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Jayanta Sarkar v/s National Jute Board & Others

Company & Directors' Information:- THE JUTE CORPORATION OF INDIA LIMITED [Active] CIN = U17232WB1971GOI027958

Company & Directors' Information:- S M JUTE PRIVATE LIMITED [Active] CIN = U17232WB2005PTC102039

Company & Directors' Information:- G S JUTE PRIVATE LIMITED [Active] CIN = U17119WB1997PTC082830

Company & Directors' Information:- NATIONAL CO LTD [Strike Off] CIN = U51909WB1917PLC002781

Company & Directors' Information:- J K BOARD PRIVATE LIMITED [Strike Off] CIN = U20101DL1998PTC094877

Company & Directors' Information:- T. SARKAR PVT. LTD. [Active] CIN = U74300WB1990PTC049054

Company & Directors' Information:- C S SARKAR PVT LTD [Strike Off] CIN = U29305WB1976PTC030421

Company & Directors' Information:- P R SARKAR & CO PVT LTD [Strike Off] CIN = U01409WB1947PTC015881

Company & Directors' Information:- NATIONAL CORPORATION PVT LTD [Not available for efiling] CIN = U51909PB1942PTC000480

Company & Directors' Information:- NATIONAL CORPORATION PRIVATE LIMITED [Not available for efiling] CIN = U99999MH1950PLC009913

    WP. No. 14456 (W) of 2017

    Decided On, 13 May 2020

    At, High Court of Judicature at Calcutta


    For the Petitioner: Arijit Chowdhury, Sr. Advocate, Soumya Majumder, Victor Chatterjee, Advocates. For the Respondents: Aniruddha Chatterjee, Rahul Karmakar, Surya Prasad Chattopadhyay, Advocates.

Judgment Text

The petitioner was serving as the Accounts Officer of the National Jute Board (NJB), a statutory authority constituted in terms of the National Jute Board Act, 2008.

A charge sheet was issued to him on 28th April, 2015 and the Authority purported to invoke the provisions of the Central Civil Servants (Classification, Control and Appeal) Rules, 1965 herein after referred to as 'CCS(CCA) Rules 1965' for carriage of the disciplinary proceeding. The petitioner challenged the charge sheet before this court by filing a writ petition being WP 788 of 2015 on the alleged ground that no service rule exists in NJB and the aforesaid Rules cannot be made applicable in his case. The said writ petition was heard and disposed of by an order dated 1st September, 2015 wherein the Court was of the opinion that although CCS(CCA) Rules 1965 may not be strictly applicable, the principles analogous thereto shall be applicable, however, only to such extent as required for the purpose of conducting a free, fair and impartial disciplinary proceeding. The NJB was directed to appoint a fresh enquiry officer to conduct the disciplinary proceeding.

In compliance of the order dated 1st September, 2015 NJB reappointed the inquiry officer, again referring to the CCS (CCA) Rules, 1965. The petitioner once again filed a writ petition being WP 1208 of 2015 which was heard and disposed of by an order dated 6th October, 2015. During the course of hearing, NJB submitted before the court that the letter of reappointment of the inquiry officer was withdrawn. In view of the said submission, the Court disposed of the matter by directing the NJB to conduct the disciplinary proceeding strictly on the basis of the observation made by the Court in its earlier order dated 1st September, 2015 in WP 788 of 2015. NJB was directed to ensure that an impartial inquiry officer be appointed in place and instead of the person whose name appears in the letter dated 14th September, 2015. In compliance of the direction passed by the Court, NJB appointed a fresh inquiry officer being the Deputy Director (M) from the office of the Jute Commissioner to enquire into the charges framed against the petitioner. The petitioner was put under suspension during pendency of the disciplinary proceeding.

The petitioner prayed for appointing a defence assistant to put forth his case. NJB allowed the prayer of the petitioner and permitted him to take the assistance of the defence assistant. The disciplinary proceeding culminated in the order of dismissal of the petitioner from service. The petitioner being aggrieved by the order of dismissal has challenged the same in the instant writ petition.

The primary ground for challenge of the order of dismissal is that the principles of natural justice have not been followed at the time of enquiry. According to the petitioner the charges leveled against him were not proved. The documents sought for by the petitioner were not provided to him in spite of repeated requests. The enquiry was concluded without giving him an opportunity to put forth his defence and the objections made by him at different stages were ignored.

It has been submitted that no opportunity was given to the petitioner to put forth his defence and the material relied upon by the inquiry officer is not to be treated as 'evidence' in the eye of law. It follows that the finding of the inquiry officer was based on no evidence and hence perverse. The petitioner submits that the inquiry officer concluded the enquiry immediately after examination of the employer's witness without giving the petitioner any opportunity to cross-examine them.

The petitioner submits that he was not the only person responsible for recommending release of subsidy. According to him, the officers of Indian Jute Industries' Research Association (IJIRA) were equally responsible for such recommendation.

The petitioner has prayed for setting aside the entire disciplinary proceeding as also the order imposing penalty of dismissal passed against him. The petitioner has also prayed for payment of his arrear salary after adjusting the subsistence allowance paid to him.

The petitioner relies upon the decision delivered by a Constitution Bench of the Hon'ble Supreme Court in the matter of Barium Chemicals Ltd. & Anr. - vs- Company Law Board & Ors. reported in AIR 1967 SC 295 (paragraph 66) on the issue that negligence however great, does not of itself constitute fraud.

Per contra, the learned advocate appearing for NJB denies all the allegations raised by the petitioner. It has been submitted that the petitioner was dismissed from service on the charges of (a) wrongfully releasing the funds in one case and (b) recommending releasing funds in the other. It has been submitted that the enquiry was conducted in a free and fair manner. Even though it was not permissible, but in view to comply with the principles of natural justice the prayer of the petitioner for appointing a defence assistant was allowed. A joint inspection team was constituted and field investigation was done along with the petitioner. The location, the machineries and land of the mill were all confronted to the petitioner and a report was prepared thereafter. The illegal activities of the petitioner stood confirmed at the time of field inspection.

As the petitioner was himself present during the field inspection the principle of conforming the provisions of natural justice has duly been complied with. All the documents sought for by the petitioner were supplied to him. Adequate opportunity was granted to the defence assistant of the petitioner to set up his defence, but the petitioner failed to disprove the allegations leveled against him. The proceeding continued at a steady pace and NJB did not proceed in haste to conclude the same.

The petitioner was provided ample opportunity to cross-examine the management witnesses, which the petitioner availed of. It was only after the cross- examination of the management witnesses was over, that the proceeding was concluded. The departmental appeal preferred by the petitioner against the order of dismissal was duly considered and the same has been dismissed.

The respondents submit that the charges leveled against the petitioner stood established beyond reasonable doubt inasmuch as the field investigation was carried out in his presence. The petitioner failed to explain how his signatures appeared on the old machines, identified by him to be new. He also failed to explain as to how two mills sharing the same plot of land, same set of machines and the same owner would be entitled to two separate disbursal of fund, even though, both the units remained closed for more than ten years. It was on the basis of the report prepared by the petitioner that the recommendation for releasing the subsidy was allowed in favour of one of the mills, and process was on for releasing subsidy in favour of the other.

The respondents contend that the plea of the petitioner for not being solely responsible and trying to shirk the responsibility upon the officers of IJIRA does not recuse him from his liabilities or responsibilities as an officer of NJB. NJB is not the supervising authority and does not have any control over IJIRA, but as the petitioner is within the control of NJB, steps have been taken against him for his involvement in the mischief.

It has been argued that the disciplinary proceeding was conducted strictly in accordance with the principles analogous to CCS (CCA) Rules, 1965. The prayer of the petitioner for setting aside the order of penalty passed in the disciplinary proceeding is liable to be rejected and the writ petition is liable to be dismissed.

The respondents rely upon the judgment delivered by the Hon'ble Supreme Court in the matter of R. S. Saini -vs- State of Punjab & Ors. Reported in (1999) 8 SCC 90 on the issue of limited scope of judicial review by the High Court in disciplinary proceedings.

The respondents also rely upon the decision delivered by the Hon'ble Supreme Court in the matter of State of U.P. & Ors. -vs- Ramesh Chandar Mangalik reported in (2002) 3 SCC 443 on the issue that prejudice has not been caused to the petitioner by non-supply of the documents allegedly claimed by him.

The respondents further rely upon the Constitution Bench decision delivered by the Hon'ble Supreme Court in the matter of State of Mysore & Ors. - vs- Shivabasappa Shivappa Makapur reported in AIR 1963 SC 375 on the issue that the rules of natural justice are matters not of form but of substance. Natural justice will be sufficiently complied with when the statement given by witnesses are read over and marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them.

The respondents pray for dismissal of the writ petition. I have heard the submissions made on behalf of both the parties. The Accounts Officer of NJB plays a very pivotal role in the matter of releasing subsidy in favour of the eligible jute mills. The petitioner serving as the Accounts Officer of NJB had certain duties and responsibilities of the post that he held. He happened to be the dealing officer of the Schemes contemplated to provide subsidy to jute mills for obtaining new machines for sustainable development of the jute industry. The petitioner was the representative of the funding agency and the lead member of the inspection team. It is only upon the report prepared by the petitioner that the funds on account of subsidy are released. Thus, the petitioner's recommendation is a very vital document and he is practically the principal man in field work and authorization in preparing the recommendation report.

It appears from the various documents annexed to the writ petition that a considerable amount of money was released as subsidy in favour of the units which were non-existent and closed down. Self-same set of machineries were shown for releasing subsidy in respect of two entirely separate units headed by a single individual. The machineries were old and non-functional. Based on the recommendation of the petitioner a sum of Rs.57,56,440/- (fifty seven lac fifty six thousand and four hundred forty) only was already released as subsidy and a sum of Rs.93,79,200/- (ninety three lac seventy nine thousand and two hundred) only was on the verge of being released.

Though the petitioner tries to set up a defence that he was not the only person responsible for recommending release of subsidy and there were other officers of IJIRA who were equally responsible, but fact remains that the petitioner cannot absolve himself from his duties. He is responsible and answerable to NJB, being his employer, on any lapse on his part. The petitioner ought not to be concerned about other persons who may have been responsible for recommendation. Being an employee of NJB he is certainly responsible and accountable for all his acts and actions in the course of his official duty. Irrespective of the fact whether other officers were responsible or not, the petitioner cannot shrug off his responsibility while preparation of the recommendation report. The petitioner ought to have been aware that his recommendation was an important factor in arriving at a decision whether or not to release the subsidy in favour of an unit.

The field inspection report conducted jointly by the inquiry officer in the presence of the petitioner clearly mentions that the same set of old, unused machines were shown in respect of two different units, headed by the same person for releasing subsidy. It was the primary duty and responsibility of the petitioner to verify the claim put forth by an unit. The petitioner appears to have failed to perform the duties and have further played an active role in siphoning off funds in the garb of providing subsidy to the units.

The inquiry officer granted the petitioner adequate opportunity to defend his case. The petitioner availed the opportunity of replying to the charges twice, once on 26th May, 2015 (page 86 of the writ petition) and again on 17th November, 2015 (page 126 of the writ petition).

The documents sought for by the petitioner through his defence assistant were duly forwarded to him by forwarding letters dated 29th October, 2015 and 4th November, 2015 (pages 122 and 220 respectively of the writ petition). The defence assistant of the petitioner duly cross-examined the management witnesses and it is only thereafter that the proceeding stood concluded (pages 144A and 182A of the writ petition).

From the documents annexed to the writ petition it does not appear that there has been any procedural lapse on the part of the employer in conducting the disciplinary proceeding. Principles of natural justice have been duly complied with.

The three-judge Bench of the Hon'ble Supreme Court in the matter of R. S. Saini (supra) clearly held 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. The court held that, "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." In the instant case there are enough evidences against the petitioner.

The Constitution Bench in the matter of S. Shivappa (supra) observed that the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. In the instant case the petitioner was clearly made aware of the charges levelled against him and he was given a fair opportunity to cross-examine the management witnesses, which the petitioner duly availed of.

It is settled law that the scope of judicial review under Article 226 of the Constitution of India in matters relating to departmental proceedings initiated by an employer is extremely limited. The court can only interfere in matters where there has been infraction in the principles of natural justice and where there has been a procedural error in the conduct of the disciplinary proceedings. If there is 'some evidence' to come to a finding, as arrived at by the disciplinary authority, the court ought not to interfere with the same.

It is also a settled proposition of law that the court does not act as an appellate authority of the order passed by the disciplinary authority and the court does not have the power to re-appreciate the evidence laid before the inquiry officer. The decision making process does not appear to suffer from any illegality or irregularity.

It is the prerogative and the right of the employer to impose appropriate punishment upon the delinquent employee. The quantum of punishment ought not to be interfered with unless the same appears to be wholly disproportionate and/or shocks the conscience of the court.

In the instant case, there are overwhelming evidences against the petitioner to arrive at the finding of his involvement in the matter recommending release of subsidy in favour of the beneficiaries. The petitioner, though given several opportunities, failed to disprove the allegations leveled against him. The penalty imposed upon the petitioner does not appear to be disproportionate.

The act of the petitioner being a senior level off

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icer, cannot under any stretch of imagination pass off as negligence as in Barium Chemicals (supra) and he should be made accountable and responsible for his active participation in the recommendation of subsidy in favour of non-functional units. The petitioner renewed his prayer on repeated occasions for supply of documents, even though the same was supplied to him. The petitioner was provided all the relevant documents relating to the charges leveled against him. He has failed to apprise the court as to how the documents, which were allegedly not supplied to him, were relevant for the purpose of disproving the allegations made against him. It seems that the petitioner intentionally renewed his prayer for supply of documents with the sole view to drag the disciplinary proceeding. The period for conducting the disciplinary proceeding ought not to be stretched to such an extent so as to render the entire process a farce. Attempt should always be made to conclude the disciplinary proceedings within a reasonable time frame, otherwise delinquent employees will always look for opportunities to stretch the period of the proceeding for other material gains. The disciplinary authority followed the prevalent norms and practice for conducting and concluding the disciplinary proceedings. The same ought not be faulted. In view of the discussions made hereinabove, no relief can be granted to the petitioner in the instant case. The writ petition fails and is hereby dismissed. W.P No. 14456 (W) of 2017 is dismissed. No costs. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties or their advocates on record expeditiously on compliance of usual legal formalities.