Honorary Secretary, Zoological Garden vs Abdul Gaffar

Jayanta Kumar Biswas, J.—This appeal was filed impugning the judgment and order dated October 10, 1991 passed by Mahitosh Majumdar, J. (as His Lordship then was). It was passed on the writ petition filed by Respondent No. 1 herein. Respondent Nos. 2, 3 and 4 in the said writ petition are the Appellants.

Said writ petition was registered as Civil Order No. 11701(W) of 1987. The writ petition was allowed in part by the impugned judgment and order. The order whereby Respondent No. 1 had been dismissed from service as also the enquiry proceedings were set aside, with liberty to the Appellants to proceed with the charge-sheet afresh.

The Respondent No. 1 was a Drawn of the Zoological Garden at Alipore in Calcutta. Pending action for alleged misconduct he was suspended from duty with effect from January 3, 1985. The allegations were that while on duty at the turnstile on January 2, 1985, at 10 a.m., he had collected the tickets from the visitors, and instead of tearing each of such tickets into two halves for returning one piece to the visitors and preserving the other piece in the drum kept at. the gate for the purpose, he kept the tickets in intact condition with himself by putting them inside the pockets of the dress he was wearing ; and such intact tickets numbering 176 were seized from his possession when he was caught and produced by the two constables, who were on duty at the main gate, before the Garden''s Deputy Superintendent. It was further alleged that the Respondent No. 1 had kept the seized tickets in his possession for the purpose of re-selling them for making personal gains and causing positive revenue loss to the Garden.

Thereafter by a memorandum dated March 21, 1985 the following charges were levelled against Respondent No. 1:

Article of charge-l That the said Ab. Goffar while functioning as Turnstile Durwan at the entrance gate of the Main Gate of the Zoological Garden, Alipore on 2.1.85 at 10.00 a.m. indulged in corrupt practice to cause financial loss to the Garden''s revenue.

Article of charge-ll That during the aforesaid period and while functioning in the aforesaid entrance gate, the said Ab. Goffar indulged in corrupt practice for making wrongful gains.

Before replying to the charges Respondent No. 1 by an undated letter demanded supply of copies of the reports both dated January 2, 1985 submitted by Constable Indu Bhusan Dey and Deputy Superintendent S.K. Choudhuri respectively ; and on the basis whereof the charges were framed. He also wanted to inspect the records, mentioned in his said letter, for the purpose of submitting written statement of defence. Under cover of letter dated April 11, 1985 copies of both the reports were duly supplied to the Respondent No. 1 and he was also informed that he would be allowed inspection of all the documents he wanted to inspect. He accordingly inspected all the documents before the inquiring authority, and then submitted his written statement of defence dated May 13, 1985.

In his written statement of defence the Respondent No. 1 denied that he had indulged in any corrupt practice to cause financial loss to the Garden''s revenue. He, however, did not deny the correctness of the allegations that the intact tickets had been recovered from his possession as a result of a search conducted on his person. He also did not explain as to why he had kept the intact tickets in his possession when he was required to tear each of them into two halves and return one piece to the visitors and keep the remaining piece in the drum kept at the gate for the purpose. That he was required to deal with the tickets in the manner as alleged was also not denied by the Respondent No. 1 in his said reply. On the contrary he contended in his reply that the terms ''corrupt practice'', ''financial loss'', and ''wrongful gain'' were nothing but hypothesis and he failed to understand as to how he indulged in corrupt activities to cause financial loss to the Garden as alleged.

Thereafter the enquiry commenced. The Respondent No. 1 together with his defence assistant participated in the enquiry. On July 24, 1985 all concerned attended the enquiry and recording of evidence commenced. On behalf of management in all three witnesses were examined in addition to the documents which were produced as evidence in support of the charges. On the other hand Respondent no, 1 got two witnesses examined in his defence. The police Constable who was to eye-witness to the incident and on whose complaint the Garden''s Deputy Superintendent retrieved the intact tickets from the possession of Respondent No. 1, as also the said Deputy Superintendent were amongst the management witnesses. All the witnesses were examined and thoroughly cross-examined.

After completion of the enquiry 1he inquiring authority submitted, his report dated September 20, 1985 to the Garden''s Managing Committee. The inquiring authority in his report recorded the finding that the fact of retrieving the 176 number of intact tickets from the possession of Respondent No. 1 had been established and proved. He further recorded that Respondent No. 1 had kept the intact tickets, with himself, in violation of the usual practice which Respondent No. 1 was required to follow in the discharge of his duties. The inquiring authority concluded that both the charges had stood proved.

Thereafter by a letter dated January 8, 1986 the Secretary of the Managing Committee informed the Respondent No. 1 that in view of the report submitted by the inquiring authority the Managing Committee had tentatively decided to dismiss the Respondent No. 1 from service. By the said letter the Respondent No. 1 was given an opportunity of showing cause as to why he should not be dismissed from service. Together with this second show cause notice the Respondent No. 1 was supplied with a copy of the enquiry report.

By his letter dated January 28, 1986 the Respondent No. 1 replied to the said second show cause notice. The Respondent No. 1 contended that the charge sheet was vague as no particulars of alleged corrupt practice to cause financial loss to the Garden''s revenue had been given in the articles of charge, and accordingly he had been deprived of the opportunity of defending himself in the enquiry. He further contended that he had kept the intact tickets, which had been retrieved from his possession, for dealing with the same later on, because for heavy visitors'' rush on the day it was physically not possible for him to follow the elaborate process of examining each ticket, tearing it into two halves, handing over one half to each visitor, and depositing the other half each time'' in the box. He contended that the inquiring authority had erroneously held that there was no great rush at the material point of time. The further contention raised by the Respondent No. 1 was that he had not sold or attempted to sell the tickets, and therefore, the allegation of indulging in corrupt practice Was made without any basis ; and the inquiring authority committed errors in finding him guilty of the charge of indulging in corrupt practice;

In the above circumstances the punishment order dated May 8/9, 1986 was issued by the Garden''s Managing Committee. The Respondent No. 1 was dismissed from service with immediate effect.

Thereupon the Respondent No. 1 moved this Court by filing a writ petition which was registered as Civil Order No. 8933 (W) of 1986/ In that writ petition Respondent No. 1 challenged all actions taken by the Garden authority including the order which had been passed for dismissing him from service.

By judgment and order dated March 9, 1987 Mahitosh Majumdar, J. (as His Lordship then was) was pleased to allow the said writ petition in part. The learned Judge was pleased to set aside the punishment order and give liberty to the Garden authority to proceed afresh from the stage of the second show cause notice. The punishment order was set aside on the ground that the facts of consideration of delinquent''s defence against each charge and recording of finding with reasons on each charge by the disciplinary authority, were not apparent there from.

In the above mentioned circumstances the disciplinary authority issued a fresh second show cause notice dated June 15, 1987. Thereby Respondent No. 1 was again called upon to show cause as to why he should not be dismissed from service in view of the finding of guilt recorded by the inquiring authority.

The Respondent No. 1 submitted his fresh reply dated August 28, 1987. In his this reply to the second ''second show cause notice'', for the first time the Respondent No. 1 raised the allegation of bias against the inquiring authority. He raised the plea on the ground that the inquiring authority was an officer subordinate to the Garden''s Deputy Superintendent; and the Deputy Superintendent had threatened the defence assistant, also an employee of the Garden, with dire consequences for ensuring that supply of copies of documents and evidence was not insisted on by the defence assistant. He, however, contended that on merit the findings of the inquiring authority were bad.

Considering the cause shown by Respondent No. 1, the disciplinary authority took the decision to impose on him the punishment of dismissal from service. Accordingly, by letter dated November 18, 1987 the Respondent No. 1 was informed that he was dismissed from service with immediate effect. Along with the said letter dated November 18, 1987 the decision of the disciplinary authority was supplied to the Respondent No. 1.

The punishment order communicated to the Respondent No. 1 by letter dated November 18, 1987 was challenged by him by moving this Court by filing a fresh writ petition which was registered as said Civil Order No. 11701 (W) of 1987. As already mentioned, the judgment and order impugned in the present appeal was passed by the learned Judge on this writ petition.

The learned Judge was pleased to quash the order of dismissal communicated by said letter dated November 18, 1987, the second ''second show cause notice'', the enquiry report, and the enquiry proceedings as he found all of them bad in law. His findings are summarized hereinafter.

Findings of the learned Judge on general infirmities: Grievances had been raised by the Respondent No. 1 regarding incorrect recording of time of occurrence. No charge of reselling was made. Articles of charge and statements of imputation stood at variance. Tickets were not sold on that date. So, resell was not proved. Articles of charge should have been amended. Report of Deputy Superintendent had not been supplied. Inspection of documents was not given. Sub-rule 9 and 10 of Rule 10 of the West Bengal Services (Classification, Control and Appeal) Rules, 1971 (in short ''the Rules of 1971'') were not complied with by the authorities.

Findings of the learned Judge on bias: Inquiring authority was all along biased. He being subordinate to the Deputy Superintendent could not be expected to act impartially. Allegation of partiality was a substantial plea as defence assistant had been threatened by the Deputy Superintendent with dire consequences for ensuring that supply of copies of reports and evidence was not insisted on. Plea of bias had been raised by Respondent No. 1 in paras. 9 and 11 of his reply dated January 28, 1986 submitted in response to the first ''second show cause notice''. Plea of bias, having been raised, the disciplinary authority should have replaced the inquiring authority. The inquiring authority was a party Respondent to the writ petition, but he did not bother to contest the case by filing opposition; therefore, the plea of bias stood established.

Findings of the learned Judge on enquiry report: Inquiring authority acted partly on relevant and partly on irrelevant materials. His findings, particularly on visitors'' attendance, were based on surmises and conjectures, and they were self-contradictory. The report did not contain findings on each charge; so it was violative of provisions of the Rules of 1971.

Findings of the learned Judge on decision of disciplinary authority: The disciplinary authority also acted partly on relevant and partly on irrelevant materials. Question of bias was not considered by it properly. Disciplinary authority did hot effectively consider serious grievances raised by Respondent No. 1. The plea that the inquiring authority''s finding regarding visitors'' attendance on the day was based on surmises and conjectures, was not considered by the disciplinary authority. It also failed to take into account serious and material discrepancy in the evidence of witnesses. The disciplinary authority did not consider the records of enquiry; and it did not assign any reason while accepting the inquiring authority''s findings. The disciplinary authority did not review its findings on each charge. It acted with utter non-application of mind. There was no objective appraisal of the pros and cons of the entire case by the disciplinary authority. The Court after considering the plea of bias had set aside the first ''second show cause notice'' and the first final order, and in spite of that the disciplinary authority did not consider the question of bias. The conclusion drawn by the disciplinary authority that the inquiring authority was free from bias could not be sustained, because once the charge of bias was raised the disciplinary authority was required to appoint a new inquiring authority for ensuring that the Respondent No. 1 could defend his case without being haunted by the apprehension of bias.

Before us, he learned Counsel for the Appellants has contended that in the facts and circumstances of the case the learned Judge erred in the exercise of his jurisdiction by interfering with the punishment order and enquiry proceeding. It has further been contended that the findings recorded by the learned Judge are contrary to the facts and materials on record. On the other hand the learned Counsel for the Respondent No. 1 has submitted that in view of the reasons recorded in the impugned judgment and order there is no scope to contend that the learned Judge committed any error of jurisdiction or law in quashing the enquiry proceedings and the punishment order.

We have gone through the records of the case which contain, the articles of charge, the statements of imputation, the letter by which Respondent No. 1 demanded supply of reports and inspection of the records mentioned therein, the letter by which copies of the reports were supplied to the Respondent No. 1 and he was informed that inspection of the records would be-given by the inquiring authority, written statement of defence submitted by the Respondent No. 1, the enquiry report, the first ''second show cause notice, reply submitted by the Respondent No. 1 to the first ''second show cause notice'', the judgment and order passed on the first writ petition filed by the Respondent No. 1, the second ''second show cause notice'', reply submitted by the Respondent No. 1 to the second ''second show cause notice'', and the final order passed by the disciplinary authority imposing the punishment of dismissal from service on the Respondent No. 1.

After perusing the records and materials mentioned in the preceding paragraph, we are of the view that the learned Judge was wrong in interfering with the actions and decisions of the authorities. Our reasons are recorded hereinafter.

We do not find any variation between the articles of charge and the statements of imputation. True that there was no charge of reselling the tickets. Naturally, there was no question of proving the fact of resell on the day of occurrence. The authority, admittedly, by letter dated April 24, 1985 amended the charge-sheet so as to correct the time which had earlier been wrongly recorded in the charge-sheet as 10 a.m. instead of 11 a.m. Copy of the Deputy Superintendent''s report dated January 2, 1985 was duly supplied to the Respondent No. 1 by the inquiring authority under cover of his letter dated April 11, 1985. Inspection of all the documents, as per demand, was given to the Respondent No. 1 by the inquiring authority on April 15, 1985. Respondent No. 1 took the inspection accompanied by his Defence Assistant; and only thereafter submitted his written statement of defence dated May 13, 1985. We have not found anything to conclude that Sub-rule 9 and 10 of Rule 10 of the Rules of 1971 or any other provision thereof was not complied with by the inquiring authority or by the disciplinary authority. Therefore, the findings of the learned Judge on general infirmities in the proceedings and decision, are clearly contrary to the records of the case.

We have perused paras. 9 and 11 of the reply dated January 28, 1986 submitted by the Respondent No. 1 in response to the first ''second show cause notice''. In para. 9 no whisper was made about the plea of bias. Paragraph 11 of said reply reads as follows: ''the Enquiry Officer showed his bias against me in holding that the witnesses'' failure to produce visitors was a ''silly explanation'' in as much as there being available on record the number of tickets issued and further production of visitors was unnecessary''. Solely on the basis of such averments the learned Judge concluded that once the plea of basis had been raised the disciplinary authority was required to replace the inquiring authority. We find that the allegations made in said para. 11 do not at all constitute a valid plea of bias. There is no justification for drawing a presumption that the inquiring authority was all along based or could not be expected to act impartially merely because he was one of the officers subordinate to the Garden''s Deputy Superintendent. The plea of bias had never been taken at any stage of enquiry. Admittedly, such a plea was taken for the first time only in the reply submitted by the Respondent No. 1 in response to the second ''second show cause notice'', and occasion for which had arisen because of the first round of Court case. The foundation for the plea of bias was that the Garden''s Deputy Superintendent had threatened the defence assistant with dire consequences for ensuring that supply of copy of his report and evidence recorded in enquiry was not insisted on. We have no hesitation to hold that the inherent falsehood of the foundational fact on which the plea of bias was based, is so apparent that the plea even does not warrant a prima facie examination. The plea, we are satisfied, besides being grossly belated and afterthought was a speculative and wild one, raised only in desperation to get rid of the inevitable consequences of the disciplinary proceeding. The learned Judge, in our view, should not have found fault with the enquiry proceedings on the basis of such a wild, speculative, belated and afterthought r5lea 01 bias.

The finding recorded by the learned Judge that the inquiring authority was all along biased is based on no material whatsoever. The learned Judge held that the allegation of basis stood established since the inquiring authority did not file any opposition to the writ petition. We are of the view that the requirement of filing an opposition to a writ petition is not a must observe ritualistic exercise. It is the choice of a party Respondent in a case either to file one or not to file. The principles of non-traverse, however, are not to be applied automatically by a Writ Court while exercising the power of judicial review. In a case arising out of disciplinary proceeding, by fifing an opposition the inquiring authority is not permitted to improve his report; he also is not to be treated like on adversary in a civil suit. Where the Writ Court''s jurisdiction is invoked asking for a judicial review, it examines the grievances on the basis of records of the disciplinary proceeding. Allegation of bias, if there is any, should be examined on the basis of facts and circumstances* appearing from such records, and not on the basis of mere assertions and denials made by parties in their affidavits. Thus, simply because the inquiring authority did not file any opposition in the, present case, there was no justification for the learned Judge to automatically conclude that allegations of bias made against him stood established. Accordingly, we find that the findings recorded by the learned Judge on the question of bias cannot be sustained at all.

From the enquiry report we do not find any irrelevant material which the inquiring authority had taken into consideration. His finding on the question of visitors'' attendance on the day was based on the comparative visitors'' statement which was produced as documentary evidence by the Management. We also do not find any contradiction in the findings recorded by the inquiring authority. The findings of the learned Judge are too vague. We find that the inquiring authority after making an assessment of evidence in respect of each article of charge recorded his finding that the charge No. 1 was sustainable as the fact of possession of the intact tickets and recovery thereof from possession of Respondent No. 1 had been proved ; and that the charge No. 2 was also sustainable as the Respondent No. 1, in violation of the usual practice, had kept the intact tickets with him without any valid reason. Thus, we are unable to agree with the learned Judge that the enquiry report is vitiated by the inquiring authority''s failure to act according to law.

The findings of the learned Judge on the actions of the disciplinary authority, we find, besides being vague, are entirely de hors the records of the case. From the final order passed by the disciplinary authority it is apparent that the disciplinary authority dealt with every paragraph of the reply submitted by the Respondent No. 1 in response to the second ''second show cause notice''. In its said decision the disciplinary authority recorded elaborate reasons for accepting the inquiring authority''s findings. We do not find any non-application of mind by the disciplinary authority while passing the final order. The plea of bias was adequately dealt with by the disciplinary authority which rejected the plea. We find from the earlier judgment and order passed by the learned Judge himself on the first writ petition filed by the Respondent No. 1 that not even a whisper had been made at that time regarding the plea of bias. The only point raised in that case was non-application of mind by disciplinary authority while passing the first final order. Thus, on the face of the exhaustive reasons recorded in the fresh final order by the disciplinary authority, we are unable to agree with the learned Judge that the decision is vitiated by series of infirmities. We have already indicated hereinbefore, that the reasons-given by the learned Judge are de hors the records of the case.

The enquiry report clearly shows that the inquiring authority duly assessed all oral and documentary evidence on records, and assigned specific reasons either for accepting or rejecting any piece of evidence. The fact of keeping in his possession the huge number of intact tickets was not denied by the Respondent No. 1 at any point of time. His only defence was that there was no evidence of his reselling the tickets. He justified the possession of the tickets by taking a plea that because of the rush of visitors he was unable to follow the standard practice. On the basis of evidence and materials of records both the inquiring authority and the disciplinary authority found the defence plea of ''rush of visitors'' to be absolutely not correct. Therefore, the explanation given to justify the illegal possession of such huge number of intact tickets by the Respondent No. 1 was found to be not acceptable. So we do not find any infirmity in the action taken by the disciplinary authority against the Respondent No. 1. It was absolutely within its domain to decide as to what punishment was warranted in the facts and circumstances of the case. In view of the justification indicated in the decision taken by the disciplinary authority for imposing the punishment of dismissal from service, we do not find any reason to interfere even with the quantum of punishment. We do not find any reason to hold that the punishment was disproportionate to the gravity of misconduct committed by the Respondent No. 1.

In view of the foregoing reasons we hold that the learned Judge erred in the exercise of the power of judicial review in interfering with the decision taken by the disciplinary authority. Accordingly, we allow this appeal, set aside the impugned judgment and order, and dismiss the writ petition. There will be no order as to costs.

If urgent Xerox certified copy of this judgment and order is applied for by the learned Counsel for the parties, the same may be made available to them upon compliance of all the formalities.

Ashok Kumar Mathur, C.J.

I agree.