Dr. Tapas Kumar Mandal - Petitioner @HASH Union of India and Others

Arindam Sinha, J. - The petitioner appeared in person in support of his writ petition challenging, inter alia, the disciplinary proceedings initiated against him as well as denial of promotion. The petitioner alleged he had applied for extension of service for a period of 2 years as per provision under Article 4.3.1 of the bye-laws of Saha Institute of Nuclear Physics. Similarly situated members of the said Institute received extension of service but the petitioner was denied such extension. The writ petition was heard on several occasions.

The petitioner submitted, disciplinary proceedings were initiated against him and though the proceedings were completed except for the making of the order by the Disciplinary Authority, the same was not made while he was in service till 30th June, 2010. The Disciplinary Authority made its order on 16th June, 2011, after his retirement, by which penalty was imposed deducting 10 per cent from the sum of monthly pension payable to the petitioner for a period of 5 years. According to him the said order passed about a year after his retirement is arbitrary, illegal, disproportionate to the charges levelled against him and in breach of clause 4.8.1 of the bye-laws of the said Institute.

The petitioner had by application being CAN 9509 of 2013 taken, inter alia, an additional point of challenge. He alleged the said Institute had failed to obtain mandatory approval of its bye-laws and amendments made thereto, from the Government of India pursuant to the tripartite agreement signed in the year 1992, which made all actions and decisions taken by the said Institute against him null and void. The additional point sought to be raised by amendment was on the allegation of subsequent discovery. This Court by order dated 25th January, 2016 allowed the amendment application for the point to be raised and urged. The petitioner in support of such additional point of challenge had relied upon, inter alia, order dated 3rd March, 2010 made by the Central Information Commission on the appeal of one Dr. Supratic Chakraborty against the Chief Public Information Officer (CPIO), Micro Electrical Division of the said Institute. It appears from the said order the said appellant had sought copies of the bye-laws as approved by the Government of India. The Commission found the explanation of the CPIO was that the bye-laws had been approved by the governing Council of the said Institute. Time of ten working days was granted from the receipt of that order by the CPIO for the said officer to state clearly if the bye-laws framed after 1992 and recruitment norms modified from time to time had received approval of the Government of India, Department of Atomic Energy. The petitioner alleged the said appellant was not informed simply because the bye-laws had not been approved.

Mr. Mantha, learned senior advocate appeared on behalf of the said Institute. He had drawn attention of this Court to an order dated 13th February, 2015 by which the petitioner''s another writ petition being W.P. 7504 (W) of 2010 along with connected applications were dismissed as not pressed. Mr. Mantha submitted, the subject matter of that writ petition was the petitioner''s claim for extension of service. The position could not be disputed by the petitioner appearing in person. Hence, the petitioner could not re-agitate by this writ petition, his claim for relief regarding denial of his extension of service.

Mr. Mantha then addressed Court regarding the additional point of challenge about the bye-laws of the said Institute not having been duly approved. He submitted, formal approval had not been obtained. The said Institute had treated the first bye-laws as deemed to have been approved since the Secretary of the Ministry of Atomic Energy is the Ex-Officio Chairman of the Governing Council. The representatives of the Government of West Bengal and Calcutta University are the members of the Governing Council in office. He submitted further, the petitioner was estopped from challenging the bye-laws on the ground of approval not obtained since he had participated in the disciplinary proceedings conducted in terms of the bye-laws. He relied on a decision of the Supreme Court in the case of Vijendra Kumar Verma v. Public Service Commission, Uttarakhand reported in (2011) 1 SCC 150 in particular paragraphs 23 to 28. He submitted, the Supreme Court in that case had relied on its earlier decisions to declare that candidates who had appeared in a selection process taking opportunity of being selected, could not upon being unsuccessful, turn around and challenge the process. The petitioner''s challenge was liable to be dismissed on the ground of estoppel.

On such submissions being made and since the petitioner appearing in person was without professional help, the Court, by order dated 17th March, 2016 appointed Mr. Partha Sarathi Bhattacharyya, learned advocate as Amicus Curie on the record in that order made as reproduced below :-

"The petitioner is appearing in person. This Court thinks fit to allow the petitioner an opportunity to go through the judgment and make his submissions on the adjourned date. The petitioner must understand that he is a person who has participated in the disciplinary proceedings taking a chance to be exonerated or successfully defend himself against the charges brought. Being unsuccessful he has now turned around to challenge the disciplinary proceedings on the ground that the bye-laws under which they were conducted had not been approved. There is the similarity which, according to the submissions made on behalf of the Institute, would attract application of the aforesaid view of the Supreme Court. The petitioner must make his submissions with regard thereto.

Mr. Partha Sarathi Bhattacharyya, learned advocate is appointed Amicus Curie in this matter to assist the Court in adjudicating the point as in the record of this order. Let a copy of this order be served on Mr. Bhattacharyya by the Registry."

The Amicus Curie appeared and made his submissions as recorded in order dated 20th April, 2016 which are reproduced below :-

"Mr. Bhattacharyya, learned advocate, Amicus Curie appointed for the purpose of adjudication of this writ petition, appeared and made his submissions. He relied on several decisions of the Supreme Court as noted under :-

(i) H.V. Nirmala v. Karnataka State Financial Corporation and ors. reported in (2008) 7 SCC 639 in particular paragraphs 16 to 21 therein. Paragraphs 16 and 17 contain quotes from earlier decisions of the said Court. Two relevant quotes are reproduced below :-

(a) Central Bank of India v. C. Bernard reported in (1991) 1 SCC 319 :-

"9. Lastly, Shri Shetye submitted that in any event the respondent succeeded in getting the order of punishment quashed on a mere technicality and that too on the contention belatedly raised before the High Court for the first time and, therefore, the High Court was in error in directing payment of all consequential benefits. We think there is merit in this contention. If the objection was raised at the earliest possible opportunity before the Enquiry Officer the appellant could have taken steps to remedy the situation by appointing a competent officer to enquire into the charges before the respondent''s retirement from service. It is equally true that the penalty has not been quashed on merits. On the contrary, if one were to go by the charge levelled against the respondent and the reply thereto one may carry the impression that the respondent had made the claim on the basis of the fake receipt; whether the respondent himself was duped or not would be a different matter. The fact, however, remains that the impugned order of punishment has to be quashed not because the merits of the case so demand but because the technical plea of incompetence succeeds.

(emphasis supplied)"

(b) Rattan Lal Sharma v. Dr. Hari Ram (Co-Education) Higher Secondary School reported in (1993) 4 SCC 10 :-

"12. � � �But if the plea though not specifically raised before the subordinate tribunals or the administrative and quasi-judicial bodies, is raised before the High Court in the writ proceeding for the first time and the plea goes to the root of the question and is based on admitted and un-controverted facts and does not require any further investigation into a question of fact, the High Court is not only justified in entertaining the plea but in the anxiety to do justice which is the paramount consideration of the court, it is only desirable that a litigant should not be shut out from raising such plea which goes to the root of the lis involved."

(ii) Board of Directors, Himachal Pradesh Transport Corporation and anr. v. K.C. Rahi reported in (2008) 11 SCC 502 paragraphs 6 and 8 of which paragraph 8 is reproduced below :-

"8. In the instant case we have been taken through various documents and also from the representation dated 19-10-1993 filed by the respondent himself it would clearly show that he knew that a departmental enquiry was initiated against him yet he chose not to participate in the enquiry proceedings at his own risk. In such event plea of principle of natural justice is deemed to have been waived and he is estopped from raising the question of noncompliance with principles of natural justice. In the representation submitted by him on 19-10-1993 the subject itself reads "Departmental Enquiries". It is stated at the Bar that the respondent is a law graduate, therefore, he cannot take a plea of ignorance of law. Ignorance of law is no excuse much less by a person who is a law graduate himself."

(iii) National High School, Madras v. Education Tribunal and anr. reported in 1992 Supp (3) SCC 106 paragraphs 4 and 5 therein of which paragraph 4 is reproduced below :-

"4. The argument for the appellant before us is that there is no statutory obligation for the school committee to conduct the enquiry against the school teacher and the enquiry could be held either by the school committee or by any third person. In our opinion, it is unnecessary to decide this issue since the appeal could be conveniently disposed of on another ground. It is not in dispute that the respondent himself demanded that the enquiry should be held by educationists other than the school committee. That request seems to have been necessitated since he has made accusations against the Headmaster of the school. Accordingly a committee of outsiders was appointed to hold the enquiry. The respondent participated in the enquiry and did not at any time raise objection as to the jurisdiction of the Committee. He was therefore, estopped from raising the objection as to the jurisdiction of the school committee. Secondly, the Form No. VII (A) relied upon by the Division Bench of the High Court is a form under which the agreement shall be executed by the school committee while appointing a school teacher. By consent the terms of the agreement could be changed and that is what the parties seemed to have done in this case."

Today, Mr. Mantha submits, Rattan Lal Sharma (supra) is distinguishable as not applicable to the present case. He submits, the omission of the said Institute to have obtained the approval of its bye-laws was at best an irregularity. The petitioner had availed of the benefits thereunder and had belatedly taken this point of challenge which challenge did not go to the root of the lis between the petitioner and the said Institute. He submits, the facts in Rattan Lal Sharma (supra) were that there was bias in the inquiry proceedings. Hence, that went to the root of the lis. The allegation of late discovery should not be accepted since the bye-laws were uploaded in the internet and was available to all. He submits further, the other decisions cited by the Amicus Curie support his submission that the challenge of the petitioner is barred by estoppel.

The agreement relied upon by the petitioner in raising this additional point of challenge is a tripartite agreement dated 27th August, 1992 between the President of India, the Governor of West Bengal and the Vice-Chairman of Calcutta University. Clause 3 of the said agreement is as under :-

"3. The Rules set out in the Schedule hereto shall constitute the Rules for the administration and management of the Institute from the date of commencement of this Agreement. These Rules may from time to time be altered, added to and modified by the Council with the joint consent of the Government of India (Department of Atomic Energy) and the Government of West Bengal and such Rules (so altered, added to and modified) shall operate from such date as shall be notified by the Council, with the approval of the Government of India and the Government of West Bengal."

The un-controverted fact is that approval was not had and obtained as no notification to that effect could be disclosed.

There is, in the view of this Court, a difference between a selection process in which a candidate participates to obtain for himself an appointment and a disciplinary proceedings in which a charged person seeks to defend his position. The petitioner was not a candidate seeking the benefit of an appointment in a selection process. Charges had been levelled against him based on allegations made which he was called upon to answer failing which the charges would were likely to be deemed to have been proved against him. He as such was not in the same position as that of a candidate.

Section 115 of the Evidence Act provides as follows :-

"115. Estoppel.- When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth or that thing."

The petitioner in having sought to defend his position in the disciplinary proceedings cannot by that be said to have intentionally acted in causing or permitting the said Institute to believe that the petitioner had accepted the omission on the part of the said Institute to have approval of its bye-laws for the petitioner to be estopped from subsequently raising such challenge. The fact of the bye-laws not having received approval is something that was known to the said Institute. No act on the part of the petitioner could have led the Institute to believe a position otherwise. The petitioner had also brought to the notice of this Court order made in an appeal preferred by another person of the said Institute against it regarding absence of such approval where the CPIO alleged the bye-laws had received approval. Even then the said Institute did not see fit to remedy the situation, the same persists. The petitioner''s contention of subsequent discovery thus is of substance to make inapplicable against him the bar of estoppel, of having had permitted the said Institute to believe he had accepted the bye-laws. In these facts Vijendra Kumar Verma (supra) has no application and the plea that the omission is a mere irregularity or, such irregularity being equated to a technical plea taken by the petitioner belatedly, cannot be accepted.

In Rattan Lal Sharma (supra) the Supreme Court had declared that when a point is raised before the High Court in writ proceeding for the first time and the plea goes to the root of the question, it is based on admitted and un-controverted facts and does not require any further investigation into a question of fact, the High Court is not only justified in entertaining the plea but in the anxiety to do justice which is paramount consideration of the Court, it is only desirable that a litigant should not be shut out from raising such plea which goes to the root of the lis involved. This Court finds, the inescapable conclusion on the un-controverted facts is that, the initiation of the disciplinary proceedings on the basis of bye-laws which had not been approved is something that goes to the root of the lis involved. The law declared in Rattan Lal Sharma (supra) is applicable to the facts and circumstances of this case.

For the reasons aforesaid the writ petition succeeds. The disciplinary proceedings are quashed and set aside as having been initiated under byelaws which were not duly approved. The petitioner is entitled to consequent restitution which must be made by the said Institute within a period of six weeks from the date of communication of a copy of this order to be made by the petitioner. Regarding the relief against denial of promotion, the same was not urged in the hearings and the Court makes no order with regard thereto.

This Court records its appreciation of the assistance rendered with erudition and fairness by Mr. Bhattacharyya as Amicus Curie.

The writ petition and all connected applications are disposed of.

Mr. Mantha then makes two-fold submissions. Firstly that this order should not prevent the said Institute from applying for approval of the bye-laws with retrospective effect and secondly, that the operation of this order be stayed. His first submission has been recorded and the prayer for stay is considered and refused.