Radha Kanta Sarkar vs The State of West Bengal and Others

Tapabrata Chakraborty, J—This writ application has been preferred challenging, inter alia, the order dated 7th December, 2010 passed by the disciplinary authority, the order dated 21st March, 2011 passed by the appellate authority and the memorandum dated 13th November, 2014 issued by the respondent No. 6 pertaining to the petitioner''s application for review.

Shorn of unnecessary details, the facts are that the petitioner was initially appointed as Station Master, Muri Station, Jharkhand on 19th July, 1996 and while serving under the railways, the petitioner participated in a selection process for appointment to the post of Lecturer in Bidhan Chandra College (hereinafter referred to as the said college) upon availing "no objection" from the competent authority. The petitioner emerged to be successful in the selection process and accordingly to join the new post, he tendered his resignation from railway service and he was released by a letter dated 18th September, 2006 issued by the Divisional Personnel Officer, Ranchi Division (hereinafter referred to as DPO). The petitioner joined the post of lecturer on 21st September, 2006 and he was confirmed in terms of the provisions of Section 5 of the West Bengal College Teachers (Security of Service) Act, 1975 (hereinafter referred to as the said Act of 1975). In the midst of such service a memorandum dated 18th January, 2008 was issued by the DPO to the Principal of the said college alleging inter alia that the petitioner was absenting unauthorisedly from his duties with effect from 24th October, 2006. Accordingly, the petitioner was asked to answer certain queries incorporated in a memorandum dated 5th February, 2008 and the same was replied to by the petitioner on 13th February, 2008. Thereafter, a show cause notice was issued on 23rd July, 2008 and subsequently by a memorandum dated 29th August, 2008 the Principal of the said college was intimated by the DPO that the document dated 18th September, 2006 is a fake document and that the petitioner was removed from railway service with effect from 4th March, 2008. Thereafter, the Principal of the said college lodged a complaint against the petitioner on 4th November, 2008 and the same was treated as the First Information Report. In the said complaint it was, inter alia, alleged that the letter dated 18th September, 2006 is a fake one and that no such letter was issued by the railway authorities and on the basis of the same a case was registered under Section 465/468/471 of the Indian Penal Code (hereinafter referred to as IPC) and during pendency of the same the petitioner was placed under suspension by a memorandum dated 15th November, 2008 and a charge sheet was issued on 15th December, 2008 and on the self-same date an enquiring authority was appointed. Challenging the order of suspension and the charge sheet the petitioner preferred a writ application being W.P. No. 7332 (W) of 2009 and the same was dismissed on 22nd June, 2009 observing, inter alia, that if ultimately the petitioner succeeds and is acquitted in the criminal proceeding, he would be free to call upon his employer to review the decision, if in the meantime the college decided to inflict any punishment in the disciplinary proceedings. Subsequent thereto on the basis of an enquiry report dated 13th March, 2009 the petitioner was issued a second show cause notice dated 5th October, 2010 and thereafter an order of removal from service was issued by the disciplinary authority on 7th December, 2010. Challenging the said order of dismissal a writ application, being W.P. No. 23899 (W) of 2010, was preferred but on 5th January, 2011 the same was withdrawn for preferring a statutory appeal and thereafter the petitioner filed such statutory appeal and the same was dismissed by the appellate authority by an order dated 21st March, 2011. Subsequent thereto by a judgment dated 28th August, 2014 passed in T.R. Case No. 46/2012 the petitioner was acquitted and thereafter the petitioner submitted a review application before the disciplinary authority and in reply to the same the petitioner was intimated by a letter dated 13th November, 2014 that the petitioner''s prayer was considered in the governing body meeting held on 10th November, 2014 and a decision was adopted to communicate the same to the concerned authorities.

Mr. Dhar, learned senior counsel appearing for the petitioner submits that all the four charges levelled against the petitioner in the disciplinary proceeding originate from the alleged fact that the memorandum dated 18th September, 2006 is a fake document. Elaborating such submission, he points out that the last eight words of charge I would reveal that it was based on a false declaration being memorandum dated 18th September, 2006, the charge II is also relatable the memorandum dated 18th September, 2006 inasmuch as the declaration was in fact pertaining to the said memorandum since there was no allegation against the petitioner that he was involved in any part time work, the charge III is also based on the issue as to whether the said memorandum dated 18th September, 2006 was a genuine document and charge IV is also specifically related to the said memorandum dated 18th September, 2006 and the same was construed by the disciplinary authority to be a fake one.

According to Mr. Dhar, the self-same issue as to whether the memorandum dated 18th September, 2006 is a fake one was involved in the criminal proceedings as would be explicit from the complaint dated 4th November, 2008 and the judgment dated 28th August, 2014 delivered in T.R. Case No. 46/2012. The competent Court acquitted the petitioner of the alleged charges under Section 465/468/471 and that on the rudiments of such honourable acquittal, the petitioner is entitled to reinstatement upon review of the order of removal as imposed by the disciplinary authority.

He further submits that in view of the specific observations made by the Hon''ble Court in the judgment dated 22nd June, 2009 passed in W.P. No. 7332 (W) of 2009 the respondents ought to have considered the petitioner''s review application but a perusal of the impugned memorandum dated 13th November, 2014 would reveal that the same suffers from total non-application of mind and the petitioner''s review application has been rejected in a mechanical manner.

Drawing the attention of this Court to the proviso to Section 9(2) of the said Act of 1975, Mr. Dhar submits that the punishment under Clause VI of Section 9(1) of the said Act could not have been imposed upon the petitioner, who was admittedly a confirmed teacher, in the absence of any ground of being persistently engaged in activities prejudicial to the academic or financial interest of the college or habitual dereliction of duty or physical infirmity likely to interfere with the normal discharge of his duties or mental derangement or moral turpitude. In aid of his submission to the effect that the petitioner''s conduct cannot be brought within the ambit of "moral turpitude", he has placed reliance upon the "Advanced Law Lexicon" and the judgments delivered in the following cases:

A) Chandgi Ram Thakar Dass Vs. Election Tribunal and Assistant Development Commissioner for Panchayat Election, Delhi and Others, AIR 1965 P&H 433 : (1965) 2 ILR (P&H) 160 .

B) Prem Kumar Vs. State of Himachal Pradesh and Others, AIR 1980 HP 45 .

C) Baleshwar Singh Vs. District Magistrate and Collector, Banaras and Others, AIR 1959 All 71 .

D) Mangali Vs. Chhakki Lal and Others, AIR 1963 All 527 : (1963) CriLJ 489 .

E) Brij Kishore Shukla Vs. M.P.S.R.T. Corporation and Others, (1997) 3 LLJ 551 : (1995) 40 MPLJ 870 : (1995) MPLJ 870 .

F) Pawan Kumar Vs. State of Haryana and another, (1996) 5 AD 1 : AIR 1996 SC 3300 : (1996) 73 FLR 1501 : (1996) 5 JT 155 : (1996) LabIC 1740 : (1996) 2 LLJ 703 : (1996) 4 SCALE 480 : (1996) 4 SCC 17 : (1996) 2 SCR 392 Supp : (1996) 2 SLJ 9 : (1996) 2 UJ 184 .

He further submits that the entire sequence of facts would reveal that there was no intention on the part of the petitioner to gain anything and/or to ruin anything. The petitioner has become a victim of circumstances for which he suffered a lot and when the memorandum dated 18th September, 2006 has not been established to be a fake document in the criminal proceedings, the order of removal from service ought to have been reviewed by the authorities in consonance with observations made by the Court in the earlier writ application being W.P. No. 7332 (W) of 2009. In aid of such submissions reliance has been placed upon the following judgments:--

a) Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, AIR 1999 SC 1416 : (1999) 2 CTC 579 : (1999) 82 FLR 627 : (1999) 2 JT 456 : (1999) 1 LLJ 1094 : (1999) 2 SCALE 363 : (1999) 3 SCC 679 : (1999) SCC(L&S) 810 : (1999) 2 SCR 257 : (1999) AIRSCW 1098 : (1999) 3 Supreme 376 .

b) G.M. Tank Vs. State of Gujarat and Another, AIR 2006 SC 2129 : (2006) 3 CTC 494 : (2006) 11 JT 36 : (2006) 3 LLJ 1075 : (2006) 5 SCALE 582 : (2006) 5 SCC 446 : (2006) SCC(L&S) 1121 : (2006) 3 SCR 253 Supp : (2006) 3 SLJ 312 : (2006) AIRSCW 2709 : (2006) 4 Supreme 740 .

Mr. Roy, learned advocate appearing for the college authorities could not dispute the petitioner''s contention to the effect that the alleged charges in the disciplinary proceeding originate from the memorandum dated 18th September, 2006 and that the said document could not be established to be a fake document in the criminal proceeding.

Drawing the attention of this Court to the reply dated 13th February, 2008 filed by the petitioner to the memorandum dated 5th February, 2008 issued by the respondent No. 5, Mr. Roy, however, submits that the petitioner has admitted that he did not submit any resignation letter to the railway authorities with effect from 21st September, 2006 and that he had drawn salary from the railways for the period with effect from 1st September, 2066 till 23rd October, 2006 and that the petitioner did not submit any written statement of defence and did not even file any reply to the enquiry report though he was granted time, as would be explicit from the order of the enquiring authority and the order passed by the respondent No. 8.

Mr. Roy further submits that it is a well established proposition of law that mere acquittal or discharge from a criminal case does not confer absolute immunity upon an employee from any form of punishment in a departmental proceeding based on the same or similar set of charges and that the standard of proof required in a departmental enquiry differs materially from the standard of proof required in a criminal charge. The former is that of preponderance of probability whereas the latter is that of proof beyond a reasonable doubt. In support of such contention reliance has been placed upon the judgment delivered in the case of Satyanarayan Pandey Vs. The State of West Bengal and Others, (2009) 3 CALLT 442 .

Mr. De, learned advocate appearing for the State respondents submits that the college authorities suspended the petitioner on 15th November, 2008 and the order of removal from service was passed on 7th December, 2010. Thereafter the statutory appeal was rejected in the month of June, 2011 and the judgment in T.R. Case No. 46 of 2012 was delivered on 28th August, 2014 and the present writ application was filed on 11th March, 2015 after issuance of the order dated 13th November, 2014 in the petitioner''s review application dated 28th October, 2015 and from such sequence of facts it is explicit that from 15th November, 2008 till date no service has been availed from the petitioner. In the backdrop of the said facts, if the petitioner is directed to be reinstated at this stage, the entire financial burden would have to be borne by the State respondents and that too when there had been no utilisation of the petitioner''s service from 15th November, 2008 till date.

In reply, Mr. Dhar submits that the contents of the petitioner''s statements in the letter dated 13th February, 2008 cannot be construed to be an admission on his part since the petitioner did not submit the resignation on 21st September, 2006 in view of the general practice prevalent in the railways to the effect that for leaving the job and for joining a better one, one is asked to go for sick leave and after actual joining the resignation letter is submitted. As regards drawal of salary from the railways, the petitioner has categorically stated that he was compelled to do so by the authorities.

I have heard the learned advocates appearing for the respective parties and I have considered the materials on record.

A close scrutiny of the alleged four charges in the disciplinary proceeding reveals that all the said charges originate from the memorandum dated 18th September, 2006 and the entire gamut of facts is relatable to the memorandum dated 18th September, 2006. All the charges against the petitioner in the domestic enquiry and in the criminal case were almost identical and based on the same set of facts and evidence and in view of the judgment delivered in the criminal proceeding the finding of the petitioner''s guilt in the departmental proceeding on identical charges cannot be sustained.

It is not an absolute proposition of law that the right of an employer to punish a delinquent employee in a disciplinary proceeding stands always preserved even if the delinquent employee is acquitted from the same charges in a criminal case brought against him. When the petitioner has been acquitted after full consideration of prosecution evidence and when the prosecution had miserably failed to prove the charges leveled against the petitioner, it can be said that the petitioner was honourably acquitted.

In the conspectus of facts, I am of the opinion that the subsequent acquittal of the petitioner from the criminal proceeding has a direct bearing on the four charges so far as the disciplinary proceeding is concerned and that as such the college authorities ought to have considered the petitioner''s review application in its proper perspective instead of denying consideration in a mechanical manner.

This Court also finds substance in the argument of Mr. Dhar to the effect that as there was no allegation that the petitioner was persistently engaged in activities prejudicial to the academic or financial interest of the college or of any habitual dereliction of duty or of any physical infirmity, mental derangement or moral turpitude, question of imposition of punishment under clauses VI and VII of Section 9(1) of the said Act of 1975 does not occasion. No material has been produced before this Court to suggest that any third party right has been created in respect of the post of lecturer in which the petitioner was appointed and no statement to that effect finds place in the resolution of the governing body dated 10th November, 2014 on the basis of which the memorandum dated 13th November, 2014 was issued.

It is well settled that a Writ Court is not altogether precluded from examining the legality of punishment awarded in the disciplinary proceeding. It is inconceivable that even after been cleared in the criminal proceeding from the finding of guilt, the order of removal passed by the disciplinary authority can be continued.

In all fairness and propriety demands that when major disciplinary punishment is sought to be inflicted which would tantamount to removal from service there should be absolute fair play in action. The petitioner is out of service on and from 7th December, 2010 till date and prior thereto the petitioner had been in suspension on and from 15th November, 2008 and in the backdrop of the said facts the financial distress suffered by the petitioner needs to be appreciated. It also needs to be taken into consideration that sustenance of the order of removal would affect the life and livelihood of the petitioner and his family. However, at the same time it also needs to be taken into consideration that the petitioner did not file his written statement of defence and did not reply to the enquiry report and waited for the verdict in the criminal proceeding and the burden that would be suffered by the State respondents in the event a decision towards reinstatement with full back wages is passed. In view the submissions made on behalf of the college authorities it appears that there is no bitter relationship amongst the petitioner and the college authorities and that as such the reinstatement of the petitioner would not tantamount to foisting a cantankerous employee upon the college.

For the reasons discussed above, the order dated 7th December, 2010 passed by the disciplinary authority, the order dated 21st March, 2011 passed by the appellate authority are set aside and the respondents are directed to reinstate the petitioner with all continuity of service, within a period of 6 weeks from the date of communication of this order.

The disciplinary authority is also directed to impose a suitable lesser punishment upon the petitioner except the penalties under Section 9(1)(V), Section 9(1)(VI) and Section 9(1)(VII) of the said Act of 1975.

Reinstatement does not necessarily result in payment of back wages, which is independent of reinstatement. The factual scenario, equity and a number of other factors including the conduct of the charged officer are required to be taken into consideration while determining back wages. Bearing in mind the broad parameters and the factors as discussed above, I am of the opinion that the facts at hand do not warrant payment of back wages to the petitioner.

With the above observations and directions, the writ application is disposed of.

There shall, however, be no order as to costs.

Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.