopardised at the instance of the present
appellants.
10. So far as the merits of the case is concerned, Mr. Dhar has
submitted that the "disagreement note" has been based on the
statements and findings in the preliminary enquiry. According
to him the findings in the preliminary enquiry cannot be relied
on to culminate into the result at the stage of completion of the
full-fledged disciplinary proceedings. He says that the purpose
of a preliminary enquiry is only to the extent to ascertain if a
regular enquiry proceeding under the rules is warranted or not.
The moment the authority takes a decision as to whether or not
a regular enquiry proceeding should be initiated, the utility of a
preliminary enquiry immediately seizes to operate, beyond that
point of time. He has emphasized that it is only illegal and
arbitrary, that even after conducting a disciplinary proceeding,
as per rules, the authority would ignore the findings thereof,
which is based on the evidence and other materials considered
by the enquiry officer during the entire proceeding. To answer to
the challenge thrown by the appellants regarding
respondent/writ petitioner's not challenging the finding of the
Hon'ble Single Bench regarding sustaining his compulsory
retirement, Mr. Dhar says on behalf of his client that the
appellants could not successfully rely on any action by his
client, to substantiate its own case. According to Mr. Dhar the
appellants have to succeed on the merits of its own case.
Respondent's not asking for such a relief should not strengthen
appellant's case.
11. Mr. Dhar has further answered the point raised on behalf of the
appellant regarding the grant of relief of compensation to be
beyond the scope of the writ petition, by saying that a Court of
equity is designated to deliver complete justice. According to
him, in that endeavour, moulding reliefs must be a very basic
and inherent add-on to the Court's power. He says further that
but for the same the hands of a Court of equity would be tied
and not free to do complete justice. On that perspective,
according to Mr. Dhar there is no absurdity or illegality
committed by the Hon'ble Single Bench, in granting
compensation, which might not have been prayed, in specific
terms, by the respondent/writ petitioner.
12. On merits, Mr. Dhar has further submitted that in the
disciplinary enquiry proceeding against the present respondent,
statement of all the witnesses before the enquiry officer are
same and identical like that in case of other similarly placed
delinquents, as mentioned above. It has been submitted that,
therefore, on the basis of the said same and identical
statements, no differential treatment could have been lawfully
enforced against the present respondent. As a matter of fact,
according to the respondent the enquiry officer could not have
come to a different finding, than that of the other delinquent
person exonerated earlier, on the basis of the said same and
identical evidence. Mr. Dhar says that in this way his client has
been subjected to gross discrimination and infringement of his
legal rights.
13. The last submission of Mr. Dhar is that there is no cogent
reason or valid ground as to why this appeal Court should
interfere with the impugned order of the Hon'ble Single Judge
dated January 18, 2017, in W. P. No. 11387 (W) of 2016. As
such, he says that the appeal may be dismissed and the
impugned order as above may be affirmed by this court.
14. The operative part of the impugned judgment dated January 18,
2017, may be divided in a manner as follows:
Firstly, the Court has directed that the orders under
challenge in the writ petition, being orders dated October 3,
2015 and that dated January 15, 2016,to be illegal and liable to
be set aside. To this part there has been no challenge or contra
argument by any of the parties in the appeal.
Secondly, the Hon'ble Single Bench thereafter, has
moulded the relief claimed in the writ petition for the reason
that in view of the seriousness of the charges levelled against
the respondent/writ petitioner, for which the employer may not
any further have faith and confidence in the writ petitioner.
That may not be conducive for a healthy work atmosphere;
Thirdly, thus the Court has not allowed writ petitioner's
prayer for reinstatement in service. Instead, the Court directed
that he shall be paid a sum of Rs.2,00,000/-, each year as
monetary compensation, from a certain date till the date of
superannuation of the writ petitioner. It has been directed that
such monetary compensation would be allowed to the writ
petitioner over and above the benefits extended to him pursuant
to the impugned order dated October 3, 2015;
Next is that in case of failure or negligence of the present
appellants to make payment of compensation within the
stipulated time, the order of compulsory retirement of the writ
petitioner/respondent from service and the appellate order
affirming the same, would stand set aside and then the writ
petitioner would be entitled for reinstatement in service with full
back wages.
15. By moulding the prayer of the writ petition, thus, the Hon'ble
Single Bench has granted relief to the respondent/writ
petitioner.
16. Since the finding of the Hon'ble Single Judge regarding illegality
of the two impugned orders as above, has not been countered in
this appeal, there is no necessity for this Court to go beyond the
same. Thus such finding is upheld.
17. The challenge of the appellants in this appeal, on merits, rests
on the grounds that the "disagreement note" dated May 20,
2009 is legible to be sustained, particularly on the ground that
the reports of the preliminary enquiry contradicted the report of
the enquiry proceedings, to the detriment of the rights and
interests of the appellants. It is submitted that whereas in
preliminary enquiry report sufficient materials transpire to
suggest writ petitioner's involvement in the alleged misconduct,
the enquiry report in the disciplinary proceeding, which was
based on the statement of the witnesses, finally demolished the
evidence collected during preliminary enquiry but found onlythe
opposite. None of the witnesses supported authorities'
allegations and thus finally the writ petitioner/respondent was
exonerated in the disciplinary proceedings. According to the
appellants, in view of the report of the preliminary enquiry as
well as the enquiry in the disciplinary proceedings, it clearly
transpire that the final verdict of the enquiry officer in the
disciplinary proceeding is flawed on the basis of untrue
statements by the witnesses, motivatedly recorded. There has
been, however no contradiction to the well acceptable argument
advanced by Mr. Dhar on behalf respondent/writ petitioner, on
this aspect, that the report of the preliminary enquiry virtually
ceases to have any force after authority takes a decision on the
basis on the same to proceed for a full fledged disciplinary
enquiry proceeding. The law is well settled that, a preliminary
enquiry to any of the charges alleged against any of the
employees would be for the purpose of ascertaining if there is
any substantivity into the allegations levelled against him. A
preliminary enquiry is not even mandatory or compulsory. The
moment the preliminary enquiry report facilitates with the
relevant information to the authorities regarding necessity to
proceed further against any delinquent employee for proof of
charges levelled against him, the purpose of such enquiry would
be accomplished. A preliminary enquiry would try to determine
whether there are grounds to prosecute the person against
whom allegations have been made, in other word, its purpose
terminates upon the authority determining if allegation is
baseless altogether, or so substantive that a formal procedure
should be adopted as per rules, to prove the charges. Thereafter
the employer would proceed to conduct an enquiry by
appointing enquiry officer, examining and cross examining
witnesses in terms of the applicable rules and regulations and
in compliance with the principles of natural justice. The result
of the proceedings and the report of the enquiry officer would
depend on the deposition and materials collated during the
period of the main enquiry proceeding itself and not as per any
material or statement obtained during preliminary stage, unless
the same is also relied on later. The employer would not be at
liberty, according to its own wish and whims, after initiation of
a disciplinary proceeding as per rules applicable, to relate back
to the preliminary enquiry and its report, for its final decision,
as the report of the enquiry officer, in the disciplinary
proceeding has exonerated the delinquent, against all the
imputation and alleged charges brought by the authorities,
against the delinquent employee. This would only lead to gross
arbitrariness.
18. Alleged misconduct of the respondent/writ petitioner, as
transpired in the preliminary enquiry report is the ground for
the authorities to record a "disagreement note" as well as
imposing punishment to him. Rule of law would require the
authorities to afford the respondent an opportunity of hearing
and their compliance with the principle of natural justice, so far
as the report of preliminary enquiry is concerned, to ultimately
rely on that as a foundation of punishment. Unfortunately in
this case excepting blatantly disagreeing with the report of the
enquiry officer in the disciplinary proceeding, the punitive
measures against the respondent have been announced without
affording him any opportunity to defend himself, so far as the
report of the preliminary enquiry is concerned. It would not be
out of place to mention that a copy of such report has not even
been served upon the respondent, before the authorities relied
on the same as the basis of the punishment imposed. This
Court is inclined to refer to a judgment, that is, Wiseman vs.
Borneman reported in1971 AC 297. It was held that :-
"as to procedural fairness where preliminary inquiries are
conducted (See 5th Ed., 1995 (page 491, para 10.027) that the
question of "proximity between investigation and act or decision"
depends on the degree of proximity so far as the person affected
claiming a right of hearing is concerned. Court says:Thus, a
person empowered or required to conduct a preliminary
investigation with a view to recommending or deciding whether a
formal enquiry or hearing (which may lead to a binding and
adverse decision) should take place, is not normally under any
obligation to comply with rules of fairness (Beetham vs. Trinided
Cement Co. 1960 A.C.. 132; Medical Board of Queens Land vs
Byme College of Physicians, ex P Samuels (1996) 58 D.L.R.(2ND)
622; Re; Drummoyne M.C. (1962). S.R. (N.S.W.) 193. But he may
be placed under such an obligation if his investigation is an
integral part of a process which may terminate in action adverse
to the interest of a person claiming to be heard before him.
(Wiseman vs. Borneman 1971 AC 297). Re:All General Canada
and Canadian Tabacoo Manufacturers' Council (1986)"
19. According to the submissions of the appellant, the relief granted
to the writ petitioner/respondent has been beyond scope of the
writ petition, in so far as the petitioner has never prayed for any
relief of grant of compensation till the time of his actual
superannuation. The Court of equity is ordained and
designated to confer complete justice. Nothing would prevent
the Court to grant an appropriate relief, as it thinks fit and
proper against the touch stone of the particular facts and
circumstances of a case, excepting that being tainted with
illegality, perversity or arbitrariness. The powers conferred
upon the Court under Article 226 of the Constitution of India is
not limited to the scope and bounds of the prayers of the writ
petition only. The scope is of much wider amplitude. The
extraordinary power under Article 226 of the Constitution can
well be exercised by the High Court to secure the ends of
justice. In doing so, unless any patent and palpable error or
illegality or any perversity creeps into the order of the Court,
there would not be any plausible ground to challenge propriety
of such an order.
20. The finding of the Hon'ble Single Bench as regards the
impugned two orders, dated October 3, 2015 and dated
January 15, 2016,is of illegality and non-maintainability of the
same. However, the grievance of the writ petitioner has been
mitigated by granting him some other relief, than prayed for.
Appellants question that sustenance of the punishment and
also granting relief cannot prevail side by side. Firstly the
appellants are committing error to perceive that impugned
orders in the writ petition are sustained by the Court. There is
no ambiguity or uncertainty regarding the decision of the Court
about illegality of the orders under challenge in the writ
petition. It naturally and undeniably flows to the conclusion
that the order of compulsory retirement of the respondent is
now nixed and set at naught by the Court. It shall not be out of
place to reiterate that the Hon'ble Single Judge's findings of
illegality of the said orders has not been questioned in this
appeal. After holding the order under challenge as illegal, now it
is for granting relief to the petitioner. Compulsive re-induction
of the respondent/writ petitioner in service might not be
appropriate for the work atmosphere of the organization, so far
as the relationship of him with his authority, is concerned. The
parties have been entangled in litigation over this solitary issue,
since the year 2007. It is anybody's guess that they may not
any further be compatible with each other in a relationship of
master and servant. In that event a prudent Judge would only
think of prioritising the collective wellbeing than circumscribing
to the relief only of reinstatement in service of the
respondent/writ petitioner. After prolonged years of strainous
and wreaking legal battle, his returning back to the force may
not be convivially accepted by the authorities. It's about the
coherence and congeniality in the work atmosphere than any
compulsive compliance of the Court's order, which might have
concerned the Hon'ble Single Judge and thus prompted him to
mould the relief to be granted to the respondent/writ petitioner.
It is not an acceptable argument on behalf of the appellants,
that the findings of the Hon'ble Single Judge are the result of
non-application of mind and the directions are ultimately
contradictory to each other. Illegality of the impugned orders
and grant of moulded reliefs to the writ petitioner, which
originally did not find place in the writ petition, are not to be
separately looked into, but are only interlinked through a bridge
of well thought of, reasonable and practical consideration of
probable subsequent outcome, on the basis of the fact situation
of the particular case.
A judgment of the Hon'ble Supreme Court reported in
1981 (3) SCC 528 (B.R. Ramabhadriah vs. Secretary, Food &
Agriculture Department, Andhra Pradesh &ors.) may be
mentioned, where it was held that Court should in the interest
of justice suitably mould the relief in a writ petition under
Article 226 of the Constitution of India. It was observed that
the endeavour of the Court should be to remedy an injustice
when it is brought to its notice rather than deny relief to an
aggrieved party on purely technical and narrow procedural
grounds. It was emphasized that the Court was not powerless
to grant a relief by departing from that has been prayed in the
writ petition for the purpose of rendering substantial justice.
Court's power to exercise judicial discretion in moulding
relief in a case under Article 226 of the Constitution of India
has again been upheld by the Hon'ble Supreme Court in the
judgment of Ranu Hazarika & Ors. Vs. State of Assam &Ors.
reported in 2011 (4) SCC 798, though at the same time the
Hon'ble Court has used the words of caution that such a
discretion may not be exercised to perpetuate and encourage
any illegality.
Moulding relief in view of the particular facts and
circumstances of the case by the High Court has been held to
be an approach of the High Court unquestionable and
consequently affirmed by the Hon'ble Supreme Court, in the
judgment of State of Uttar Pradesh & Ors. Vs. Dinesh Singh
Chauhan reported in 2016 (9) SCC 749.
Hence, it is found that by moulding the relief of the
respondent/writ petitioner or by granting compensation to him
for a particular period of time along with other applicable
benefits, the Hon'ble Single Bench has not committed any
exaggerated exercise of the power vested in it by law. As such
the same cannot be held to be palpably perverse but only
maintainable and thus upheld.
21. The Hon'ble Single Judge has heavily relied on the evidence
brought on record during the disciplinary proceedings and very
rightly so. The finding of the Hon'ble Single Bench that "apart
from the statements recorded during the preliminary enquiry,
there was nothing substantial on the record of the regular
enquiry to hold the petitioner guilty", holds good in the light of
the facts and circumstances of the present case.
22. The order impugned dated January 18, 2017, being thoroughly
based on proper appreciation of the materials on record and
also the facts and circumstances of the case and supported by
the settled provision of law, this Court finds no palpable
illegality or even irregularity as to the same to warrant any
interference. Prayer of the appellants is dehors merit and
should fail.
23. The appeal being MAT 567 of 2017 is dismissed along with CAN
1 of 2017 (Old No: CAN 5575 of 2017) and CAN 2 of 2017 (Old
No: CAN 5576 of 2017). It is further directed that the appellants
shall immediately pay all the arrear amount of money, in
accordance with the order of the Hon'ble Single Bench, within 4
weeks, failing which the respondent/writ petitioner shall be
entitled to be reinstated in service immediately thereafter.
24. Urgent photostat certified copy of this judgment, if applied for,
be given to the parties, upon compliance of requisite formalities.
I Agree,
(Rai Chattopadhyay, J.) (V.M Velumani, J.)
