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Sri Asim Kumar Bhattacharyya v/s Kaushik Chatterjee

    C.P.A.N. No. 835 of 2017 in W.P.S.T. No. 223 of 2016

    Decided On, 16 January 2018

    At, High Court of Judicature at Calcutta


    For the Petitioner: D.N. Roy, Sankha Ghosh, Manujendra Narayan Roy, Advocates. For the Respondents: Joytosh Majumder, ld. G.P., Pinaki Dhole, Avishek Prasad, Advocates.

Judgment Text

In re: C.P.A.N. 835 of 2017

1. Heard Mr. Majumder, learned Government Pleader being assisted by Mr. Pinaki Dhole and Mr. Avishek Prasad representing the alleged contemnors and learned counsel Mr. D.N. Roy being assisted by Mr. Sankha Ghosh and Mr. Manujendra Narayan Roy representing the applicant in the contempt application where the only lis is as to whether there has been a violation of this Court's order directing the respondents to conclude the disciplinary proceeding on or before 9th June, 2017.

2. Learned counsel for the applicant/writ petitioner relying upon paragraph nos. 14, 15 and 16 in the case of Sethi Auto Service Station & Anr. v. Delhi Development Authority & Ors., reported in (2009) 1 SCC 180 and paragraph nos. 31, 35 and 36 in the case of Yoginath D. Bagde v. State of Maharashtra & Anr., reported in (1999) 7 SCC 739 submits that the final order in the disciplinary proceeding was passed without grant of any opportunity of hearing and as such the same is not sustainable and since communication of the result of the disciplinary proceeding was not complete within the period fixed by the Court, last date of which was 9th June, 2017, there has been a deliberate violation of the Court's order and the proceeding stands lapsed and as such appropriate order should be passed against the contemnors since for violation of the order of this Court, the

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applicant has been the worst sufferer.

3. Mr. Majumder, learned Government Pleader, per contra, inviting our attention to the materials on record submits that there were certain formalities which had to be completed for conclusion of the disciplinary proceeding. After the applicant replied to the show cause notice dated 6th March, 2017 on 20th March, 2017, the Irrigation and Waterways Department (in short, I&W Department) consulted the Public Service Commission (in short, the PSC). The queries of PSC were answered by the I&W Department on 25th May, 2017 but thereafter as no communication was forthcoming from PSC and as the period stipulated for conclusion of the proceeding was fast approaching, the Joint Secretary, I&W Department filed an application for extension of time being C.A.N. 5307 of 2017 on 6th June, 2017. Thereafter on 7th June, 2017 the I&W Department received a memo dated 5th June, 2017 from PSC recommending imposition of penalty. Immediately the file was sent for the assent of the Hon'ble Governor and thereafter the disciplinary authority passed the final order on 9th June, 2017. The said final order was posted from the G.P.O. at 17.59 hours on 9th June, 2017 and simultaneously sent in a sealed cover by a special messenger to the residential address to the applicant but as he was available at his residence, the special messenger pasted the final order outside the main door of the applicant's house.

4. Learned counsel for the applicant, in reply, submits that the applicant was served with copy of the CAN application and that the reply furnished in response to the applicant's application under the Right to Information Act, 2005 would clearly reveal that the final order was only sent by the authorities but actually served upon the applicant on 9th June, 2017 and as communication of the decision was complete the proceeding cannot be construed to have been concluded on 9th June, 2017, the date stipulated in the order of this Court and as such there has been a deliberate violation of the Court's order.

5. The only consideration before us is as to whether there has been any wilful and deliberate violation of the order passed by this Court towards conclusion of the disciplinary proceeding by 9th June, 2017.

6. Perused the cases cited by learned counsel of the applicant. For proper appraisal, let us set out paragraphs 14, 15 and 16 from the case of Sethi Auto (supra) which runs as follows:

"14. It is trite to state that notings in a departmental file do have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department, gets his approval and the final order is communicated to the person concerned.

15. In Bachhittar Singh v. State of Punjab (AIR 1963 SC 395), a Constitution Bench of this Court had the occasion to consider the effect of an order passed by a Minister on a file, which order was communicated to the person concerned. Referring to Article 166(1) of the Constitution, the Court held that order of the Minister could amount to an order by the State Government unless it was expressed in the name of the Rajpramukh, as required by the said article and was then communicated to the party concerned. The Court observed that business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. Before an action is taken by the authority concerned in the name of the Rajpramukh, which formality is a constitutional necessity, nothing done would amount to an order creating rights or casting liabilities to third parties. It is possible, observed the Court, that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion which may be opposed to the earlier opinion. In such cases, which of the two opinions can be regarded as the "order" of the State Government? It was held that opinion becomes a decision of the Government only when it is communicated to the person concerned.

16. To the like effect are the observations of this Court in Laxminarayan R. Bhattad v. State of Maharashtra, ((2003) 5 SCC 413), wherein it was said that a right created under an order of a statutory must be communicated to the person concerned so as to confer an enforceable right."

The paragraphs 31, 35 and 36 of Yoginath (Supra) runs as follows:

"31. In view of the above, a delinquent employee has the right of hearing only during the enquiry proceedings conducted by the enquiry officer into the charges levelled against him but also at the stage at which those findings are considered by the disciplinary authority and the latter, namely, the disciplinary authority forms a tentative opinion that it does agree with the findings recorded by the enquiry officer. If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or service rule including rules made under Article 309 of the Constitution.

35. Since the Disciplinary Committee did give any opportunity of hearing to th appellant before taking a final decision in the matter relating to the findings on the two charges framed against 4 him, the principles of natural justice, as laid down by a three-Judge Bench of this Court in Punjab National Bank v. Kunj Behari Misra (1998) 7 SCC 84) referred to above, were violated.

36. Mr. Harish N. Salve, learned Senior Counsel appearing on behalf of the respondent has contended that the disciplinary proceedings come to an end either when the delinquent is exonerated of the charges or when punishment is inflicted upon him on the charges being proved. Since in the instant case, the Disciplinary Committee had given an opportunity of hearing to the appellant before finally recommending to the State Government to dismiss him from service, the principles of natural justice were fully complied with and that too at a stage earlier than the stage when the curtain was finally brought down on the proceedings. He contended that only the findings recorded by the enquiry officer but the reasons for which the Disciplinary Committee had agreed with those findings, were communicated to the appellant to whom a notice was also issued to show cause why he be dismissed from service. He further contended that the appellant submitted a reply in which he attacked the reasons for which the Disciplinary Committee had decided to disagree with the findings of the enquiry officer and, therefore, in the given circumstances of this case, it cannot be said that there was a failure or denial of opportunity at any stage."

7. In the instant case it appears that the disciplinary proceeding was concluded before 9th June, 2017, which was the last day fixed in the Court's order and apart from posting the final order on the said date from G.P.O., the same was also served and communicated to the applicant upon affixing the final order on the main door of his house.

8. Now taking the lis into consideration, let us give our observations as to whether the disciplinary proceeding was concluded by 9th June, 2017 since it has been urged by learned counsel for the applicant that the final order was communicated to him before the stipulated date. Learned counsel for the applicant has submitted that his client had received one sealed envelope under registered post on 10th June, 2017, as was posted from the G.P.O. on 9th June, 2017 at 17.59 hours and the said envelope has been kept intact and has been opened till date. But curiously enough in the affidavit-in-reply it has been averred in paragraph 5(e) that "the admitted position is this that the petitioner received the final order 10.06.2017 which was opened or read by the petitioner. However, subsequently he came to know through RTI Information that the Final Order was issued and dispatched on 09.06.2017 through Postal Service. Having read the said Final Order, the petitioner found it to be absolutely faulty and the same can be said to be a Final Order at all". The said paragraph has also been affirmed as true to knowledge. From the above quoted text we want to put emphasis upon the words "final order". Such averments give a clear indication that upon receiving the sealed envelope on 10th June, 2017, which contained the final order in the disciplinary proceeding, he had kept the same intact so that he may agitate an issue that the final order was communicated to him and that as such the proceeding has been concluded within the time stipulated by the Court and the proceeding has accordingly lapsed.

9. That apart, in the affidavit-in-opposition, a photograph of a document which was pasted outside the main door of the applicant's house has been annexed. Though the text of such document is so legible, in the affidavit-in-reply the said document has been dealt with by the applicant and there is also no denial of the averment that the said document was pasted outside the main door of his house. From the said sequence it is explicit that the applicant had knowledge that the disciplinary proceeding was concluded on 9th June, 2017.

10. The judgments upon which reliance has been placed are clearly distinguishable on facts and the same do emanate from contempt matters. In the instant case the disciplinary proceeding was concluded within the stipulated date. The final order was posted on 9th June, 2017 itself from the main post office of Kolkata 2017 and simultaneously the same was also sent in a sealed cover by a special messenger to the applicant's residence but he was available and as such the same was pasted outside the main door of the applicant's house on 9th June, 2017 itself. As the envelope was properly stamped, correctly addressed and posted within the given date then it shall be deemed that there was valid communication of the final order of said disciplinary proceeding to the applicant and the same stood concluded on 9th June, 2017.

11. High authorities speak of diffidence and temperance in the invocation of contempt jurisdiction and the sparing use of the punitive measures. The noncompliance of an order has to be wilful and deliberate and not mere accidental or unintentional. The explanation given by the alleged contemnor in the affidavit filed reveals that there was no deliberate and wilful denial to comply with the order of this Court.

Accordingly, the contempt application is dismissed.

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

12. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties upon compliance of all necessary formalities.

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