Calcutta High Court
West Bengal Agro Industries ... vs Avishek Sarkar & Others on 20 August, 2024
Author: Debangsu Basak
Bench: Debangsu Basak
1
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
APO 151 of 2023
IA GA No. 1 of 2023
WPO 487 of 2021
West Bengal Agro Industries Corporation Limited & Another
Vs.
Avishek Sarkar & Others
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
For the Appellants : Mr. Jaydip Kar, Sr. Adv.
Mr. Soumya Majumder, Adv.
Ms. Sarmila Das, Adv.
For Respondent No. 1 : Mr. Indranil Chakraborty, Adv.
Mr. Apurba Ghosh, Adv.
Ms. Esha Banerjee, Adv.
Mr. Vaskar Pal, Adv.
Hearing concluded on : August 8, 2024
Judgment on : August 20, 2024
DEBANGSU BASAK, J. :-
1. Appellants have assailed the judgement and order dated July
30, 2023 passed by the learned Single Judge in WPO 487 of 2021.
2. By the impugned judgement and order, learned Single Judge
has held that the disciplinary proceeding as against the private
Signed By :
SUBHA
KARMAKAR respondent herein was contemplated and concluded in a pre-
High Court of
Calcutta
20 th of August
2024 02:35:28 PM
conceived mind, in derogation of the service rules and in violation
of the principles of natural justice. Consequently, the learned
Single Judge has set aside the charge-sheet, enquiry report, order
of punishment and directed reinstatement of the private
respondent with all consequential benefits including back wages.
3. Learned Senior Advocate appearing for the appellants has
referred to the events occurring prior to the issuance of the charge-
sheet as also events subsequent thereto. He has contended that,
the private respondent was appointed as assistant engineer. He had
joined the Purshurah office of the appellant No. 1 on September 1,
2024 and became the first officer of such office on February 18,
2015. Private respondent had asked for permission from Project
Manager to collect booking for agricultural instruments at the rate
of Rs. 500/- from intending purchasers on April 4, 2016. He has
contended that, private respondent suppressed from the project
manager the fact that the farmers had been mis-represented about
payment of Government subsidy against such purchase.
4. Learned Senior Advocate appearing for the appellants has
pointed out that, permission as sought for by the private
respondent was accorded on May 2, 2016. Thereafter, appellant No.
1 had received a complaint about false promise of Government
subsidy on May 31, 2017. A show-cause notice had been issued to
the private respondent on August 30, 2017. Private respondent had
submitted a reply on September 4, 2017. Thereafter the private
respondent had been suspended on September 8, 2017.
5. Learned Senior Advocate appearing for the appellants has
submitted that, on October 23, 2017, newspapers carried reports
about illegalities in the subject office of the appellant No. 1. Private
respondent had filed a writ petition being WPA 6714 of 2019
challenging his suspension. By an order dated April 4, 2019, the
Court had directed expeditious disposal of the disciplinary
proceeding. Subsequently, an Enquiry Committee had been formed
by the Managing Director on April 9, 2019. Enquiry Committee had
issued notice of appearance to the parties on April 12, 2019.
Private respondent had appeared before the Enquiry Committee on
April 26, 2019. Thereafter, an order of punishment of stoppage of
increment for three years had been passed as against the private
respondent and the order of suspension was withdrawn on May 3,
2019.
6. Learned Senior Advocate appearing for the appellants has
submitted that, private respondent challenged the order of
punishment dated May 3, 2019 by way of a writ petition being WPA
18117 of 2019. By an order dated September 27, 2019, such writ
petition had been disposed of by directing disposal of the
disciplinary proceeding in accordance with law and setting aside
the order of punishment. Subsequent thereto, charge-sheet had
been issued along with an order of suspension on October 22, 2019
against the private respondent. Private respondent had submitted a
detailed reply to the charge-sheet on November 7, 2019. Appellants
had appointed an advocate as the Enquiry Officer on November 26,
2019.
7. Learned Senior Advocate appearing for the appellants has
taken us through the minutes of the sittings of the Enquiry Officer.
He has contended that, request for being represented by an
advocate was declined by the Enquiry Officer as the presenting
officer was not an advocate. So far as request for summoning
defence witnesses is concerned, he has pointed out that the
Enquiry Officer noted that, Enquiry Officer did not possess
requisite power to summon a witness. However, Enquiry Officer
had permitted the private respondent to call any defence witness to
be examined during enquiry.
8. Learned Senior Advocate appearing for the appellants has
drawn the attention of the Court to the cross-examination of the
private respondent. He has contended that, private respondent
admitted and acknowledged all the charges as against him in the
cross-examination.
9. Learned Senior Advocate appearing for the appellants has
drawn the attention of the Court to one sample receipt issued by
the office of which, the private respondent was in charge. He had
submitted that, such receipt contained an endorsement
"Government Subsidy" thereby, giving an impression that the
instrument sought to be purchased by a farmer attracted
Government subsidy. He has contended that, no Government
subsidy was available for the sale or purchase of the agricultural
instrument. Private respondent had mis-represented such fact to
the members of the public.
10. Learned Senior Advocate appearing for the appellants has
contended that, private respondent failed to establish any prejudice
being caused on the alleged breach of principles of natural justice.
He has contended that, a proceeding cannot be vitiated for mere
non-compliance of service rule if such alleged non-compliance does
not result in any prejudice being caused to the private respondent.
In support of such contention, he has relied upon 2010 Volume 5
Supreme Court Cases 349 (Union of India and Others vs. Alok
Kumar) and 2006 Volume 8 Supreme Court Cases 776 (P.D.
Agrawal vs. State Bank of India and Others).
11. On the issue that, private respondent was not entitled to being
represented by an advocate on the ground that the Enquiry Officer
was an advocate, learned Senior Advocate appearing for the
appellants has relied upon 2008 Volume 4 Supreme Court Cases
406 (D.G., Railway Protection Force and Another vs. K.
Raghuram Babu).
12. On the aspect of the parties of a preliminary enquiry and the
fact that, the private respondent had participated in the
preliminary enquiry without any allegation of bias being raised,
learned Senior Advocate appearing for the appellant has relied
upon AIR 1964 Supreme Court 1854 (Champaklal Chimanlal
Shah vs. Union of India).
13. So far as appreciation of evidence in a disciplinary proceeding
is concerned the learned Senior Advocate appearing for the
appellants has contended that, where, there is some evidence, a
writ Court should not convert itself to a Court of appeal. In support
of such contention, he has relied upon 2013 Volume 6 Supreme
Court Cases 602 (S.R. Tewari vs. Union of India and Another)
and 2021 Volume 2 Supreme Court Cases 612 (Deputy General
Manager (Appellate Authority) and Others vs. Ajai Kumar
srivastava).
14. On the aspect of interference of a writ Court with regard to a
charge-sheet and the quantum of punishment imposed in a
disciplinary proceeding, learned Senior Advocate appearing for the
appellants has relied upon 2010 Volume 13 Supreme Court
Cases 427 (Oryx Fisheries Private Limited vs. Union of India
and Others) and 2019 Volume 10 Supreme Court Cases 449
(Union of India and Others vs. Lieutenant Colonel Kuldeep
Yadav).
15. Learned advocate appearing for the private respondent has
submitted that, the private respondent was initially appointed in
2014. Private respondent had been transferred to Purshurah office
and appointed as first officer of such office. Private respondent had
requested the Project Manager to accord permission to collect Rs.
500/- as booking advance on April 4, 2016. He has contended that,
the intention was to help the appellants by way of a security of Rs.
500/-, and insulate the appellant No. 1 from any loss that may
occur if large quantity is purchased and surplus stock was not sold
at the Purshurah office by securing an advance from the
customers. He has pointed out that, permission had been accorded
on May 2, 2016.
16. Learned advocate appearing for the private respondent has
contended that, another office staff, namely, Mr. Sukamal
Mukherjee confessed that, Mr. Mukherjee was responsible and will
take all necessary steps so that subsidy may be released. In this
regard, he has drawn our attention to a writing dated April 27,
2017 issued by Mr. Sukamal Mukherjee.
17. Learned advocate appearing for the private respondent has
contended that, some office staff of the Purshurah office
complained to the Managing Director as against Mr. Sukamal
Mukherjee. Bank passbook of Mr. Sukamal Mukherjee will
establish that he had received money from three customers.
18. Learned advocate appearing for private respondent has referred
to the preliminary enquiry conducted on June 5, 2017 and June 9,
2017. He has pointed out that, the preliminary enquiry found Mr.
Sukumol Mukherjee was solely responsible for spreading rumors.
Preliminary enquiry had also found Mr. Soumen Ghosh, cashier of
the office to be responsible for having accepted advances or
remitted the same to the head office. Another person, namely, Mr.
Gopal Saha who was the second officer was also held responsible.
Private respondent had been held responsible since he was
negligent in performance of his duties.
19. Learned advocate appearing for the private respondent has
submitted that, his client depended upon Mr. Sukamal Mukherjee
and lacked understanding of Government working procedure or the
subject scheme. Private respondent had been kept in the dark with
regard to the office affairs.
20. Learned advocate appearing for the private respondent has
contended that, preliminary enquiry found Rs. 3,85,000/- to be
received for supplying 1670 instruments of which 529 had been
sold to farmers in 2016-2017 and an aggregate amount of Rs.
8,35,000/- have been confirmed through the receipt and payment.
21. Learned advocate appearing for the private respondent has
drawn the attention of the Court to the sequence of events
occurring between the issuance of the first show-cause notice and
the two writ petitions filed thereafter.
22. Learned advocate appearing for the private respondent has
contended that, a new charge-sheet was issued on October 22,
2019 which was directed to be answered within 48 hours. This, he
has contended, itself shows the vindictive nature of the disciplinary
authority. Moreover, no fresh show-cause had been issued after the
issuance of the charge-sheet. He has contended that, during the
issuance of the charge-sheet, provisions of the service rules had
been violated as observed by the impugned judgement and order.
23. Learned advocate appearing for the private respondent has
contended that his client approached the High Court by a writ
petition being WP No. 180 (W) of 2020 seeking full salary minus the
suspension allowance for the period for which the disciplinary
proceeding was set aside. By an order dated January 13, 2020 the
High Court had observed that the grievance of the private
respondent was genuine and directed the appellant No. 1 to
consider the representation by passing a reasoned order. However,
the Managing Director of the appellant No. 1 had rejected such
representation on the grounds that it was premature and could
only be considered at the time of final adjudication.
24. Learned advocate appearing for the private respondent has
contended that, his client sought for copy of the manual/service
procedure or any other written manual/office order/notification
about running an office as an officer in charge. He has contended
that, the private respondent was ignorant of the working procedure
of the Corporation and as such his client asked for the same.
25. Learned advocate appearing for the private respondent has
contended that, his client requested the Enquiry Officer to summon
some witness and also requested one person to depose as witnesses
as he was the enquiry officer in the preliminary as well as the first
formal enquiry. Managing Director of the appellant No. 1 had
rejected the prayer for Mr. Konar to be a witness. He has contended
that, in the preliminary enquiry report as well as in the order
passed in the first formal enquiry it was specifically stated that his
client was unaware about the government schemes under which
subsidy was given and was ignorant about the day-to-day running
of his office.
26. Learned advocate appearing for the private respondent has
contended that, documents sought for by his client were denied in
the enquiry. He has contended that the enquiry officer did not act
as an independent adjudicator and was unbiased.
27. Learned advocate appearing for the private respondent has
contended that the witnesses examined on behalf of the
management were tutored. He has contended that, his client was
deliberately framed.
28. In support of his contentions, learned advocate appearing for
the private respondent has relied upon 2010 volume 2 Supreme
Court Cases 722 (State of Uttar Pradesh and Ors. vs. Saroj
Kumar Sinha), 2006 Volume 4 Supreme Court Cases 713
(Narinder Mohan Arya vs. United India Insurance Co. Ltd.), All
India Reporter 2002 Supreme Court 3030 (Sher Bhadur vs.
Union of India and Ors.), 1986 Volume 3 Supreme Court Cases
454 (Swai Singh vs. State of Rajasthan), 1995 Volume 6
Supreme Court Cases 749 (B.C. Chturvedi vs. Union of India
and Ors.), and 2007 Volume 3 Calcutta High Court Notes 476
(Asian Leather Limited and Anr. Vs. Kolkata Municipal
Corporation and Ors.).
29. Facts which have been established or admitted are as follows: -
i. on June 24, 2014 respondent No. 1 has been appointed
as Sub- Assistant Engineer
ii. respondent No. 1 had joined the Purshurah office of the
appellants on September 1, 2014
iii. respondent No. 1 had become the first officer of such
office on February 18, 2015
iv. respondent No.1 had asked for permission from the
Project Manager of the appellants to collect booking at
the rate of Rs. 500 from the intending buyers by a letter
dated April 4, 2016
v. letter dated April 4, 2016 of the respondent No. 1 did not
contain any statement of government subsidy
vi. appellants had accorded permission to collect booking
amount by a writing dated May 2, 2016
vii. appellants had received a complaint about false promise
of government subsidy by a writing dated May 31, 2017
viii. appellants had issued a show cause notice dated August
30, 2017 to the respondent No. 1 to which he replied by
a letter dated September 4, 2017 accusing a group D
contractual staff of the misdeeds
ix. on September 18, 2017 respondent No. 1 had been
suspended
x. respondent No. 1 had filed WPA 6714 of 2019
challenging his suspension
xi. such a writ petition had been disposed of by an order
dated April 4, 2019 by directing expeditious disposal of
the disciplinary proceeding
xii. appellants had constituted an Enquiry Committee on
April 19, 2019
xiii. such Enquiry Committee had issued a notice of
appearance on April 12, 2019
xiv. respondent No. 1 had appeared before such Enquiry
Committee on April 26, 2019
xv. a punishment of stoppage of increment of 3 years from
the date of the final order had been passed and the order
of suspension was withdrawn as against the respondent
No. 1 on May 3, 2019
xvi. respondent No. 1 had filed WPA 18117 of 2019
challenging the order of punishment dated May 3, 2019
xvii. such writ petition had been disposed of on September
27, 2019 by setting aside the order of punishment and
directing the disposal of the disciplinary proceeding in
accordance with law
xviii. a fresh chargesheet had been issued on October 22,
2019 along with an order of suspension as against the
xix. respondent No. 1 had submitted a detailed reply to such
chargesheet on November 7, 2019
xx. a new Enquiry Officer who is an advocate by profession
had been appointed on November 26, 2019
xxi. 3 management witnesses had been examined in the
enquiry
xxii. respondent No. 1 had cross-examined each of such
management witnesses
xxiii. respondent No. 1 had submitted written
statement/deposition in the enquiry on March 4, 2020
xxiv. respondent No. 1 had been cross-examined on March 18,
xxv. request of the respondent No. 1 to summon witnesses
had been rejected by the Enquiry Officer on the grounds
that he did not have jurisdiction to do the same by an
order dated March 18, 2020
xxvi. Enquiry Officer had submitted his report on June 16,
2020 holding that all charges levelled as against the
respondent No. 1 stood proved
xxvii. Enquiry Report had been forwarded to the respondent
No. 1 on June 24, 2020 for his reply
xxviii. respondent No. 1 had submitted his reply to the Enquiry
Report
xxix. a 2nd show cause notice had been issued to the
respondent No. 1 on November 4, 2020 to which
respondent No. 1 gave a reply on November 13, 2020
xxx. order of punishment of dismissal from service had been
passed on December 1, 2020
30. Four charges had been levelled as against the respondent No. 1
in the chargesheet dated October 22, 2019. Respondent No. 1 had
been charged with the failure to discharge duties honestly and
faithfully to the best of skill and ability in not promoting the
interest of the appellant No. 1, behaving in a manner unbecoming
of an employee and derogatory to the prestige of appellant No. 1,
deliberately spreading false information with a view to bringing
about disruption of the normal work of appellant No. 1 and
intentionally giving false information to superior and misleading
superior in obtaining approval.
31. The charges that had been levelled as against the respondent
No. 1 centred around his actions as the officer in charge of the
subject unit of the appellant No. 1 at the relevant point of time. He
had as the officer in charge asked for permission of the Project
Manager by a writing dated April 4, 2016 to collect an advance at
the rate of Rs. 500 from farmers for sale of agricultural instrument.
While obtaining such permission, he had suppressed the fact that,
he would be misrepresenting to the members of the public that,
government subsidy was involved in such distribution of
agricultural instrument. He had as the officer in charge allowed
money receipts to be issued for the advance, noting therein the
words government subsidy, when actually no government subsidy
was involved.
32. In his cross-examination the respondent No. 1 had admitted
that he had sought permission from the Project Manager by the
letter dated April 4, 2016 for collecting advance of Rs. 500 from the
farmers in respect of sale of agricultural instruments. He had
admitted in such cross-examination that, the money receipts
issued to farmers noted the words government subsidy. He had
also acknowledged the fact that, no government subsidy was
involved in the transaction. He had acknowledged that, he did not
take any steps against the cashier involved although he knew
about the transaction. He had sought to explain his conduct by
saying that he was without any previous training. With regard to
his subordinates, he had stated in his cross-examination that, he
was aware of office related work of his subordinates while not being
aware of the unethical actions of his subordinates outside the
office.
33. The money receipt noting government subsidy had been issued
by the office of which, the respondent No. 1 was the officer in
charge at the relevant point of time. No government subsidy was
involved and the respondent No. 1 was aware of the same. Despite
his knowledge of no government subsidy being involved and despite
his knowledge that, the money receipt issued contained the words
government subsidy, he had not informed about the same to his
superior officers nor had he taken any steps as against the persons
involved in his office.
34. The cross-examination of the respondent No. 1 apart from
anything else had conclusively established all the charges against
him.
35. Learned Single Judge has referred to Rule 90 (iv) of the Service
Rules, 1972 as being violated. Rule 90 (iv) of the Service Rules,
1972 has specified that, simultaneously with the framing of
charges, the Disciplinary Authority will appoint an officer other
than the complainant to conduct an enquiry. It has also specified
that the name of the enquiry officer shall be stated in the
chargesheet.
36. In the facts of the present case, the name of the Enquiry Officer
has not been specified in the chargesheet. Enquiry Officer has been
appointed subsequent to the issuance of the chargesheet and is not
the complainant.
37. In our view, Rule 90 (iv) of the Service Rules, 1972 cannot be
construed to mean that, no Enquiry Officer can be appointed
subsequent to the issuance of the chargesheet.
38. If such construction is accepted then, in a given case, where
the Enquiry Officer named in the chargesheet, suffers any
disqualification or is otherwise incapacitated from continuing as
the Enquiry Officer during the disciplinary proceedings, then, the
entire disciplinary proceeding will come to an end as such Enquiry
Officer cannot be substituted. In our view, such a construction will
give rise to an absurdity which should be eschewed. Consequently,
all that, Rule 90 (iv) of the Service Rules requires is that, the
Enquiry Officer should not be the complainant himself and that,
ideally the name of the Enquiry Officer should be specified in the
chargesheet. We hasten to add that, naming the Enquiry Officer in
the chargesheet does not mean that, the management is
incapacitated from changing the Enquiry Officer if the situation so
demanded, and in a process known to law.
39. Both P D Agarwal (supra) and Alok Kumar (supra) have held
that, employee must show that non-observance of principles of
natural justice has caused real prejudice to him. In the facts of the
present case, rejection of the prayer for being represented by an
advocate, alleged refusal to summon witnesses for the defence and
alleged non-grant of documents have been cited as breach of
principles of natural justice which has caused prejudice to the
respondent No. 1.
40. Respondent No. 1 had requested the Enquiry Officer for being
represented by an advocate at the first sitting of the enquiry.
Enquiry Officer had rejected such prayer on such date on the
ground that the management was not being represented by an
advocate.
41. K Raghuram Babu (supra) has held that, there is no vested or
absolute right in any chargesheeted employee to representation
either through a counsel or through any other person unless the
statute or rule/standing orders provide for such a right. It has also
held that, refusal to grant representation through an agent does
not violate the principles of natural justice.
42. In the facts of the present case, the management was not being
represented by an advocate in the enquiry proceedings. No service
rule has been placed before us establishing a right to the charged
employee to be represented by an advocate in the enquiry
proceedings. Consequently, contentions as to violation of principles
of natural justice on the rejection of the prayer for being
represented by an advocate in the enquiry proceedings cannot be
upheld.
43. Request for issuance of summons to persons who would be
defence witnesses had been made to the Enquiry Officer on March
18, 2020 by the respondent No. 1. Enquiry officer had recorded
that, he did not have any power to issue summons to any witnesses
in an enquiry proceeding. However, he had allowed the respondent
No. 1 to produce any witness during the enquiry proceedings in his
defence.
44. This action of the Enquiry Officer cannot be termed to have
violated the principles of natural justice causing any prejudice to
the respondent No. 1. Respondent No. 1 had been permitted to
produce witnesses in his defence if he chose to. Respondent No. 1
did not produce any defence witness during the enquiry proceeding
other than himself. He had examined himself on behalf of the
defence.
45. Documents that the management had relied upon in the
enquiry proceedings had been made over to the respondent No. 1.
Request of documents made by the respondent No. 1 had been
dealt with by the enquiry officer on January 17, 2020 in details.
Essentially, all documents sought for by the respondent No. 1 had
been made part of the enquiry was available with the respondent
No. 1. Respondent No. 1 cannot be said to have been prejudiced by
the decision of the enquiry officer dated January 17, 2020.
46. Another aspect of the breach of principles of natural justice
that the respondent No. 1 has alleged is that the presenting officer
had acted as the enquiry officer in the earlier round of the enquiry
proceedings. Champaklal Chimanlal Shah (supra) has held that,
a preliminary enquiry is for the purpose of collection of facts in
regard to the conduct and work of a government servant in which
he may or may not be associated so that the authority concerned
may decide whether or not to subject the employee concerned to
the enquiry necessary under Article 311 for inflicting one of the 3
major punishments mentioned therein. A preliminary enquiry may
be held ex-parte for it is merely for the satisfaction of the
government, though usually for the sake of fairness, explanation is
taken from the employee concerned. The allegation of the
respondent No. 1 is directed against one person who had acted as
the enquiry officer in the preliminary enquiry as against the
respondent No. 1. Such preliminary enquiry officer had acted as
the presenting officer in the regular disciplinary proceedings
initiated against the respondent No. 1. Again, respondent No. 1 has
not established any prejudice is being caused to him by such an
action.
47. SR Tiwari (supra) has held that, findings of fact are perverse if
arrived at by including or excluding relevant material, or by taking
into consideration irrelevant/inadmissible material, or if findings of
fact are against the weight of evidence, or if they outrageously defy
logic or suffer from vice of irrationality, or where decision is based
on evidence which no reasonable person would act upon. It has
gone on to say that, where there is some acceptable and reliable
evidence, conclusions cannot be termed as perverse and
consequently findings cannot be interfered with.
48. Ajai Kumar Srivastava (supra) has held that, there are limits
to judicial review of administrative action. It has held that, strict
rules of evidence are not applicable to departmental proceedings
and only requirement is that allegations against the delinquent
must be established by such evidence acting upon which
reasonable person acting reasonably and with objectivity arrive at
such finding.
49. A delinquent employee facing a disciplinary proceeding and
claiming breach of principles of natural justice has to establish not
only breach of any of the principles of natural justice but also that
such breach has caused him prejudice.
50. Judicial review of administrative order can be successfully had
if it is established that, such as administrative order was perverse.
The writ petitioner who has alleged perversity of the impugned
administrative order needs to establish that, the order was issued
by taking into consideration extraneous/inadmissible materials or
ignoring relevant materials or the findings return were against the
weight of evidence or such findings outrageously defy logic or suffer
from the vice of irrationality or where the decision is based on
evidence which no reasonable person could act upon. However,
judicial review of an administrative order is not available when,
there is some evidence to support the conclusion arrived at.
Moreover, a writ court is not called upon to re-appreciate or re-
evaluate the materials taken into consideration while passing the
administrative order and substitute the findings of the
administrative order by its own finding. A writ court is not called
upon to function as a Court of Appeal against an administrative
order when there is some material to support the conclusion
arrived at in the administrative front.
51. Oryx Fisheries Private Limited (supra) has held that, object
of show cause notice is to give the noticee a reasonable opportunity
of making objection against proposed charges indicated in the
notice. It has noted that, reasonable opportunity includes an
opportunity to deny guilt and establish innocence. In the facts of
the present case, the respondent No. 1 had responded to the
chargesheet by electronic mail stating that, the standard mail
would take time to reach the employer. Contemporaneously,
respondent No. 1 did not allege that, time given for response to the
chargesheet was inadequate. Rather, he had submitted a detailed
response. Moreover, respondent No. 1 has not alleged that, he did
not understand the contents of the chargesheet. Nor has he alleged
that, employer noted the decision in the chargesheet itself.
Respondent No. 1 has failed to establish that, the appellants acted
with a closed mind in issuing the chargesheet and continuing with
the disciplinary proceedings.
52. Kuldeep Yadav (supra) has held that, quantum and nature of
punishment is in the domain of the employer and that, judicial
review can be invoked only in exceptional and rare case where
punishment shocks the conscience of the court and is
unreasonable. In the facts and circumstances of the present case, it
cannot be said, with the charges being proved as against the
respondent No. 1 that, the quantum of punishment imposed is
disproportionate.
53. Saroj Kumar Sinha (supra) has held that, an enquiry officer
is a quasi-judicial authority and is in the position of an
independent adjudicator. He is not supposed to be representative of
the department/disciplinary authority. He is required to be wholly
unbiased and should not act as a prosecutor as well as a judge. In
the facts of the present case, the enquiry officer which had
submitted the enquiry report on the basis of which, the order of
punishment was imposed by the disciplinary authority, did not act
as the prosecutor. The earlier enquiry officer who conducted the
preliminary enquiry had acted as the presenting officer. Ratio laid
down in the judgement cited does not disqualify such enquiry
officer in the preliminary enquiry to act as the presenting officer.
The presenting officer has not decided on the merits of the charges
and the defence raised.
54. Narinder Mohan Arya (supra) has held that, on judicial
review of a departmental enquiry, court ought to examine as to
whether the evidence adduced before the enquiry officer had nexus
with the charge and could or could not lead to the guilt of the
employee. In the facts and circumstances of the present case, apart
from the evidence led by the management, the respondent No. 1 in
his cross-examination admitted all the charges levelled against
him. Consequently, it cannot be said that, the enquiry officer had
based his finding as against the respondent No. 1 on no material
evidence at all.
55. Sher Bhadur (supra) has in the facts of that case where the
enquiry officer stated that in view of the documentary and
circumstantial evidence as adduced in enquiry the charges stood
proved, did not satisfy the rule of sufficiency of evidence. Such is
not the case here.
56. Swai Singh (supra) has held that, where the charges are
vague and evidence are not sufficient to connect the charged officer
with the alleged misconduct, such departmental enquiry stood
vitiated by non-compliance with the principles of natural justice.
Again, in the facts and circumstances of the present case, it cannot
be said that the charges levelled are vague or that, such charges
have not been proved in the enquiry.
57. BC Chaturvedi (supra) has held that where findings of the
disciplinary authority are based on some evidence, court cannot re
appreciate the evidence and substitute its own findings.
58. Asian Leather Ltd and another (supra) has dealt with
provisions of the Kolkata Municipal Corporation Act and the right
to obtain a sanctioned building plan without paying for the
Drainage Development Fees. The facts and circumstances of the
present case are absolutely different.
59. The Enquiry Officer had on appreciation of the facts
established during the enquiry arrived at the finding that the
charges as against the respondent No. 1 stood proved. Such
decision of the Enquiry Officer as accepted by the disciplinary
authority has not been established to be perverse.
60. In view of the discussions above, we set aside the impugned
judgement and order of the learned single judge and restore the
order of punishment imposed as against the respondent No. 1.
61. APO 151 of 2023 is allowed without any order as to cost.
[DEBANGSU BASAK, J.]
62. I agree.
[MD. SHABBAR RASHIDI, J.]
Later :-
Learned advocate appearing for the appellant submits that,
pursuant to order dated February 29, 2024 appellant deposited
50% of the amount receivable by the respondent No. 1 with the
Registrar, Original Side.
In view of the appeal being allowed, it would be appropriate to
permit the appellants to withdraw the amount deposited with the
Registrar, Original Side.
The Registrar, Original Side will refund the entire amount lying
to the credit of the proceedings, to the appellant No. 1 forthwith.
The Registrar, Original Side will encash fixed deposit, if made,
prematurely, if necessary.
[DEBANGSU BASAK, J.]
I agree.
[MD. SHABBAR RASHIDI, J.]
