Calcutta High Court (Appellete Side)
Sri Samaresh Das vs Union Of India & Ors on 19 September, 2023
19.09.2023 IN THE HIGH COURT AT CALCUTTA
DL-8 CONSTITUTIONAL WRIT JURISDICTION
(PP) APPELLATE SIDE
WPA 20338 of 2023
Sri Samaresh Das
Vs.
Union of India & Ors.
Mr. Achin Kumar Majumder,
Ms. Ananya Adhikary
....for the petitioner.
Mr. Sanjit Kumar Ghosh,
Mr. Kushi Prasun Chatterjee
....for Union of India.
Mr. Majumder, learned counsel appearing on
behalf of the petitioner challenges the memo of charge
dated July 9, 2023. He submits that the disciplinary
authority has proceeded with the closed mind relying
on the language in which the charge sheet has been
framed. Furthermore, he submits that the petitioner
should have been allowed to get a defence friend of a
rank of an Assistant Security Commissioner (ASC)
since the fact finding authority was one Vivek Kumar
who is holding the post of Assistant Security
Commissioner. He submits a defence friend from the
post of a Sub-Inspector cannot match the prosecution
witness who is holding the post of ASC.
On behalf of Union of India, written instructions
are submitted. Such written instructions contain the
minutes of the disciplinary proceedings held on
August 31, 2023. Such written instructions are
retained with the records.
It appears from the said written instruction that
at the request of the petitioner made on August 7,
2023, at the first sitting of the disciplinary authority
the Enquiry officer (EO), one B. R. Sant (Inspector)
was changed and one Sachindra Digi, ASC, was
nominated as the EO to conduct the disciplinary
proceedings against the petitioner. The petitioner has
accepted the said EO. Furthermore, the petitioner
agreed to accept one Dharambir Kumar, ASI as his
defence friend to conduct the proceedings in favour of
the petitioner.
Mr. Majumder, relies on a judgment reported in
(2010) 13 SCC 427 (Oryx Fisheries Private Limited
vs. Union of India Ors.) to contend that at the stage
of show cause, the person against whom the
disciplinary proceedings are conducted must be told
of the charges against him, so that he can take his
defence and prove his innocence. The authority at
the time of issuing the charge sheet cannot, instead of
telling him the charges, confront him with definite
conclusion of alleged guilt. In the event the same is
done, the entire proceedings initiated by show cause
shall get vitiated due to unfairness and bias and
subsequent conduct of the proceedings will be an idle
ceremony. The functioning of a quasi-judicial
authority should be conducted with fairness to
inspire confidence in the minds of the people who are
subjected to its jurisdiction.
This Court is of the view that the facts of the
aforesaid case do not aid the petitioner in the present
proceedings.
The case of Oryx (supra) relates to a commercial
contract. The discipline and the standard of conduct
that is expected from a member of the Force is
definitely stricter than the conduct that the parties to
a commercial contract are expected to subscribe to.
Furthermore, there were many factual data that were
in the favour of the petitioner that the show cause
notice did not take into account.
Furthermore, this Court finds that the petitioner
has responded to the charge sheet and also on his
request, the Enquiry Officer has been changed.
Therefore, this Court is of the view that no
interim order is called for in the present writ petition.
Let an affidavit-in-opposition be filed by
November 24, 2023. Reply, if any, by December 8,
2023.
Usually a Court does not interfere with the
decision of the authorities concerned at the stage of
charge sheet or show cause since the final
adjudication of the rights of the parties are not
determined at the preliminary stage. Interference at
such a preliminary stage is usually held to be
premature. A beneficial reference is made to the
decision of the Apex Court reported in (1987) 2 SCC
179 in (State of Uttar Pradesh vs. Brahma Datt
Sharma & Anr.)
Parties will be at liberty to mention the matter
for "Hearing" upon expiry of the period stipulated for
exchange of affidavits.
All parties shall act on the server copies of this
order duly downloaded from the official website of
this Hon'ble Court.
(Lapita Banerji, J.)
