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Judgment
Debasish Kar Gupta, J.—This writ application is filed by the petitioner challenging the disciplinary proceeding initiated against the petitioner by issuing a charge-sheet dated October 15, 1996 and the order of punishment dated October 12, 1998 passed therein.
The petitioner, while working for gain under the respondent authority as a "Sramik", received a charge-sheet dated October 15, 1996. The article of charges disclosed that there was disruption of power at premises No. AE-329 at Harry Guest House, Salt Lake, Kolkata. The petitioner along with the other went to this spot for repairing works. The repairing was done by the petitioner and another employee of the respondent authority on receipt of bribe amounting to Rs.1500 on May 27, 1996 from the Manager of the above Guest House. Subsequently, the owner of the above Guest House lodged a complaint to that effect. The petitioner submitted his reply to the above charge-sheet. A prayer was made by the petitioner to the Enquiry Officer for supply of eight documents out of which four documents were supplied to him. The other documents were not considered to be relevant according to Enquiry Officer. The enquiry report was submitted to the respondent authority. The disciplinary authority sent the second show-cause notice dated February 12, 1998 to the petitioner proposing the punishment of "dismissal from service". Thereafter, the petitioner passed the impugned order of punishment dismissing the petitioner from the services of the respondent authority. Hence this writ application.
Mr. Bidyut Kr. Mukherjee, learned Senior Advocate appearing on behalf of the petitioner, submits that the Manager of the Harry Guest House, namely, Mr. S.D'' Cruze, though allegedly gave the bribe to the petitioner, did not lodged the complaint. He submits that the charge-sheet was issued on the basis of the preliminary enquiry report. But the copy of that enquiry report was not delivered to the petitioner. It is also submitted by him that the above transaction was allegedly recorded in the accounts book as repairing charges. The accounts book was not produced in course of enquiry proceeding. So, the charges levelled against the petitioner were not proved in the reply to the show-cause notice the above point was raised by the petitioner. But the disciplinary authority did not accept the contention of the petitioner. So, the order of punishment is liable to be set aside.
In support of the case of the petitioner the decisions of State of Mysore Vs. S.S. Makapur, , Hindusthan Paper Corporation & Ors. v. Manindra K. Ghosh, reported in 1991(3) S.L.R. 776, Harekrishna Das v. Union of India & Ors., reported in 1992 Lab. I.C. 265, Jaywant Bhaskar Sawant v. Board of Trustees of the Port of Bombay & Ors., reported in 1994(6) S.L.R. 555, Mohd. Quaramuddin (Dead) by Lrs. Vs. State of A.P., Committee of Management, Kisan Degree College Vs. Shambhu Saran Pandey and Others, B. Vasantha Kumar v. The Chairman, Kaktiya Grameena Bank, Warangal District & Ors., reported in 1995(1) S.L.R. 398, B.C. Chaturvedi v. Union of India & Ors., reported in AIR 1996 SCC 484, State of U.P. Vs. Shatrughan Lal and Another, , South Bengal State Transport Corporation v. Sapan Kumar Mitra & Ors., reported in 2006(2) SCC 584, Godfrey Phillips India Ltd. v. Ajay Kumar, reported in 2008(2) Supreme To-Day, 851 and Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, reported in AIR 2001 SC 24 are relied upon by the learned counsel.
It is submitted by Mr. Bhaskar Mitra, learned Advocate appearing for the respondents, that the charge-sheet was issued on the basis of the complaint of the owner of the Guest House. The statement of Manager of the Guest House was further annexed to the charge-sheet. The list of documents on the basis of which the article charges was proposed to be sustained was also enclosed to the charge-sheet. No, preliminary enquiry report was taken into consideration for initiating the disciplinary proceeding under reference. Therefore, the allegation of non-supply of that report cannot be sustained in law. The prayer for supplying of documents to the petitioner was considered by the enquiry officer and the relevant documents were supplied to him. With regard to the production of the accounts book of the Guest House, it is submitted by Mr. Mitra that the same was a secondary evidence. The fact of taking bribe was proved on the basis of the oral evidences of the Manager and the Cashier of the Guest House. The disciplinary authority, while passing the impugned order of punishment, took into consideration the enquiry report, the evidences adduced by the witnesses and the reply to the second show-cause notice of the petitioner. All the points raised by the petitioner in the reply to the second show-cause notice were taken into consideration by the disciplinary authority. Therefore, there was no illegality or arbitrariness in passing the order of punishment.
Mr. Mitra relies upon the decisions of Chandrama Tewari Vs. Union of India (UOI) (through General Manager, Eastern Railways), , Vijay Kumar Nigam (dead) through Vijay Kumar Nigam (dead) through LRs. Vs. State of M.P. and others, , State of U.P. Vs. Harendra Arora and Another, , Kumaon Mandal Vikas Nigam Ors. v. Girja Shankar Pant & Ors., reported in AIR 2001 SC 24, Maharashtra State Board of Secondary and Higher Secondary Education Vs. K.S. Gandhi and Others, and State of Assam and Another Vs. Mahendra Kumar Das and Others, in support of his submissions.
Having heard the learned counsel appearing for the respective parties and after considering the facts and circumstances of this case, I find that the charge-sheet was admittedly issued on the basis of the a complain dated June 3, 1996 of the owner of the Guest House under reference. He was not present at the time of the alleged incident. The basis of his complain was a statement dated June 27, 1996 of Mr. S. D'' cruse who was one of the eye-witnesses. On a perusal of the charge-sheet under reference, I find that the same was not prepared on the basis of any preliminary report. Therefore, the allegation of preparing the charge-sheet on the basis of a preliminary report as also rejecting the prayer for supplying copy of that report is baseless.
Regarding the supply of the three documents, namely (i) Trade licence and police permission of Harry Guest House, (ii) Registrar of incoming and outgoing customers and enrolments of shops and establishment and registrar relating thereto, I find that the enquiry proceeding under reference had no nexus with the aforesaid items No. (i) and (ii) and (iii) Books of accounts of Harry Guest House for the financial year 1996-97. Regarding the production of the books of accounts of Harry Guest House, I find from the deposition of P.W.2 that the payment of Rs. 1,500/- was recorded in the cash book under the heading "Electrical Maintenance". Admittedly, the above Cash book was not produced in course of enquiry proceeding. Production of the above books of accounts was only required for the purpose of corroborating the statements of the PW 6 of taking bribe by the petitioner. In this regard the provisions of sections 59 and 60 of the Indian Evidence Act, 1872 are quoted below:
"59. Proof of facts by oral evidence. - All facts, except the [contents of documents or electronic records], may be proved by oral evidence.
Oral evidence must be direct. - Oral evidence must, in all cases whatever, be direct; that is to say �
If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
It if refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treaties if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable:
Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection."
Applying the above provision of law I find that the allegation against the petitioner of taking bribe was proved by oral evidence of two eye-witnesses. It is noteworthy that the enquiry officer observed in his report that there was no previous enmity of the proprietor or Manager of the Guest House with the petitioner offer even any previous acquaintance. P.W.6 fully corroborated the evidence of P.W.5 and those witnesses were cross-examined but veracity could not be shaken. I find substance in the submissions of Mr. Mitra that the books of accounts of Harry Guest House was nothing but a secondary evidences. The scope of judicial review with regard to the finding of enquiry officer in a judicial review was discussed by the Hon''ble Supreme Court in the Matter of R.S. Saini Vs. State of Punjab and Others, as follows:
"16. Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non-application of mind, we will have to bear in mind the rule that the Court while exercising writ jurisdiction will not reverse a finding of the inquiry authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the Court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings."
(Emphasis supplied)
Therefore, I find no scope of interfering with the impugned order of punishment in this case.
Since I have observed hereinabove that there was no procedural impropriety in the disciplinary proceeding under reference the decisions of Shivabasappa Shivappa (supra), Hindusthan Paper Corporation (supra), Committee of Management (supra), Kisan Degree College (supra), B. Vasantha Kumar (supra), B. Vasantha Kumar (supra), Kumaon Mandal Vikas Nigam (supra), have no manner of application in this case. The aforesaid case was decided on the basis of the facts and circumstances involved in those cases. The decisions of Harekrishna Das (supra), Md. Quaramuddin (supra), Jaywant Bhaskar Sawant (supra) and Godfrey Phillips India (supra) have no manner of application in this case in view of the fact and circumstances of the instant case. The charge-sheet was not based on any preliminary enquiry report. It has already been observed hereinabove that the charges leveled against the petitioner were proved in accordance with enquiry proceeding. The decision of B. C. Chaturvedi (supra), Shatrughan Lal (supra), South Bengal State Transport Corporation (supra) have no manner of application in the instant case. In view of the fact that the charge of taking bribe was proved against the petitioner in the disciplinary proceeding under reference.
In view of the above the writ application is dismissed.
There will be, however, no order as to costs.
Urgent xerox 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.