Joydeb Dowari vs State of West Bengal and Others

Bhaskar Bhattacharya, A.C.J.

These two writ-applications were heard analogously as common question of law and fads are involved herein. We, however, propose to deliver the judgment separately, one after the other.

This application being W.P.S.T. No. 52 of 2007 under Article 226/227 of the Constitution of India is at the instance of an unsuccessful application u/s 19 of the Administrative Tribunals Act and is directed against order dated November 21, 2006 passed by the State Administrative Tribunal thereby rejecting the application filed by the writ petitioner, in which he challenged the initiation of a departmental proceedings being Howrah GRP, District. Proceeding No. 12 of 2004, the report of the .Enquiring Officer in respect of the said proceedings given under his signature dated 6th January, 2005 and a second show-cause notice dated January 29, 2005 issued by the Superintendent of Police, Government Railway Police, Howrah, proposing punishment of dismissal of service on the ground that the charge had been proved.

The facts giving rise to filing of the said application may be summed up thus:

(a) The writ-petitioner is a constable and was posted at Howrah Government Railway Police. On May 26, 2004, the writ petitioner was placed under suspension vide order dated 26th May, 2004 issued by the Superintendent of Police, GRP Howrah. Subsequently, on May 27, 2004 the writ-petitioner was served with a charge-sheet wherein allegation was made that while attached to Howrah GRP, on May 2, 2004, he was allotted platform-duty at platform Nos. 14 and 15 of the Howrah Railway Station from 12:00 hrs. to 18:00 hrs. On that day, at about 16:00 hrs., a group of fifteen boys was in a queue at platform No. 14 of Howrah Railway Station for availing Coromondal Express for Hyderabad with proper tickets and the writ-petitioner along with other constable, namely, Prasenjit Ghosh and one Anup Tarafdar, an Assistant Sub-Inspector demanded cash of Rs. 20/- per head as a bribe for their sitting accommodation and they having expressed their inability to pay the money, the petitioner drove them away from the queue, as a result, the train left the station hi the meantime and they could not avail of the said train. According to the employer, instead of performing platform-duty, he harassed one group of bona fide passengers and demanded money with some ulterior motive by abusing the post and power and thereby lowered the image of entire police community in general and the Government Railway Police in particular in the eyes of public.

(b) By a letter dated 1st June, 2004 the writ-petitioner submitted his written statement thereby denying all the charges and prayed for permission for appointment of a defence help.

(c) During the enquiry, the prosecution produced three prosecution witnesses and exhibited four documents but no defence witness was produced on behalf of the writ-petitioner. In course of examination of PWs, it appeared that PW-1 had no direct knowledge about the incident. What he said was that on hearing of complaint from one Mohan Yadav, he got information about the alleged misdeed but the said Mohan Yadav could not be examined as prosecution witness as he could not be traced in spite of attempt to serve summons upon him.

(d) The said PW-1 categorically admitted that the Coromondal Express left Howrah at 14:25 hrs. on 2nd May, 2004 and he did not know why the complainant, viz., Mohan Yadav came to Howrah GRP at about 16:00 hrs. when it should take hardly five minutes to come to How rah GRP from Platform No. 14. The other witnesses gave their version on the basis of hearsay.

(e) The Enquiring Officer found the writ-petitioner guilty and subsequently, a second show-cause .notice was issued as to why the writ-petitioner should not be dismissed from service.

(f) On the date of filing of the application before the Tribunal, order of dismissal was served upon the writ-petitioner.

The application filed by the writ-petitioner before the Tribunal was contested by the respondents and ultimately, the Tribunal below by the order impugned herein has dismissed the application.

Being dissatisfied, the writ-petitioner has come up with the present application under Article 226/227 of the Constitution of India.

Mr. Nandi, the learned advocate appearing on behalf of the petitioner vehemently contended before us that the Tribunal below without going through the materials on record, mechanically concluded that the allegation against the writ-petitioner was duly proved. Mr. Nandi submits that the complaint, based on which the writ-petitioner was charge-sheeted, could not be proved by the maker thereof. Mr. Nandi points out that it appears from the records of the proceedings, that the said Mohan Yadav was not traceable and it appeared from the enquiry-report that the address given by him was not in existence and even there was no police station named by the said Mohan Yadav while describing his alleged address. In such circumstances, Mr. Nandi contends that unless the complainant was brought before the departmental proceedings and his client was given an opportunity of cross-examining him, he could not be found guilty.

In other words, Mr. Nandi contends that the findings of the Enquiring Officer was a perverse finding of fact and in such a case, it was the duty of the Tribunal to set aside the said finding and the subsequent consequential order of punishment.

Mr. Saikat Banerjee, the learned advocate appearing on behalf of the State-respondent has opposed the aforesaid contentions advanced by Mr. Nandi. and has contended that in a departmental proceeding it is not always necessary that the actual complainant should be brought for the purpose of facing cross-examination. Mr. Banerjee submits that in this case, the police official, before whom Mohan Yadav made complaint, himself gave evidence and therefore the Tribunal did not commit any illegality in not interfering with the order passed by the Enquiring Officer. Mr. Banerjee further contends by relying upon the affidavit-in-opposition filed by his client in this Court that in connection with the other matter where another charge-sheeted employee, viz. Anup Taraidar was implicated, it appeared that the said Mohan Yadav had left the place two years ago and therefore, for the said reason, Shri Mohan Yadav could not be examined. By relying upon the said fact, Mr. Banerjee tried to convince us that Mohan Yadav did not disclose any wrong information and was not a fictitious person.

Mr. Banerjee further contends that it was the duty of the writ petitioner to approach the Tribunal only after preferring the departmental appeal against the order of dismissal and therefore, the final order dismissing the application passed by the Tribunal should not be interfered with.

After hearing the learned Counsel for the parties and after going through the materials on record we are constrained to hold that in the facts of the present case the finding of the Enquiring Officer was absolutely a perverse one to the highest degree. It has been admitted by PW4 that on the said day the (sic) at about 16:00 hrs. i.e. about one hundred minutes thereafter. The complaint against the petitioner was that he demanded Rs. 20/- from Mohan Yadav and he having not paid the amount, the petitioner hail driven him away from the queue, as a result, he could not avail of the train. In the G.D. entry alleged to have been lodged by Shri Mohan Yadav, his address had been given. In the departmental proceedings, steps were taken for issuing the summons upon Mohan Yadav at the said address, but it appeared that there is no such police station as indicated by him in his address.

In our view, in such a situation, where there was no other evidence witnessing the actual incident of demand of money and driving the said Mohan Yadav from the queue, the finding of the Tribunal that the writ petitioner was guilty of the charge was a perverse finding of fact. The Police Officer has merely stated that a person describing himself to be Mohan Yadav complained that the writ-petitioner demanded Rs. 20/- from him lor the above purpose. Whether the said Mohan Yadav spoke the truth, could be verified if Mohan was brought to the witness box and he faced the cross-examination. We are not prepared to accept the submission of Mr. Banerjee that without giving an opportunity to cross-examine the said Mohan Yadav, his alleged version can be taken into account particularly when it appeared that the address given by him was a nonexistent one. Even if we accept the contention of Mr. Banerjee that in the other proceeding against a different constable, viz. Anup Tarafdar, it appeared that he left two years'' earlier, meaning thereby that Mohan Yadav left the area in the year 2003, there was no occasion for the said Mohan Yadav to give that address in the year 2004. Moreover, the report in other departmental proceeding cannot be relied for the first time before us and the said report itself is a hearsay report obtained from the purported versions of some unknown persons of the locality who did not appear before the proceeding.

It is preposterous to suggest that on the basis of the allegation of a person, another person will lose his job although the former will not be1 examined in the departmental proceedings and the address given by the complainant is found to be fictitious. We have, already indicated that in this case, even there is no other eye-witness to justify that the writ petitioner ever demanded any bribe or that any person named Mohan Yadav was driven away from the queue. The PWs are the witnesses of making complaint by a person who described himself as Mohan Yadav having a particular address but in such address, the so-called Mohan Yadav was not to be found.

Therefore, the finding of guilt was based on hearsay evidence of PW-1, which is not admissible, and at the same time, in the fact of the present case, it is a fit case of disbelieving the version of the so-called Mohan Yadav who did not dare to face cross-examination in the departmental proceedings.

It appears from the order impugned that the Tribunal has in detail discussed the legal principles enunciated by the Supreme Court in various matters regarding the power of the Court of Judicial Review against the findings in a departmental proceedings and ultimately, came to the conclusion that in this case, there is at least some evidence which is acceptable and that those can be relied upon as the requirement in departmental proceedings for proving the charge.

We have already indicated that none of the witnesses is an eye-witness of the incident and at the same time, Mohan Yadav was not traceable. Therefore, the finding is based on no evidence in the eye of law.

We also do not find any substance in the contention of Mr. Banerjee that the Tribunal ought to have dismissed the application, as the final order of dismissal was not challenged. We have already pointed out that in the application u/s 19 of the Act the charge-sheet as well as the finding of the Enquiring Officer and the second show-cause notice was challenged but the final order of dismissal was communicated on the date of filing of the application.

If we find that the finding of the Enquiring Officer was a perverse finding of fact on the basis of which no person could issue even the second show-cause notice and if, on that ground we propose to set aside the findings, the subsequent order of dismissal based on such vicious finding of fact should be automatically set aside even if the said final order is not challenged by filing a fresh application, the same being a consequential order.

We now propose to deal with the decision cited by Mr. Banerjee. In the case of The The East India Hotels Vs. Their Workmen and Others, , relied upon by Mr. Banerjee, apart from the complainant, there were evidence of other witnesses in whose presence the employee committed the misconduct. In such a situation, the Supreme Court held that non-examination of the complainant was fatal. The following observations of the Apex Court in paragraph 6 of the judgment will make the position clear:

It is not necessary that Sethi should have, given evidence. His absence may be due to the fact that it was now for the employer to take action on his complaint and to protect their prestige and reputation which was mainly their affairs. It is, however, apparent, from the evidence that Sethi had complained to Pyare Lal and Pyare Lal speaks of what the respondent did and what happened in his presence. He said even when he asked the respondent what was in the bottle the respondent replied that it contained ''Nimboo Pani'' and that he was pouring the contents in the tub. Bakshi also found whisky in the gingerale bottle. He says that Agrawal was tasting something when he came. The bottle was sealed by him in the presence of Sethi. Agrawal and Pyare Lal. Agrawal also gave evidence and so did Lal Singh. When the respondent was asked to sign the envelope he refused to do so and when he was asked by Lal Singh why he was refusing to do so, his reply was ''Hum Jab esme sign karange tob mar jayange". The respondent did not challenge this statement also. As the enquiry and the dismissal do not suffer from any defect and there is evidence from which the impugned conclusions can be drawn, we set aside the award of the Tribunal and substitute instead the finding that the dismissal of the respondent was justified.

In the case before us, the complainant is the sole witness of the incident and the witnesses before the Proceedings have all heard that the alleged incident occurred. In such a situation, if the complainant is not traceable or his address is a fictitious one, based on the complaint lodged by such a person, the writ-petitioner should not be penalised. Therefore, the principles laid down in the above base cannot have any application to the facts of our case.

We, therefore, find that the findings of the Enquiring Officer that the writ-petitioner was guilty was a perverse finding of fact on the basis of which no second show-cause notice could be issued and as such, the entire proceedings are liable to be quashed and consequently, the subsequent order of dismissal is also set aside notwithstanding the fact that no departmental appeal was filed against such order, in view of the pendency of the matter before the Tribunal challenging the proceedings and the second show-cause notice. The writ-petitioner should be reinstated immediately and will be entitled to all arrears of pay less the suspension allowance received by him as if he was all along working. The arrears be paid within two months from the date of communication of this order; in default, the respondents will pay interest on the arrears at the rate of 8% per annum from the date the same became payable till actual payment.

Since, the subject-matter of the next writ-application being W.P.S.T. No. 53 of 2007 is similar to the one disposed of above and arises out of same transaction, and the application before the Tribunal was filed on the same day the earlier one was filed and was disposed of on the same day by giving the selfsame reason, we also set aside the order passed by the Tribunal on the identical ground and direct the respondents to reinstate the writ-petitioner immediately and to pay the arrears as directed above within the same period with similar default clause.

Both the applications, thus, are disposed of accordingly. In the facts and circumstances, there will be, however, no order as to costs.

Kishore Kumar Prasad, J.

I agree.