Debasish Basak vs State Of West Bengal & Ors

Amrita Sinh, J

The petitioner was serving as a bus conductor of the West Bengal Transport Corporation Ltd. formerly known as the Calcutta Tramways Company (1978) Limited herein after referred to as 'the Company'.

On 7th February, 2009 when he was on duty his cash bag was checked by the checking squad and an amount of Rs. 299/- (rupees two hundred ninety nine) only was detected from his custody. The said money was in excess of the amount of tickets sold.

A charge sheet was issued against him on 4th January, 2010. A regular disciplinary proceeding was initiated and the petitioner was found guilty of the charges levelled against him. A final order was issued on 26th August, 2010 imposing the penalty of termination from service. The order was effective from 1st October, 2010. The statutory appeal filed by the petitioner against the said order of termination was rejected by the Managing Director of the Company by an order dated 30th October, 2018.

The petitioner is aggrieved by the order of termination. He submits that the penalty order is highly disproportionate to the charges levelled against him. The petitioner submits that the Company has imposed lesser punishment in respect of other employees charged with similar offence. The petitioner has annexed series of orders in respect of other employees who were detected with excess cash and imposition of fine was the punishment levied upon them. He submits that the punishment is required to be reconsidered by the authorities. He has prayed for setting aside the order of punishment.

The petitioner relies upon the judgment delivered by the Hon'ble Supreme Court in the matter of Noharlal Verma -vs- District Cooperative Central Bank Limited, Jagdalpur reported in (2008) 14 SCC 445 paragraph 35 wherein the Court was of the opinion that normally in exercise of the power of "judicial review", a Writ Court will not substitute its own judgment or decision for the judgment or decision of a disciplinary authority unless it comes to the conclusion that it has shocked the conscience of the Court or the punishment is such that no "reasonable man" would impose such punishment or that the decision is so absurd that one is satisfied that the decision maker at the time of making the decision must have taken leave of his senses.

The learned advocate relies upon the decision delivered by the Hon'ble Supreme Court in the matter of Administrator, Union Territory of Dadra and Nagar Haveli -vs- Gulabhia M. Lad reported in (2010) 5 SCC 775 paragraphs 14 and 23 wherein the Court held that the legal position is fairly well settled that while exercising the power of judicial review, the High Court or Tribunal cannot interfere with the discretion exercised by the disciplinary authority, and/or on appeal the appellate authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the Court/Tribunal. The exercise of discretion in imposition of punishment by the disciplinary authority or appellate authority is dependent on host of factors such as gravity of misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment he works. Ordinarily the court or a tribunal would not substitute its opinion on reappraisal of facts.

The petitioner further relies upon the judgment delivered by the Hon'ble Supreme Court in the matter of CRPF -vs- Surinder Kumar reported in (2011) 10 SCC 244 paragraph 15 on the self-same proposition.

The learned advocate appearing on behalf of the respondents submits that the Company conducted a regular disciplinary proceeding and opportunity was given to the petitioner to disprove the allegation levelled against him. The petitioner failed to provide any satisfactory and reasonable explanation for holding excess amount of cash in his bag. There was no procedural irregularity in conducting the disciplinary proceeding. The principal of natural justice has duly been complied with. This was not the first time that the petitioner committed such an offence. The petitioner is a habitual offender and he had been cautioned on earlier occasions for similar type of wrong doing. The respondents pray for dismissal of the writ petition.

I have heard the submissions made on behalf of both the parties. It appears from the submissions made on behalf of the petitioner as well as upon perusal of the documents placed before this Court that the petitioner was given reasonable opportunity to disprove the allegations made against him. The petitioner was involved in such type of misconduct on several earlier occasions for which enquiry was made and he was found guilty of the said charges. The Company withheld his increment for three years on 24th September, 2008.

The petitioner has place heavy reliance upon the order of punishment imposed in respect of other similarly situated persons. He has tried to make out a case of discrimination. The Supreme Court in the matter of Gulabhia M. Lad (supra) laid down that the quantum of punishment depends upon a host of factors. Whether the factors which were taken into consideration at the time of imposition of the punishment upon the petitioner and the other similarly placed offenders were the same or not, is not known to the Court.

A disciplinary proceeding initiated by the department is considered upon preponderance of probabilities. The petitioner was held guilty of similar charges on earlier charges. He suffered the punishment imposed upon him. The Company is not obliged to show any mercy to repeat offenders.

The petitioner has tried to contend that the quantum of money that he was found holding in excess is a meagre amount, and accordingly the highest degree of punishment ought not to be imposed upon him. What has to be kept in mind is the mentality to act dishonestly and not the amount involved. The act of misconduct is relevant regardless of the figure. It may have been that the petitioner has been able to get away with unaccounted cash on previous occasions, but was caught red handed on the fateful day. Being suffered punishment earlier, the petitioner ought to have been doubly careful while performing his duties. It appears that the earlier punishment did not help in reforming him. Instead of learning a lesson from his previous penalty the petitioner continued with his act of dishonesty. He is bound to pay the price for the same.

The conductors deal with cash transactions on regular basis. They hold a position of trust. They are liable to uphold the trust that the Company repose upon them. Mishandling cash by a conductor is a serious offence. The Company ought to weed out the guilty from their roll so that the same may have a deterring effect otherwise the dishonest will be encouraged to carry forward the dishonest act. It will give a premium to unscrupulous employees. They may harbour the idea of adopting corrupt practices and thereafter approach the Court for a respite. Such illegal activities must be dealt with by an iron fist. No leniency should be shown under any circumstances. Misplaced sympathy does more harm than good to the person and the society at large.

The judgments relied upon by the petitioner specifically held that the scope of judicial review is very limited. The High Court ought not interfere with the discretion exercised by the disciplinary authority. The exercise of discretion for imposition of penalty depends upon various factors. Past performance is one of the factors which become very relevant to be taken into consideration for imposition of penalty. The authorities have specifically considered the past performance of the petitioner wherein he was charged with similar offence and penalty of withholding of increment was passed against him. Being a repeat offender there was no reason and/or occasion on the part of the respondents to reduce the quantum of punishment that was imposed upon him. In all the decisions referred by the petitioner the Hon'ble Supreme Court refused to interfere with the order of punishment imposed by the disciplinary authority.

In the instant case the proceeding does not suffer from any illegality or procedural irregularity. The punishment imposed neither appears to be disproportionate, nor does it shock the conscience of the Court.

I am not inclined to interfere with the order of punishment imposed upon the petitioner. The writ petition fails and is hereby dismissed.

W.P No. 562 of 2018 is dismissed.

Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.