Sri Debasis Chattopadhyay vs Tea Board And Ors
2023 Latest Caselaw 1223 Cal/2

                       In the High Court at Calcutta
                     Constitutional Writ Jurisdiction
                            Original Side

Present:
The Hon'ble Justice Lapita Banerji

                               WPO 153 of 2020
                          Sri Debasis Chattopadhyay
                                      Vs.
                              Tea Board and Ors.

  For the Petitioner            : Mr. Amal Baran Chatterjee, Sr. Adv.
                                  Mr. Chittaranjan Panda, Adv.
                                  Mr. Harisankar Chattopadhyay, Adv.

  For respondent nos.1 & 3      : Mr. Biswaroop Bhattacharya, Adv.

Mr. Victor Chatterjee, Adv.

Mr. A. Sarkar, Adv.

Ms. Deblina Chattaraj, Adv.

   Hearing concluded on          : 21.04.2023.


  Judgment on                   : 19.05.2023.

Lapita Banerji, J.:- The petitioner was an employee of the Tea Board,

working in the capacity of Senior Assistant. The petitioner challenged an Order

of Dismissal dated December 20, 2018 passed by the Disciplinary Authority

and the Order dated August 6, 2019 passed by the Appellate Authority. On

December 14/20, 2016, a Memorandum of Charges/charge sheet was issued

against the petitioner for alleged misconduct, primarily on 2 grounds:

(a) He was absenting himself frequently from official duty since June 1, 2016, without prior intimation and permission; and

(b) He was a habitual late comer and seldom came to the office as per the time schedule.

2. A Reply was given to the Charge sheet on December 26, 2016. In Reply,

the petitioner categorically denied and disputed the Articles of charge. He

stated that the Charge Sheet did not contain clear and unambiguous charges.

The number of days petitioner's late arrival to office and the number of days of

his absence was not indicated therein.

3. In the said Reply, it was maintained that the petitioner's place of

posting/seating in the office was clearly under the CCTV coverage. In the event

the said CCTV footage was provided on and from June 1, 2016 till November

30, 2016, it would appear that the petitioner had not remained in unauthorized

absence for a period of 37 days, as imputed by the said Charge Sheet.

4. The petitioner further contended, that it was perplexing to note that the

respondent/Tea Board sought to allege that the petitioner was present at the

office only for 3 days between June to November, 2016. It was undisputed that

the Tea Board sought to adjust the earned and medical leave of the petitioner

for the purported unauthorized absence which could not be done without

intimation. Repeated requests were made for a complete and detailed chart

with supporting documents of the actual number of days of purported absence

and late attendance from June 1, 2016 to November 30, 2016.

5. The petitioner's case was that, after utilizing the petitioner's services for

the whole day since the time he arrived at office (even if late), the entire day's

salary could not be deducted.

6. After giving his initial Reply on December 26, 2017 the petitioner again

on March 29, 2017 and July 3, 2017 requested the Authorities/Enquiry Officer

to provide the necessary documents without which it would not be possible to

comment or respond to the charges against him. The petitioner reiterated his

request for providing a complete and detailed chart with the actual days of

absence and the actual number of days for late attendance. He requested to be

provided with CCTV footage and a print copy of the biometric system of

attendance.

7. Despite repeated requests, the documents, which the petitioner sought to

rely upon for formulating his defence to the enquiry proceedings, were not

provided to the petitioner.

8. A Second Memorandum of Charges was issued on October 10/12, 2018,

whereby, the petitioner was informed that an Enquiry proceeding was decided

to be conducted against him on a different issue relating to his 'transfer' to

'Coonoor'. The petitioner responded to the said charges by a communication

dated October 25, 2018.

9. Sometime in or around March 2018, the petitioner was sought to be

transferred to Coonoor. The said Order of Transfer was challenged upto

Supreme Court but the same was not interfered with. Thereafter, the

petitioner prayed for voluntary retirement. The same was not acceded to by the

Tea Board and the Memorandum of Charges dated October 10/12, 2018

intimating the decision to conduct enquiry was issued. The same is not the

subject matter of challenge in the present writ petition.

10. Mr. Chatterjee, Learned Senior Counsel appeared on behalf of the

petitioner and argued that the penalty of "dismissal" was passed in violation of

the principles of Natural Justice. When the petitioner prayed for vital

documents necessary for giving a reply to the purported Charge Memo, the

respondent authorities were under an obligation to provide the same. Only

upon receiving the Reply, the Respondent/Employer/Tea Board had to

independently apply its mind and decided whether or not to conduct an

enquiry proceedings. The charges were vague and ambiguous. The petitioner

did not know the 'definite' charges that he was required to respond to.

11. It was then submitted that no employee could be put to double jeopardy.

Once the employer decided to adjust the days of 'leave' of an employee against

his unauthorized absence, then, no disciplinary proceedings could be

conducted on the self-same cause of action.

12. Mr. Chatterjee, cited an Apex Court Judgment reported in (1998) 8 SCC

222 (State of Punjab and Others vs. Bakshish Singh), for the proposition that

once the period of absence from duty is treated to be 'a period of leave without

pay' and the unauthorised absence is regularised and converted into leave

without pay, the charge of 'unauthorised absence' from duty did not survive.

The Apex Court held that the Lower Appellate Court erred by remanding the

matter back to the disciplinary authority having found that the Charge of

'unauthorised absence' from duty did not survive. The matter could not be

remanded back to the punishing authority for reduction of punishment as the

Charge itself did not survive.

13. Next, he relied on a Judgment reported in (2008) 8 SCC 469 (State of

Punjab vs. Dr. P.L. Singla), for the proposition that whenever there is an

allegation of 'unauthorised absence' by an authority, two courses were open to

the employer. The first was to condone the unauthorised absence by accepting

the explanation and sanctioning leave for the period of unauthorised absence.

In such case the misconduct stood condoned. The second was to treat the

'unauthorised absence' as a misconduct, hold an enquiry and impose a

punishment for the misconduct. If the leave is sanctioned post-facto, and the

'unauthorised absence' is condoned, it will not be open to the employer to

thereafter initiate Disciplinary Proceedings, with regard to the said misconduct

unless the employer reserved the right to take disciplinary action, while

sanctioning the leave.

14. Next, he relied on Civil Appeal No. 4059/2015 filed in the Supreme Court

of India (Union of India and Another vs. R.K. Sharma). In that case the

doctrine of proportionality was discussed by the Hon'ble Apex Court for

consideration whether the punishment of "dismissal" from service on account

of absence from duty was proportionate, reasonable and in conformity with

Article 14 and 16 of the Constitution of India. In that case, the Apex Court

considering the period of unauthorised leave was pleased to "compulsorily

retire" the employee from service upon completion of minimum 'qualifying

service of 20 years to earn pension and other retiral benefits'.

15. Next, he relied on a Judgment reported in AIR 1995 Cal 48 (Kalyani

Spinning Mills Limited and Others vs. Smt. Sudha Sashikant Shroff and

Another), for the proposition that no party should be allowed to approbate and

reprobate simultaneously and blow hot and cold at the same time. A party

litigant cannot be permitted to assume inconsistent positions in court to play

fast and loose, to the detriment of his opponent. There can be no dispute to the

said proposition of law.

16. Mr. Bhattacharya, Learned Counsel appearing on behalf of the Tea

Board, submitted that there is no infirmity in the decision making process. In

the Memorandum of Charges dated December 14/20, 2016, the number of

days of unauthorized absence was clearly indicated to be 37 days and number

of days of late attendance was clearly indicated to be 85 days. Therefore, the

petitioner could not urge that the Charge Memo contained vague or arbitrary

charges.

17. A writ petition being W.P.O. No.6191 of 2017 challenging the said Charge

Memo was filed by the petitioner. The said writ petition was dismissed for

default on February 5, 2020. No restoration application was preferred against

such dismissal. The issues contained in W.P.O. No.6191 of 2017 were,

therefore, barred by constructive Res Judicata and cannot be urged in the

present writ petition being W.P.O 153 of 2020.

18. Neither the Disciplinary Authority nor the Appellate Authority committed

any error in dismissing the writ petitioner from service. Upon consideration of

the Reply dated December 26, 2016 (which was a conclusive reply), the Regular

Departmental Enquiry was conducted. The petitioner asked for certain

documents in a roundabout way, which did not in any way affect the

conclusiveness of the Reply.

19. In the Regular Departmental Enquiry, the petitioner was given adequate

opportunity to defend himself. He chose not to cross-examine any of the

witnesses or deal with the documents. When presented with his own response

to show cause regarding absence/late attendance dated November 2016, the

petitioner reiterated his stance taken in December, 2016. In response to show

cause the petitioner admitted that he met with an accident in 2016 and after

that he was unable to avail of public transport during busy office hours. The

petitioner also suffered from Arthritis. The petitioner chose not to respond to

the findings of the Enquiry Officer dated July 18, 2017 despite having an

opportunity. Hence, the final Order of Penalty was passed considering the

materials on record. The Appellate Authority also duly considered the appeal

filed by the petitioner and rejected the same.

20. The standard of proof in a disciplinary proceeding is different from that of

a criminal trial. On a preponderance of probability, the delinquent employee

was to be found guilty and the Disciplinary Authority was not required to prove

the charges, beyond all reasonable doubt. There was no vagueness or

ambiguity in the Charge Memo. Based on an Office Circular dated July 21,

2015, the number of days of unauthorized absence and late attendance were

calculated.

21. Mr. Bhattacharya, relied on a decision reported in AIR 1956 Cal 662

(A.R.S. Choudhury vs. Union of India and Ors). He submitted that a

Departmental Enquiry is not a judicial proceeding and the law and procedure

applicable to the judicial proceedings are not applicable. The strict rules of the

law of evidence are not to be applied. However, the rules of Natural Justice

must still be applied. There is no dispute with regard to the principles

enunciated A.R.S. Choudhury (supra).

22. Next, he relied on a decision reported in AIR 1964 SC 364 (Union of

India vs. H.C. Goel). In that case the respondent/Government Officer was

dismissed from service pursuant to Departmental Proceedings. The High Court

held that purported "misconduct" was not supported by any evidence at all.

The Hon'ble Apex Court held that even though the Government is competent to

differ from the findings of fact recorded by the Enquiry Officer who has been

entrusted with the work of holding a Departmental Enquiry under Rule 55 of

the Civil Services (Classification, Control and Appeal) Rules, but the Appeal

failed on merits because no case was made out for punishing the

respondent/employee. This Court fails to see how H.C Goel's case aids the

Respondent/Tea Board in the present proceedings.

23. Considering the rival submissions of the parties and the materials placed

on record, this Court finds that:

(i) A Show-Cause Notice was issued on November 4, 2016 to the

petitioner.

(ii) A Reply to the Show-Cause Notice was given on November 10,

2016. In the reply to the Show-Cause, the petitioner admitted

that often he was absent from his duty and also attended the

office late due to his physical health condition.

(iii) In the said Reply to show cause, the petitioner also clearly

indicated that such absence/late attendance have already been

adjusted against his accrued leave, to his great loss.

(iv) There is no dispute with regard to the fact that the absence

and/or late attendance was adjusted against the accrued leave

credits of the petitioner.

(v) Being dissatisfied with the Reply to the Show-Cause, a

Memorandum of Charges was issued on December 14/20,

2016. Article 1 of the said Memorandum clearly indicated that

the petitioner was present in the office for 3 days between June

2016 till November 2016. He was absent for 37 days and

attended the office late for 85 days.

(vi) The petitioner replied to the Charge Memo by Reply dated

December 26, 2016. He alleged that the Articles of Charge were

vague. The actual days of absence/late attendance were not

clearly stated as it was impossible that the petitioner was only

present for 3 days during a period of 6 months (between June 1,

2016 and November 30, 2016). He was also paid his salary

during the said period. He prayed for documents like CCTV

footage and a print copy of the biometrics system of attendance

to conclusively draw up a defence to the said Memorandum of

Charges.

(vii) It was indicated in the Reply dated December 26, 2016 that the

area in which the petitioner was posted/seated was within

CCTV coverage. Therefore, it could be clearly demonstrated

from the CCTV footage whether the petitioner was guilty of

unauthorized absence/late attendance for the number of days

that was alleged.

(viii) The respondent authorities failed and neglected to supply the

necessary documents that were considered vital for drawing up

of an effective Reply/defence.

(ix) Two reminders dated March 29, 2017 and July 3, 2017 were

given to the Enquiry Officer for supply of such documents.

Such reminders are not in dispute. No reasons have been given

as to why the said documents were not supplied prior to April 5,

2017.

(x) Without responding to the Reply dated December 26, 2016 and

reminders dated March 29, 2017 and July 3, 2017, the Enquiry

proceedings were conducted and the findings made on July 18,

2017. An internal document dated April 5, 2017 from the

Presenting Officer to the Inquiry Authority is relied upon to

show that old CCTV footage was not available. It is not lost

upon the mind of this Court that show cause was issued on

November 4, 2016 and Charge Memo issued on December 20,

2016 for alleged misconduct between June 1, 2016 till

November 30, 2016, still the authorities did not care to preserve

the CCTV footage for that period, which to the mind of this

Court is a vital piece of evidence that could have clinched the

issue. This is not a case where show cause has been issued long

after the period of unauthorized absence. It is during the course

of unauthorized absence that the show cause was issued.

(xi) From the findings of the Enquiry Officer dated July 18, 2017, it

appears that the documents were not supplied to the

petitioner/charged officer. Only during the course of the

hearing, a chart containing the number of days of late

attendance/absence were shown to the charged

officer/petitioner.

(xii) Mr. Bhattacharya relied on an office Circular dated July 21,

2015. The same is reproduced for convenience.

1. All employees are required to register themselves in the present Biometric Attendance System and mark their attendance as per the following guidelines and stipulations:

a. The working hours of the office is from 09.45 AM to 06.15 PM with half-an-hour lunch break from 01.00 PM to 01.30 PM on all working days.

b. Every employee should attend office positively by 09.45 AM on all working days. Thirty minutes grace time in respect of the arrival time i.e., upto 10.15 AM may be allowed to cover any unforeseen contingencies.

c. If any employee attends office after 10.15 AM, he/she shall be treated as LATE for that day. However, such late attendance upto an hour i.e., upto 10.45 AM on not more than three occasions in a month may be condoned if this is due to unavoidable reasons. Half-a-day's Casual Leave shall be debited against his/her Casual Leave account for each subsequent day beyond three days.

d. Employee attending office after 10.45 AM on any working day shall be treated as ABSENT and in that case, he/she shall apply for admissible leave from his/her leave account.

(xiii) No calculation has been provided in the Charge Memo as to how

the number of days of late attendance led to the deduction of

half a day of casual leave and then to marking of absence. Only

the number of days of unauthorized absence and late

attendance appear from the Charge Memo. The said statement

is a bald assertion without any basis provided as to the

computation of the same. A delinquent employee has to first

understand/comprehend the charges against him before

formulating a defence thereto. The Charge Memo is not only

vague and ambiguous but also suffers from arbitrariness and

highhandedness. Even on a query raised by the Court the Ld.

Advocates appearing for the Tea Board could not satisfactorily

explain the calculation of the number of days of 'unauthorized

absence' in correlation with the 2015 Circular.

(xiv) No reason has been recorded in writing as to the necessity of

conducting the Enquiry proceedings based on an inconclusive

Reply.

(xv) The Disciplinary Authority was under a legal obligation to apply

its mind and come to a finding that it was necessary to conduct

the Disciplinary Proceedings after considering the defence of the

petitioner to the Memorandum of Charges.

(xvi) The Disciplinary Authority acted against the principles of

Natural Justice by withholding the documents necessary for

formulating the defence, causing prejudice and injury to the

petitioner.

(xvii) This Court also finds that during the course of hearing between

March 27, 2017 till May 15, 2017, the petitioner has again

prayed for supply of relevant documents. There is no mention

of such requests/prayers in the findings of the Enquiry Officer

dated July 18, 2017.

(xviii) Furthermore, the Enquiry Officer sought to rely on the part of

the reply dated November 10, 2016 to the Show-Cause dated

November 3/4, 2016, whereby, the petitioner admitted

unauthorized absence/late attendance, but, did not consider

the part where he had stated that his leave credits were

adjusted against such unauthorized absence. The findings of

the Enquiry Officer are completely silent on the said issue and

also in respect of the computation of the days of unauthorized

absence and the days of late attendance translating to

'unauthorized absence' in terms of office Circular dated July 21,

2015.

(xix) A document has to be read as a whole. An employer should not

be allowed to pick and choose a part of the document that is in

his favour and ignore the part of the document which is against

him.

(xx) There is no finding at all as to how the calculation of the late

attendance culminating into the whole day's unauthorized

absence in terms of the Office Circular dated July 21, 2015, has

been arrived at.

(xxi) The petitioner has repeatedly stated that the charges are vague,

suffering from lack of clarity. Even then, the Tea

Board/Employer/Enquiry Officer did not clarify the

computation of the unauthorized absence in accordance with

the 2015 Circular.

(xxii) There is no finding to the effect that the unauthorized absence

or the late attendance culminating into unauthorized absence

was beyond the permissible leave credits of the petitioner.

(xxiii) A person cannot be put in double jeopardy and once the leave

has been adjusted, it could be reasonably inferred that the

unauthorized absence/misconduct is condoned unless it was

intimated to him that the condonation will not be permitted,

prior to such adjustment of leave.

(xxiv) Therefore, this Court holds that the entire initiation/conduct of

the disciplinary proceedings was in breach of the principles of

Natural Justice since the petitioner/delinquent employee was

deprived of the opportunity of drawing up a meaningful

defence/making a meaningful representation. Hence, the

Disciplinary Proceedings were violative of Art 311(2) of the

Constitution of India.

(xxv) The enquiry proceedings were conducted in a high-handed

manner and in colourable exercise of power. Some documents

were only shown to the petitioner during the course of the

hearing but not supplied.

(xxvi) Non-supplying of the documents after the Memorandum of

charges was issued and the petitioner/employee asked for the

same for proper formulation of his defence leads to the entire

Enquiry Proceedings being vitiated. The documents prayed for

by the petitioner were quite relevant and the non-supply of the

said documents before or during the course of the Enquiry

Proceedings without providing any explanation to the petitioner

is a procedural impropriety committed by the Tea board. In the

absence of the said documents the petitioner was deprived of a

reasonable opportunity to formulate his defence. A beneficial

reference may be made in a Judgment reported in 1981 SCC

OnLine Cal 237 (Nipendra Nath vs. Union of India and

Others).

(xxvii) A Judgment reported in (1993) 1 SCC 13 (State Bank of India

and Others vs. D.C. Aggarwal and Another) is relied upon for

coming to a finding that imposition of punishment on an

employee on a material which was not supplied to him could

not be condoned. Procedural fairness is as much an essence of

right and liberty as the substantive law itself.

(xxviii) This Court finds it perplexing that without giving an employee a

proper opportunity to frame his defence on the basis of

vital/relevant documents how the Disciplinary Authority could

come to the finding that an Enquiry was necessary to be

conducted against the employee. In the event, mechanically

and without any application of mind the issuance of

Memorandum of charges automatically leads to conducting of

Enquiry proceedings then there would be no need at all to give

an opportunity to a delinquent employee to submit his defence

to the Memorandum of Charges.

(xxix) Since it is held that the initiation of the disciplinary proceedings

is bad, therefore, the question of whether or not the petitioner

challenged the findings of the Enquiry Officer dated July 18,

2017, is not germane to the issues in the present proceedings.

(xxx) Mr. Bhattacharya's submission with regard to the present writ

petition being barred due to the applicability of the principles of

Res Judicata under Section 11 of the Code of Civil Procedure,

1908 cannot be accepted since in W.P.O. No. 1691 of 2017 only

the Memorandum of Charges/findings of the enquiry officer

were assailed. There was no decision on merits. The said writ

petition was dismissed for default. The final Order of the

Disciplinary Authority and the Order of the Appellate Authority

have been passed after filing of WPO 1691 of 2017. A beneficial

reference may be made to an Apex Court's decision reported in

MANU/SC/0327/2023 (Prem Kishore and Ors vs. Brahm

Prakash & Ors).

(xxxi) In the present writ petition, the Order of the Disciplinary

Authority dated December 20, 2018 and the Order of the

Appellate Authority dated August 6, 2019 have been challenged.

24. In the light of the discussions above, the Order of the Disciplinary

Authority dated December 20, 2018 and the Order of the Appellate Authority

dated August 6, 2019 are set aside and/or quashed.

25. Upon consideration of the facts of the case, this Court is of the view that

no effective purpose will be served by directing re-instatement of the petitioner

in service since he has already reached the age of superannuation. Therefore,

this Court directs the petitioner to be treated as voluntarily retired from his

service of the Tea Board with effect from December 20, 2018 (date of dismissal).

All the retiral dues along with arrears thereon calculated on and from

December 20, 2018 should be disbursed to the petitioner within two months

from date.

26. With the directions aforesaid, W.P.O. No.153 of 2020 is disposed of.

27. All parties to act on the downloaded server copy of this order from the

website.

28. Urgent certified photocopy of this judgment, if applied for, be supplied to

the parties upon compliance of all the requisite formalities.

(Lapita Banerji, J.)

Later:-

A prayer for stay of the Order/Judgment is made by the learned

Counsel appearing on behalf of the respondents/Tea Board.

Such prayer is considered and refused.

(Lapita Banerji, J.)