Shri.Shesh Nath Singh v. The Union Of India And ORS

IN THE HIGH COURT AT CALCUTTA

CONSTITUTION WRIT JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE TAPABRATA CHAKRABORTY AND THE HON'BLE JUSTICE APURBA SINHA RAY WP.CT/44/2024 SHRI SHESH NATH SINGH ... PETITIONER VS.

THE UNION OF INDIA AND OTHERS ... RESPONDENTS For the petitioner : Ms. Anjili Nag, Senior Advocate Mr. Adarsh Ilango For the respondents : Mr. Shatadru Chakraborty, Sr. Adv Mr. Rakesh Kumar Mr. Dibesh Dwivedi Heard on : April 08, 2025 and April 09, 2025 Judgment on : April 11, 2025 TAPABRATA CHAKRABORTY, J.

1. A procrastinated legal battle pertaining to a disciplinary proceeding (hereinafter referred to as DP) initiated under the provisions of the Andaman and Nicobar Police Manual, 1963 (hereinafter referred to as 1963 Manual) culminated in an order of dismissal from service dated 24th June, 2011.

2. Shorn of unnecessary details the facts are that when the petitioner was posted as officiating Station House Officer, Car

Nicobar, he was placed under suspension with effect from 29th February, 2000 in contemplation of a DP. A preliminary enquiry was conducted and a preliminary report was submitted on 8th March, 2000. Subsequent thereto, a charge sheet dated 06th April, 2000 was issued. The Deputy Inspector General of Police (Law and Order), Andaman and Nicobar Islands was appointed as the Inquiry Officer (hereinafter referred to as IO), who submitted a report on 16th August, 2001. Considering the same, the Disciplinary Authority (hereinafter referred to as DA) confirmed the proposal of punishment of dismissal by an order dated 20th December, 2001. The statutory appeal preferred against the same was dismissed on 05th July, 2002. Challenging the same the petitioner preferred an Original Application (hereinafter referred to as OA) being OA No.

37/AN/2003 which was allowed by an order dated 16th September, 2005 setting aside the Inquiry Report (hereinafter referred to as IR), the orders passed by the DA and the Appellate Authority (hereinafter referred to as AA) and the case was remitted to the IA for conducting further inquiry on the charge sheet. Aggrieved by the said order, the respondents herein preferred a writ petition being WPCT No. 196 of 2005 which was dismissed by a Coordinate Bench of this Court by a judgment delivered on 07th March, 2006. Thereafter a fresh inquiry was conducted and an IR was filed on 20th February, 2010. Considering the same, the DA passed an order on 09th June, 2010 dismissing the petitioner from service.

preferred a statutory appeal and the same was allowed by an order dated 04th May, 2011 setting aside the order of the DA and remanding the matter. Subsequent thereto, the DA passed a fresh order on 24th June, 2011. Aggrieved by the said order the petitioner again preferred a statutory appeal but the same was dismissed by an order dated 19th July, 2016. Challenging the said order, the petitioner preferred OA No. 190/2018 which was dismissed by an order dated 9th February, 2024. The said order has been impugned in the present writ petition.

3. Drawing our attention to the order of the AA dated 19th July, 2016, Ms. Anjili Nag, learned senior advocate appearing for the petitioner submits that none of the grounds averred in the said appeal was considered by the AA and the appeal was dismissed by a cryptic order. The AA being the appropriate authority to reassess the evidentiary value did not exercise the jurisdiction vested on him. The petitioner has been deprived of the reasons which may have weighed with the AA to approve the order of dismissal. The manner in which the approval was granted leaves much to be desired. The absence of reasons has rendered the order unstainable. In support of such contention reliance has been placed upon the judgments delivered in the cases of Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank vs. Jagdish Sharan Varshney and others, reported in (2009) 4 SSC 240 and the Kolkata Municipal Corporation and others vs. Dr. Pradip Kumar Ray Chaudhuri and another.

4. According to Ms. Nag, the learned Tribunal failed to consider that the IR formulated on 20th February, 2010 after the direction of the Hon'ble High Court contained in the judgment delivered on 07th March, 2006, had discrepancies as the same did not encapsulate the new findings when fresh evidence was brought on record.

5. She argues that in course of inquiry none appeared to depose on behalf of SOR Traders, HSK Enterprise. One Shri Timothy who allegedly filed a written complaint on 26th February, 2000 also did not appear to depose. Pertaining to the allegation that the petitioner was in a drunken condition, attention has been drawn to the deposition of one Shri Anandan and one Shri Deepankar Baroi wherein both the said witnesses deposed that it didn't appear to them that the petitioner was in a drunken condition. Such apparent discrepancies were not taken into consideration either by the DA or by the AA. The allegations that the petitioner had demanded money also could not be established.

6. She further argues that the DA while passing the order of dismissal erroneously proceeded on the basis that the petitioner had admitted his guilt. However, in course of examination, he stated that 'the entire act done by me during my tenure of posting was done in good faith and the same may amount to procedural lapse'. the contents of the letter dated 30th March, 2010 issued by the petitioner cannot be construed to be an admission of the guilt. In the said letter the petitioner had stated that he was facing the inquiry for last eleven

years and that he was begging and borrowing for the livelihood of his family consisting of wife and two sons. He further stated that his acts were done in good faith and he prayed to the competent authority to take a lenient view.

7. She contends that it is not a charge against the petitioner that he had misappropriated any amount. There is also no allegation of moral turpitude against him and that as such the punishment imposed is thoroughly disproportionate. Such arguments, as advanced, before the learned Tribunal were glossed over and no finding was returned over the same.

8. Mr. Shatadru Chakraborty, learned senior advocate appearing for the respondents vehemently opposes the arguments as advanced by Ms. Nag and drawing our attention to the contents of the order impugned, he submits that there had been a clear admission on the part of the petitioner that he was guilty of the charges and upon such admission, he had prayed for sympathetic consideration. In view thereof, no interference is called for in the present writ petition.

9. According to Mr. Chakraborty, it is not a case that the petitioner had been found guilty on the basis of mere surmises. His guilt stands established through the specific findings arrived at by the IA, the DA and the AA. It is also not a case that the petitioner was not granted adequate opportunities to defend himself. He was furnished all the documents upon which reliance was placed and was also allowed to cross-examine the prosecution witnesses. In the said

conspectus, the argument of violation of natural justice is not sustainable.

10. He categorically denies the contention of Ms. Nag that no one had deposed in course of the final inquiry on behalf of SOR Traders HSK Enterprise. The HSK Enterprise was represented by Shri Sammuel and one Shri Rajeev Biswas. Timothy's complaint was corroborated by Muneer Ahmed, as would be explicit from his crossexamination, annexed at pages 156 to 160 of the paper book.

11. He contends that the entire order passed by the AA needs to be considered together and not in isolation. A particular clause could not have been taken up and highlighted. By the said order, the AA had discussed and affirmed the findings of the DA and that as such he is not required to record elaborate reasons. In support of such contention reliance has been placed upon the judgments delivered in the cases of Boloram Bordoloi vs. Lakhimi Gaolia Bank and others, reported in (2021) 3 SCC 806 and Airports Authority of India vs. Pradip Kumar Banerjee reported in 2025 SCC OnLine SC 232.

12. He argues that the charge against the petitioner was that he went to the residence of one Shri Muneer Ahmed and demanded Rs. 20,000/- as illegal gratification and on refusal to give such illegal gratification he seized bags of supari. In backdrop of such specific charge the contention of the petitioner that no money was recovered from him is irrelevant. It also stands admitted that bags of supari were seized illegally and as such the same were returned

subsequently. In the backdrop of such conduct, question of interference with the order of punishment does not occasion.

13. He further argues that in a proceeding under Article 226 of the Constitution of India, the High Court does not sit as an Appellate Authority. In exercise of the power of judicial review, the Court cannot re-appreciate the evidence and come to any different or independent finding on the evidence already on record. It is also not a case that the authorities have acted mala fide or in an arbitrary or unreasonable manner.

14. He contends that the order of dismissal from service has been passed in appreciation of the fact that the petitioner is a member of a discipline force and that the charges proved cannot be construed to be trivial in nature and that in a discipline force the petitioner was required to maintain an impeccable disposition and respect towards superiors and as such the punishment imposed is appropriate. Question of any relaxation of the order of dismissal also does not occasion inasmuch as it needs to be borne in mind that in a discipline force absolute integrity and honesty is required to be preserved and in the event such discipline is not maintained, the confidence of public would be impaired and that the petitioner, being a member of discipline force, is expected to be extremely cautious in his duties and having committed an offence, he cannot lament and seek sympathy from this Court.

15. We have heard the learned advocates appearing for the parties at length and we have given our anxious consideration to the facts and circumstances of the case.

16. The principal charge against the petitioner is that he had defied the orders of his superior officer. There is no allegation that he had caused any financial loss to the employer by misconduct, fraud, gross negligence or other conduct of like nature. There is nothing on record to show that there was any previous adverse remark against the petitioner. In the backdrop of the charge proved, the impetus towards imposition of the severest punishment of dismissal from service is lacking. In a case of misconduct involving the conduct of delinquent, the extreme penalty of dismissal, without discussing the aggravating and mitigating factors involved, would be grossly disproportionate causing irreparable loss to the petitioner, who has a family consisting of dependents.

17. It is fundamental that in departmental proceedings which is initiated by the issuance of a charge sheet, the ultimate order or the order of punishment has to be in consonance with the charge sheet. In other words, the scope of the entire proceedings is defined by the charge sheet. When a process is triggered off by a charge sheet, the reasonableness of what follows, including the quality of the opportunity afforded to the person proceeded against and the propriety of the ultimate decision, are pegged to and rooted in the charge sheet. The proceedings can, ordinarily, not be expanded

beyond what is conceived of and outlined in the charge sheet, as appears to have been done in the present case.

18. As per the settled position of law, even in a case where the punishment is found to be disproportionate to the misconduct committed, the matter is to be remitted to the DA for imposing appropriate punishment/penalty which as such is the prerogative of the DA. However, today, as the petitioner has retired, it would be iniquitous to direct the petitioner to contest a proceeding from the stage of supply of the IR. In the said conspectus of facts, we are of the opinion that the equities need to be balanced among the parties.

19. Measure, magnitude and degree of misconduct needs to be taken into consideration for weighing the proportion. Regard being had to the facts involved and the nature of post held by the petitioner, we are of the opinion that the doctrine of proportionality is invokable.

20. The DP was initiated against the petitioner in the year 2000. For more than two decades, the petitioner had remained trapped in a purgatorial legal rigmarole, moving back and forth between the High Court, the respondents and the learned Tribunal. The petitioner has been out of employment for more than 24 years, which on its own merit, is a matter of great suffering, agony and ignominy. This is an appropriate case for this Court to put an end to the already protracted legal proceedings.

Taking into consideration the

misconduct alleged, the petitioner should not be deprived of his terminal benefits which is the only source of his livelihood.

21. In view of the discussion made above, we find that the punishment of dismissal imposed on the petitioner was far too harsh in the facts and circumstances of the case and to put a quietus to the matter, it would be appropriate to direct substitution of the punishment of dismissal. Since in a case where the original punishment is set aside, only to be substituted by a new punishment, pursuant to an order of judicial review, then ordinarily such substituted punishment would relate back to the date of original punishment.

22. The order of dismissal dated 24th June, 2011 is, accordingly, set aside and the respondents are directed to impose a punishment of reduction to a lower stage in a time-scale of pay from the date of imposition of the punishment (24th June, 2011) till the date of retirement, without cumulative effect. The respondents shall reinstate the petitioner with continuity in service.

23. In the totality of the facts and circumstances of the case, it would not be proper for us to grant back-wages to the petitioner for the period during which he has not worked. However, to serve the ends of justice we direct that the petitioner be provided notionally the benefit of continuity of service not for the payment of back-wages for the period that he did not serve the organization, but for the purpose

of retirement benefits like employer's contribution towards provident fund, payment of gratuity, pension and leave encashment.

24. The entire exercise of payment of retiral dues, as indicated above, will be carried out by the respondents within a period of two months from the communication of this judgment. The order impugned in the present appeal is, accordingly, set aside and the appeal stands allowed to the extent indicated above.

25. With the above observations and directions, the writ petition is disposed of.

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

27. Urgent Photostat certified copy of this judgment, if applied for, shall be granted to the parties as expeditiously as possible, upon compliance of all formalities.

( Apurba Sinha Ray, J.) ( Tapabrata Chakraborty, J.)