The Lieutenant Governor And ORS. v. M. Kasim

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE [CIRCUIT BENCH AT PORT BLAIR] *** PRESENT: HON'BLE JUSTICE SUBRATA TALUKDAR AND HON'BLE JUSTICE RABINDRANATH SAMANTA *** WP.CT/12/2022 The Lieutenant Governor and others ... Petitioners Vs.

M. Kasim ... Respondent For the petitioners : Mr. Shatadru Chakraborty Mr. S. Ajith Prasad For the Respondent : Mr. Deep Chaim Kabir Mr. S. Ajith Prasad Heard on : 18th of November, 2022 Judgment on : 25th of November, 2022 SUBRATA TALUKDAR, J.

1.

This writ petition, being WPCT/12/2022, has been filed by the Lieutenant Governor, being the Administrator of the Andaman and Nicobar Administration (for short referred to as the Administration only) and others challenging the action of

the Learned Central Administrative Tribunal, Calcutta Bench to grant an ad interim Order in favour of the sole respondent, who was the applicant in OA/69/2022 before the learned Tribunal.

2.

The challenge brought by the respondent before the learned Tribunal in the OA was to the Disciplinary Proceedings (DP) that had proceeded upto the stage of the Appellate Authority (AA). It would be relevant at this point of discussion to state the reliefs sought for by the sole respondent in the OA and the reliefs, both final and interim, read as follows:

"8. RELIEF SOUGHT FOR:

In view of the facts mentioned in Para-4 above, the applicant prays for the following reliefs:

a) To quash and/or set aside the impugned Memorandum of Charge-sheet dated 20th April, 2020 issued by the Lieutenant Governor, Andaman & Nicobar Islands, Port Blair acting as Disciplinary Authority against the applicant along with Article of Charges being Annexure A-3 of this original application.

b) To quash and/or set aside the impugned Enquiry Report dated 22.11.2021 submitted by the Enquiry Officer before the Disciplinary Authority which was communicated to the present applicant by way of an office memo dated 15th December, 2021 being Annexure A-13 of this original application.

c) To declare that charge-sheet against the applicant along with the Enquiry Report is totally baseless as because the most vital witness who was the main culprit and who had committed fraud by duping the signature of the present applicant and deposited the cheques before the bank for his personal gain namely M.P Thiru Kumar, the ex-Senior Accounts Officer-cum-Cashier has committed suicide on 09.01.2017. In absence of said M.P. Thiru Kumar the framing of charges against the applicant along with enquiry proceedings is wholly bad in law and illegal in view of the decisions referred above by the Hon'ble Supreme Court in the case of Roop Singh Negi and Prakash Kumar Tandon.

9.

INTERIM ORDER, IF ANY, PRAYED FOR The applicants seek the following reliefs:

a) To say of operation of the impugned Enquiry Report dated 22.11.2021 submitted by the Enquiry Officer before the Disciplinary Authority which was communicated to the present applicant by way of an office memo dated 15th December, 2021 being Annexure A-13 of this original application till the disposal of this original application;

b) To say of operation of the impugned Memorandum of Charge-Sheet dated 20th April, 2020 issued by the Lieutenant Governor, Andaman & Nicobar Islands, Port Blair acting as Disciplinary Authority against the applicant along with Article of Charges being Annexure A-3 of this original application till the disposal of this original application.

c) The representation be directed not to pass any final order on the basis of the impugned Enquiry Report submitted by the Enquiry Officer before the disciplinary authority till the disposal of this original application;

d) Since from the date of issuance of the suspension order i.e. with effect from 10th October, 2019 till today more than two years your applicant is under

suspension in view of the decision of the Hon'ble Supreme Court in the case of Ajay Kumar Choudhury -vs- Union of India & Ord., and the said suspension order be revoked and the applicant may be allowed to perform his duty forthwith;"

3.

By the first Order dated 11th of January, 2022, the learned Tribunal was pleased to, inter alia, record as follows: "Learned Counsel for both the sides are present and are satisfied with the quality of audio/video during hearing. Learned Counsel for the respondent wants to take instructions and submit the details of the additional documents that were supplied to the applicant, the defence witnesses that were allowed to be examined and cross-examined in course of the enquiry and the nature of the duties and responsibilities that DDO in the Department has.

Learned Counsel for the respondents shall also take instructions whether any criminal case or a FIR was lodged against the applicant.

Let no final order be passed in the meantime. The matter would be considered on the grant of interim relief on the next date.

Let the matter be listed on 17.01.2022.

A plain copy of this order be handed over to Learned Counsel for both sides.

4.

Learned Counsel for the present petitioners submits that the first Order of the learned Tribunal dated 11th January, 2022 is de void of any materials. It is the further grievance of the petitioners that the learned Tribunal kept on extending the ad interim Order on subsequent dates, i.e. 17th

of January, 2022, 31st of January, 2022, 10th of February, 2022, 11th of February, 2022, 7th of March, 2022, 31st of March, 2022 and finally on 28th of April, 2022. It is therefore submitted that without any cogent reasons reflected in the first ad interim Order dated 11th of January, 2022, the DP has been stayed by the learned Tribunal and such subsisting stay is prejudicial to the interests of the Administration. 5.

The attention of this Court is drawn to the representation filed by the sole respondent before the Appellate Authority which is at page 408 of the Paper Book. From the written representation which runs into around 55 pages, the petitioners point out that not only did the sole respondent participate in the Enquiry Proceedings but also filed a detailed representation responding to the Report of the Inquiring Authority before the Disciplinary Authority(DA). 6.

It is submitted that the prayer in the detailed representation is for consideration of all evidence presented in the Inquiry Report and rebutted in the representation before the DA. It is the stand of the petitioners that the interdiction of the DP at the interlocutory stage by a cryptic Order dated 11th of January, 2022, which has been further continued

without giving additional reasons, is in erroneous exercise of jurisdiction by the learned Tribunal. It is submitted that the charges against the sole respondent are serious relating to fraud committed in respect of several crores of rupees in the Directorate of Health Services, Andaman and Nicobar Administration.

7.

It is submitted that a Judicial Review of the DP ought not be carried out in the manner as carried out by the learned Tribunal vide its Order dated 11th of January, 2022. The grant of the ad interim Order and its extension on several dates has stalled the DP which is against the concept of balance of convenience of the petitioners/the Administration. It is submitted that the sole respondent is not remediless since the Order of the DA is justiciable by filing an appeal before the Appellate Authority and the sole respondent shall then be entitled to take all points before such Authority. 8.

In support of his stand, Learned Counsel for the petitioners relied upon the authorities of (1992) 3 SCC 124 (at paragraph 6) in Re: Union of India and others vs. A. N. Saxena; (1994) 3 SCC 357 ( at paragraphs. 3,4 and 6) in Re: Union of India and others vs. Upendra Singh and; (1995) 6 SCC 749 (at

paragraph 18) in Re: B.C. Chaturvedi vs. Union of India and others.

9.

It is accordingly prayed that the Order of the Learned Tribunal dated 11th of January, 2022 be set aside and so also the subsequent orders extending such ad interim Order. 10.

Appearing on behalf of the sole respondent/ the applicant in the OA, Mr. Deep Chaim Kabir, Learned Counsel, submits that the primary accused, the Cashier, in the alleged financial irregularities committed suicide. The respondent was the Drawing and Disbursing Officer holding a Superior Post.

11.

Mr. Kabir submits that at the heart of the challenge in the OA before the Learned Tribunal is the denial of Natural Justice to the respondent. It is pointed out that although the respondent has participated in the Inquiry Proceedings, several documents were called for by the respondent and the respondent also was desirous of cross-examining important witnesses. It is the stand of the respondent that neither such documents nor the opportunity to cross-examine was afforded to the respondent.

12.

It is further argued that although the prayer in the Original Application (OA) before the Learned Tribunal is for quashing of the Inquiry Report, the primary stand taken by the respondent in this WPCT is of denial of Natural Justice. 13.

Reliance is placed in this regard to the provisions of Article 311 (2) of the Constitution of India and CCS(CCA) Rules, 1965.

14.

Reliance is also placed on the authority of the decisions reported in (2017) 2 SCC 308 in Re: Allahabad Bank and others vs. Krishna Narayan Tiwari; (1999) 2 SCC 10 in Re: Kuldeep Singh vs. The Commissioner of Police and others; Civil Appeal No. 2049-2050 of 2022 in Re: The State of Uttar Pradesh and others vs. Rajit Singh; (2011) 14 SCC 770 in Re: State of Punjab vs. Davinder Pal Singh Bhullar and others and; (2011) 4 SCC 589 in Re: Union of India and others vs. S.K. Kapoor.

15.

Relying on the above judicial authorities, it is the stand of the Learned Counsel for the respondent that the powers of Judicial Review of a DP in exercise of writ jurisdiction are large and the Writ Court will be competent to examine whether the delinquent official was granted adequate

opportunity of defence in the DP failing which the Writ Court would be entitled to arrive at a conclusion that the DP was held with a biased mind.

16.

It is submitted that although the respondent participated in the DP and filed a representation before the DA, such participation and filing of the representation was without prejudice to the rights and contentions of the respondent that he has suffered violation of Natural Justice in the DP.

17.

Having heard the parties and considering the materials placed, this Court finds that the ad interim Order of the Learned Tribunal dated 11th of January, 2022 is cryptic. It is judicially recognised that such an order without adequate reasons is like a cloudless sky.

18.

This Court must notice that the respondent arrived before the Learned Tribunal with a prayer to set aside the entire DP beginning with the charge-sheet and having proceeded upto the filing of the Inquiry Report. This Court therefore must notice that there were adequate materials before the Learned Tribunal to appreciate as to whether the DP had proceeded in accordance with law.

19.

From the Order dated 11th of January, 2022, this Court notices that the present petitioners were permitted to take the stand as to manner in which the Inquiring Authority had handled the DP.

20.

While granting the Administration the opportunity to take instructions, the Learned Tribunal also observed that the present petitioners/the Administration shall take instructions as to whether a criminal case in the form of a FIR was filed against the present respondent.

21.

To the mind of this Court, the perception of the Learned Tribunal as reflected in the first ad interim Order dated 11th of January, 2022 is misconceived in the light of the fact that no such issue of pendency of the criminal case was raised by the parties before the Learned Tribunal and neither the same has been raised by the parties in this WPCT/12/2022. 22.

The issue in the OA was purely and squarely confined to the manner in which the DP was conducted and feeling aggrieved the present respondent had sought the relief of quashing of all proceedings in the DP beginning with the charge sheet.

23.

Therefore, this Court is unable to subscribe to the formation of mind by the learned Tribunal granting an ad interim Order. In the view of this Court, it would be appropriate for the learned Tribunal to have received further materials as sought for by it vide the Order dated 11th of January, 2022 and then to have proceeded to consider the requirement of an interim Order in the OA.

24.

The extension of the ad interim Order dated 11th of January, on several dates thereafter pending consideration of an interim order is violative of due process. 25.

Second, this Court must notice the prayer made by the respondent in his representation before the DA. The concluding paragraphs are quoted for the benefit of this discussion.

"Before concluding my representation against the report of the Inquiring Authority I would humbly submit that the IA has chosen to reproduce almost all the materials, arguments, analysis and findings given by the Presenting Officer in his written brief. This is absolute lack of connectivity/co-relation between the evidence produced/proved and the findings reached in respect of any of the 3 (three) Articles of charge. The IA also entered into the gamut of a prosecutor by expecting and demanding the charged officer to prove his innocence on the face of the total absence of any proved facts to conclude the case on the basis of "Preponderance of Probability.

I, therefore, request that the facts, materials and evidence adduced in response to the assessment made by the IA may kindly be examined to reach to a justiciable conclusion and findings before taking further course of action in this case." 26.

It is reflected from the above statements that the respondent had participated in the inquiry and then had represented against the Inquiry Report in detail dealing with every evidence discussed in the Inquiry Report running into 55 pages, as placed before the DA.

27.

Therefore, to now argue that the respondent suffered from breach of principles of Natural Justice is an argument which is not palpable from the records of the DP. The interdiction of the DP by the learned Tribunal at the first instance without looking into the materials presented before it, is an exercise which falls short of application of mind. 28.

The judicial authorities relied upon by the respondent (supra) while underscoring the principles of Judicial Review qua a DP, do not apply to the facts of this case. It is not the case of the respondent that the DP was conducted by the present petitioners with a biased mind.

29.

This Court is of the prima facie view that since the primary accused committed suicide, the present respondent

took a chance in the DP to explain away his conduct and the DP having proceeded qua the charges levelled against him upto the stage of Inquiry Report and pending his representation before the DA, the respondent took an opportunistic attempt before the learned Tribunal to stay the DP. To the mind of this Court, the DA cannot be fettered from enquiring into the specific role of the respondent who was the superior officer and the DDO of the primary accused in the huge financial irregularities alleged to have been committed. 30.

In the backdrop of the above discussion, the interim Order dated 11th of January, 2022 and all subsequent Orders passed by the learned Tribunal dated 17th of January, 2022, 31st of January, 2022, 10th of February, 2022, 11th of February, 2022, 7th of March, 2022, 31st of March, 2022 stand set aside.

31.

The matter is remanded back to the Learned Tribunal to proceed on merits.

32.

WPCT/12/2022 stands accordingly allowed.

33.

All parties to act on a server copy of this order downloaded from the website of the Hon'ble High Court.

34.

Urgent Xerox certified copy of this order be supplied to the Learned Counsel appearing for the respective parties upon compliance of usual formalities.

I Agree.

(RABINDRANATH SAMANTA, J.) (SUBRATA TALUKDAR, J.)