Sadhan Chandra Aditya Petitioner vs State of West Bengal and Others

Bhagawati Prasad Banerjee, J.—In his application under Article 226 of the Constitution the petitioner had challenged the disciplinary proceeding including, the chargesheet, report of the enquiry and the punishment of removal from service passed by the Settlement Officer Midnapore on 31st October 1981 which is annexure ''1'' to the petition. The petitioner was appointed as Amin in the year 1974 and in the year 1975 he was functioning as Amin in Settlement Camp No. 171, Hariharpur under Balichak Circle. The petitioner had occasion to make entries with regard to the nature of the land which were made by the petitioner subject to verification of higher officers. In January 1980 when the petitioner was posted, as Amin under Settlement Charge Officer Tamluk, the petitioner was served with a charge sheet issued by the Settlement Officer, Midnapore dated 24th January 1980 wherein it was alleged that while the petitioner was posted as Amin in Settlement Camp No. 171, Hariharpur under Balichak Circle, surreptitiously and unauthorisedly tampered the recorded classification of some plots of land of Mouza Mirzanagar, J.L. No. 432 and Mouza Nachhipur J.L. No. 434 Police Station Debra in Khasra. It was alleged that the change of actual classification of agricultural land to nonagricultural land made by the petitioner was against the interest of the State, inasmuch as, it was alleged that by such change the recorded raiyats in whose khatian these plots were recorded, would be getting benefits in retaining more lands than they, were entitled to hold under the Land Reforms Act. It was. stated that the said Act on part of the petitioner was motivated and was to give benefit to the raiyats concerned. The list of the witnesses that were proposed to be examined in support of the charges, were the ex-charge officer, Kanungo and Amin of the camp. On the basis of the chargesheet a disciplinary proceeding was started and Sri A.K. Pattanayak was appointed as enquiry officer. Dhirendra Nath Dey Kanungo Grade II attached to Balichak Centralized Camp, Midnapore was appointed as Presenting Officer.

In the said disciplinary proceeding before the enquiry officer the petitioner submitted a written statement wherein he had stated that he was not guilty of charges and the charges were as a result of deep rooted conspiracy against him. It was further stated by him that as Amin he was not aware of the legal implication and complication about the recording of classification of lands and that he had not surreptitiously and unauthorized tampered with the recorded classifications of some plots. He had also denied that he had not done any act which is unbecoming of a Government servant and he had not violated any provisions of Government Servant Conduct Rules. It was further denied that he had not surreptitiously changed the recorded classification of some plots and he had done nothing of his own accord against the interest of the State. It was also said by him that he had not done without instruction of superior officer, Anjan Kumar Basu Kanungo Grade I who was posted there and under whose control the petitioner was working. It was further stated that the said Anjan Kumar Basu was very influential. He also stated that in a case like this, a thorough investigation of an advocate of his choice for proving his innocence. It was stated by him that the allegations are undoubtedly serious and have been made in peculiar circumstances and that if he was given the assistance of lawyer he would be able to disclose the malactivities of Anjan Kumar Basu and many others. It was further stated that the statement which he had submitted at the preliminary enquiry, was not voluntary statement and the same was written in quarter of Anjan Kumar Basu who called the petitioner from Amrakuchi through his orderly peon Sankar Das one evening and by threatening, pressure, coercion and misrepresentation he was compiled to write the said statement.

It is the case of the petitioner that on 4th February 1981 the charge sheet was read over by the enquiry officer and he was also told about the documents which would be used for the purpose of proving the charge against the petitioner. But the copy of the document was not shown to the petitioner. It is stated that after reading over the charge and mentioning the documents on which the charge was levelled against the petitioner, the enquiry officer instead of asking the petitioner as to whether he was guilty or not, insisted the petitioner to admit the charges so that he may be dealt with leniently. It is the clear case of the petitioner that the enquiry officer insisted upon the petitioner to admit the charges in presence of the witnesses who came to depose against the petitioner at the enquiry. It is stated that at the instance of the enquiry officer'' the petitioner prepared a statement in Bengali as per direction and dictation of the enquiry officer and that it was also stated on affidavit that at the instance of the enquiry officer, the petitioner mentioned that the written statement which the petitioner had submitted in support of his defence on 18th February 1980, should be treated as cancelled. On 4th February, 1981 the petitioner inter alia stated that in the year 1975 he had no knowledge about recording of classification of record of rights and that due to ignorance and mistake, the said illegal things were made. It was further stated that even though the said mistake was committed by him due to ignorance, the petitioner should get some, punishments and that under such circumstances, he had also stated that he was admitting mistake which he has committed and that he has also given an undertaking that he will not commit such mistake and/or such illegal things in future and in future there is any occasion on the part of the petitioner to do all these things he will accept proper punishment. Under such circumstances, in the said statement the petitioner stated that the petitioner should be pardoned for the purpose of saving him and his family.

On the basis of the statement given on the circumstances stated above on 4th February. 1981, the enquiry officer inter alia stated in his report dated 4-8-1981 that "he has prayed for mercy on the grounds that he was first appointed as Amin in 1974 and committed such misdeeds. For the first time in 1975 while functioning as Amin in Settlement Camp No. 171 Hariharpur under Balichak Circle by tampering records and changing classification of some plots of land in khasra as well as in the records of rights due to his ignorance and also on the ground that any kind of punishment affecting his service would throw himself and his dependent family into the jaws of starvation and death. By the documentary evidence as well as by him own admission the delinquent Shri Sadhan Ch. Aditya, Amin now posted at Halka Camp No. 421 P.S. Tamlukhas been proved to be guilty of serious charges. The offences committed by him knowingly or unknowingly are not so very simple. The plea of his ignorance or inexperience as only one-year-old service holder in the post of an Amin can hardly be as much satisfactory as not to inflict any punishment on him. But he may deserve some amount of relief in the consideration of his truthfulness and frank submission and in consideration of his prayer based the distressful condition of his family, inasmuch as, this is his first offence Undoubtedly grave offence committed by him have normally merited his discharge from his service but his prayer for mercy may be considered with a touch of humanity and social security of a family living within the territory of a social welfare State. Considering all aspects I am of the opinion that 2 (two) consecutive annual increments in his existing pay scale of Amin may be stopped. Further, a note of warning may be issued to Shri Sadhan Ch. Aditya, Amin intimating therein that recurrence of such in future, would make him liable him to severe disciplinary action and would cause his dismissal from his service."

On the basis of the enquiry report Sri. N.K. Reghupathy Settlement Officer, Midnapore issued a second show cause notice proposing punishment of removal from service disagreing with the recommendation made by the enquiry officer as to the punishment. The disciplinary authority, namely the Settlement Officer proceeded on the footing that he was forced to come for the'' inescapable conclusion that the delinquent is indeed guilty of the charge framed against him, namely tampering of the recorded classification of some plots of land of Mouza Mirzanagar in khasra and in some cases in khasra and khatian. It was observed that the serious charge levelled against which has been proved warrants the sternest possible punishment to be awarded to the delinquent and accordingly, held that the-delinquent was liable for removal from service. As against these charges of changing the nature and character of the land in the record of rights, the disciplinary authority proceeded on the footing that the charges against the petitioner were tampering of the recorded classification. It was further submitted that by such change in the khasra record of rights" there are elaborate procedures as provided under the West Bengal Land Reforms Act for correction inasmuch as, under the provisions of the West Bengal Land Reforms Act the mass khasra is made while making survey and inspection of land. This mass khasra is submitted to the authority whereupon a draft record of rights is published. Section 51A of the West Bengal Land Reforms Act provides that "When a record of rights has been revised or prepared the Revenue Officer shall publish a draft of the record so revised or prepared in the prescribed manner and for the prescribed period and shall receive and consider any objections which may be made during such period to any entry herein or to any omission there from and when all such objections have been considered and disposed of according to such rules as the State Government may make in this behalf, the Revenue Officer shall finally prepare the record and cause such record to be finally published in the prescribed manner."

The relevant rules in this behalf provide that record of rights has to be corrected or revised by the following processes :

(i) Traverse survey, (ii) Cadastral survey, (iii) Preliminary record writing (khanapuri), (iv) Local explanation (Bujharat), (v) Attestation, (vi) Publication of the draft record of rights (vii) Disposal of objections, (viii) Preparation and publication of the final record of rights. The step which is relevant for this purpose is the preliminary recording writing (khanapuri). At this stage the draft record of rights shall be revised or prepared. The draft record shall consist of statements of rights which are styled the khatians. There shall ordinarily be a separate khatian for each person interested, or each group of persons jointly interested, in the. land and each khatian shall show the rights and liabilities of each person or group of persons according to the particulars referred to in. Rule 23. At this stage all such particulars shall be entered in the draft record of rights. At this stage there shall also be prepared a field index or khasra arranged according to the serial numbers of the fields in the - villages. This field index shall not form part of the draft record of rights.

If there was any mistake or otherwise, that was at the stage of khanapuri stage and that thereafter it was the duty of the Revenue Officer to proceed with other stages before it "could be made final. In the instant case, the concerned authority proceeded on an erroneous footing that this khasra is final and binding on the parties. There are several procedures as disclosed before it is made final. In the instant case, there was no evidence whatsoever by such change in the nature and character of the land and any raiyat as a matter of fact, had been able to retain more land, or in other words, the suggestion that was given in the charge-sheet, was that the character of the land was changed from agricultural and non-agricultural and by that process, the raiyats had been able to retain more land. No case was made out that each raiyat by virtue of such mistake in classification of the land was able to retain any excess land. The more allegation of mistake per se does not amount to misconduct. It is now firmly established principle that in order to constitute misconduct, there must be a motive behind some omission or error. This principle had been laid down by the Supreme Court in the case of Union of India (UOI) and Others Vs. J. Ahmed, Simple omission and commission without any motive does not and cannot amount to misconduct. If it is established that by such mistake committed by the petitioner some raiyats have been able to retain more land by practising fraud, in that event, it would have been a case of misconduct. There is no allegation and no case has been made out that the petitioner had done so at the instance and machination of others. Motive has to be proved by fact that in order to constitute misconduct, there must be a correction and consequently, wrongl gain to any raiyats in final stage has to be established. If there had not been any wrongful gain by any raiyat by such mistake or wrongful correction and consequential retaining of more land at the cost of the State''s interest, there could not be any misconduct in the facts and'' circumstances of the case. There may be acts which may on the face of it constitute misconduct, inasmuch as, by such unilateral acts, the interest of the State is put to jeopardy. In the absence of any specific allegation that this was done for the benefit of certain raiyats for causing loss to the state, this allegation on the face of it does not amount to misconduct.

In the instant case, there had been a serious allegation against the respondent no. 3 A.K. Pattanayak, Charge Officer and enquiring authority in -paragraphs 14 and 15 wherein it was specifically alleged by the petitioner that the letter dated 4th February 1981 was submitted by him as per direction of the enquiry officer who told him unless this is done, serious consequence would follow and that if it was done, in that event, he would be dealt with leniently. By not filing affidavit, even when he was a party, the allegation made in paragraphs 14 and 15 remains uncontroverted and this court has to proceed on the footing that these allegations are made correct. The enquiry officer had as a matter of fact, recommended on the basis of such statement a nominal and minor punishment of stoppage of two consecutive annual increments as Amin and a note of warning intimating him that recurrence of such in future, would liable him to severe disciplinary action and would cause his dismissal from his service. This stand of the enquiry officer in the enquiry report while making recommendation with regard to the punishment, is consistent with the letter dated 4th February 1981. Under circumstances, I have no hesitation in holding that the enquiry officer had recommended a minor punishment in view of the fact that it is he who had inspired, encouraged and induced the petitioner to admit the allegation in writing on 4-2-81 on the understanding that if it is done so, he will be dealt with leniently and as a matter of fact, the enquiry officer had dealt with him very leniently.

The disciplinary authority found the petitioner as guilty of tampering of record classification. The word tampering'' according to Dictionary, means "to carry on in hand or improper negotiation (as by Bribe)...... to alter for an improper purpose or in an improper way". In the instant case, there was no evidence that the petitioner had done these changes with ill-motive and at the instance and machination of a third party and sub-serve of third party''s interest or otherwise. The khasra (draft) is not final and for preparing a wrong and illegal draft it cannot be said that this was done finally. The khasra (draft) has to be made final by a series of processes by some superior officers. The superior officers cannot avoid their liabilities and responsibilities in the matter. A draft is always a draft and a draft has to be corrected and made final. The petitioner is responsible for making a bad and wrong draft, but for making a wrong draft, one may be found to be inefficient, incompetent which may debar him from getting any promotion, but act of inefficiency or incompetency cannot be equated with the term misconduct. In the instant case also there are serious allegations made by the respondent no. 5 before the enquiry officer in paragraph 10 of the writ application. No affidavit-in-opposition was filed by him controverting the serious allegations made against him. An affidavit was affirmed in a ritualistic manner by present Settlement Officer, Dilip Kumar Chowdhury denying all allegations against the specified officer who was a party. This affidavit filed on behalf of the respondent nos. 1 to 3 against whom no personal allegation was made, is of no use in the facts and circumstances of the case.

Mr. Banerjee lastly contended that in the facts and circumstances of the case, the petitioner admitted the allegations from the clear understanding that he will be dealt with leniently and he had made such confession on the basis of the inducement and encouragement made by the enquiry officer which has been denied by the enquiry officer and on the contrary the enquiry officer in furtherance thereof recommended a minor punishment of stoppage of two consecutive annual increments. In the facts and circumstances of the case, this court must hold that the punishment of removal from service was shockingly disproportionate. The allegations made against the respondent nos. 4 and 5 had not been denied. In the absence of denial of such allegations the writ petition is bound to succeed. In any event, when the petitioner had volunteer on the basis of such inducement and dictation made by the enquiry officer and that the enquiry officer who was responsible for such inducement and to procure such a confession, had made recommendation of imposition of minor punishment, the authorities are bound to impose minor punishment and they had no jurisdiction to impose major punishment in the facts and circumstances of the case.

It is now well established principle that the court will quash exercises of discretionary powers in which there is not a reasonable relationship between the objective which is sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior courts are wholly out of proportion to the relevant misconduct. The possibility that proportionality would be recognized as a separate head of judicial review was first raised by Lord Diplock in Council of Civil Service Unions vs. Minister for the Civil Service (1985) AC 374 at 410 = (1984) 2 AIIER 935 at 950. A principle of proportionality has now been recognized as a separate and independent ground of judicial review. The principle of proportionality is based on the principle that relevant matters are to be considered, irrelevant matters are not to be taken for an improper purpose and that disproportionally amounts to unreasonableness. What is unreasonableness, is also arbitrary, proportionality simply is one aspect of the question of reasonableness. Supreme Court in the case of Ved Prakash Gupta Vs. Delton Cable India (P) Ltd., held in connection with the dismissal upon workmen under Government of Dismissal Act and held that punishment that was awarded, "is shockingly disproportionate regard being had to the charge framed against him. It is also of the opinion that no responsible employer would ever impose in like circumstances the punishment of dismissal to the employee and that victimization or unfair labour practice would well be inferred from the conduct of the management in awarding the extreme punishment of dismissal for a flimsy charge of abuse of some worker or officer of the management by the appellant within the premises of the factory. We, therefore, hold that the termination of the appellant''s. service is invalid and unsustainable in law and he is entitled to reinstatement with full back wages and other benefits including continuity of service". In the Case of Bhagat Ram Vs. State of Himachal Pradesh and Others, Supreme Court observed at page 460 that "it is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of misconduct, would be violative of Article 14 of the Constitution. Having been inferred with all relevant considerations, we are of the opinion that no useful purpose would be served by a fresh enquiry". In this connection, it may be mentioned that Supreme Court in the case of Ranjit Thakur vs. Union of India, reported in 1987 SC 2386 at para 9 at page 2392 noted with the approval of the observation of Lord Diplock in Council of Civil Service Unions'' case (supra) as well as the decision of the Supreme Court in Bhagat Ram''s case (supra) it was observed by the Supreme Court that "Judicial review, generally speaking, is not directed against a decision, but is directed against the ''decision making process''. The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be no disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence, of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review". Lord Diplock in Council of Civil Service Unions'' case (supra) observed that "Judicial Review has I think, developed to a stage today when without retierating any analysis of the step by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call ''illegality'', the second ''irrationality'' and the third ''procedural impropriety''. That is not to say that further development on a ease by case basis may not in course of time add, further grounds. I have in mind particularly the possible adoption in the future of the principle of proportionality'' which is recognized in the administrative law of several of our fellow members of the European Economic Community". The observation of Frankfurter J. in the case of Vitarelli vs. ''Seaton, 359 US 535 was that "If dismissal from employment is based on a defined procedure, even though generous beyond the restuetrous that bind such agency, that procedure must be scrupulously observed,''..............This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword". Frankfurter J. also observed that The history of liberty has largely been the history of observance of procedural safeguards". In Benjamin Mc Nabb vs. United States of America, (1942) 318 US 332 this observation was noted with the approval of the decision of the Supreme Court in Ranjit Thakws case (supra). In view of the peculiar facts and circumstances of the case and following the principles laid down by the Supreme Court in the above cases, I am of the view that the punishment of removal from service was shockingly disproportionate and cannot be sustained on any grounds whatsoever. Even though the allegation per se does not amount to misconduct, but I am not inclined to grant any relief when the petitioner had admitted the allegation and voluntarily to accept any minor punishment whereupon the enquiry officer has also accepted the position and recommended for a punishment and under such circumstances the petitioner had abandoned and waived, his right to allege that the allegation per se did not allege to misconduct, but the petitioner was bound to succeed on the ground of imposition of a major punishment which in the instant case, in my view", is shockingly disproportionate. When the facts are all admitted that the petitioner had no knowledge and he had done so under the dictation of the respondent no. 5, the respondent nos. 4 and 5 have not come forward before this court to deny the personal specific allegation made against them. The manner in which the disciplinary authority has proceeded, in my view, has resulted in substantial failure of justice, in view of the facts and circumstances of the case. The order of punishment dated 31st October 1981 which is annexure I and the order of the appellate authority who had considered the appeal in a casual manner and dismiss the same by the order dated 30th April 1982 which is annexure ''K'' to the petition are set aside and the disciplinary authority namely the Settlement Officer, Midnapore is directed to, award any suitable minor penalty and/or punishment in the facts and circumstances of the case within a period of three months from today.