Bhajan Ch. Debnath Vs. State of Tripura and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/895476
SubjectService
CourtGuwahati High Court
Decided OnMar-13-2001
Case NumberWrit Petition No. 90 of 1993
JudgeRanjan Gogoi, J.
ActsConstitution of India - Article 226;; Central Civil Services (Classification, Control and Appeal) Rules, 1965 - Rule 14
AppellantBhajan Ch. Debnath
RespondentState of Tripura and anr.
Appellant AdvocateMr. A.K. Bhowmik, ;Mr. S. Ghosh, ;Mr. S.R. Dey and ;Ms. S. Roy, Advs.
Respondent AdvocateMr. U.B. Saha and ;Mr. S. Chakraborty, Advs.
DispositionW.P. dismissed
Excerpt:
- 1. this writ petition has been filed by one shri bhajan chandra debnath challenging the legality and validity of the disciplinary proceeding initiated against the petitioner under rule 14 of the central civil services (classification, control and appeal) rules, 1965. 2. the proceeding was initated against the writ petitioner by a memo of charges dated 26.10.1992 and along with the said memo the statement of article of charges: statement of imputation of misconduct or misbehaviour: list of documents by which article of charges were proposed to be proved and a list of witnesses were furnished to the writ petitioner. the said documents are enclosed to the writ petition as annexure-6. 3. a perusal of the said documents will go to show that the only charge against the writ petitioner is that while functioning as u.d. clerk in the office of the divisional forest officer, working plan division no.ii, the petitioner has resorted to falsehood by submitting a petition to cancel the appointment of one shri narayan chbudhury, a senior forest ranger as presenting officer in 'another disciplinary proceeding initiated against the petitioner. on the basis of the said charge it has been alleged that the writ petitioner had failed to maintain absolute integrity in service and had behaved in a manner unbecoming of a government servant. 4. three contentions have been advanced by mr. a.k. bhowmik, the learned senior counsel appearing on behalf of the writ petitioner. mr. bohwmik contends that a perusal of the article of charges and documents annexed thereto would go to show that the authority initiated the proceeding against the writ petitioner merely on the basis of the statement of shri choudhury, senior forest ranger to the effect that he had not offered any assistance to the writ petitioner in connection with the departmental proceedings as claimed by the petitioner. mr. bhowmik also contends that this information was conveyed to the authority by shri choudhury as far back as 1.4.1991, whereas the charge-sheet was brought against the writ petitioner on 26.10.1992. there is an unreasonable and unexplained delay of one year six months in submitting the charge-sheet which is fatal to the disciplinary proceeding. the third contention of mr. bhowmik is that during pendency of the present departmental proceeding, by an order dated 28.5.1993, the petitioner had been promoted to the post of u.d. clerk on regular basis with effect from 6.4.1981. the office order dated 28.5.1993 conferring the said benefit of promotion to the petitioner has been brought on record by mr. bhowmik by means of a supplementary affidavit. on the basis of the said order dated 28.5.1993. mr. bhowmik contends, the state government has condoned the alleged misconduct on the part of the petitioner for which reason the proceeding against the petitioner are liable to be dropped. 5. the state-respondent has appeared through mr. u.b. shah, the learned senior counsel and has filed an affidavit-in-opposition. mr. saha, the learned senior counsel contends that for the purpose of determining as to whether there is a prima facie case for initiating a disciplinary proceeding, the statement of shri choudhury, senior forest ranger is sufficient and the correctness and veracity thereof is to be tested only in the course of the proceeding. mr. saha contends that the delay of one year six months is due to administrative reasons and such delay does not have the affect of causing any fatality in the proceeding. mr. saha contends that the promotion order of the writ petitioner dated 28.5.1993 cannot in law amount to a waiver on the part of the state government to continue the departmental proceeding inasmuch as the said promotion order was made by the authorities pursuant to the judgment and decree dated 28.11.1992 passed by this high court in second appeal nos. 19 and 21 of 1988. mr. saha contends that the hon'ble high court having been directed for the promotion of the writ petitioner with retrospective effect from such date that his juniors were so promoted in the above mentioned second appeals, the state in all fairness though it fit and proper to promote the writ petitioner by order dated 28.5.1993. 6. a departmental proceeding is in the nature of fact finding enquiry and before initiation of any such proceeding the authority concerned is required to satisfy itself only as to the existence of a prima facie case. the power of the court under article 226 to interfere with a departmental proceeding is severely circumscribed by a catena of decision of the apex court. unless the departmental oroceeding has been initiated mala fide and/or for oblique andcollateral purposes and/or when no case whatsoever is made out on the admitted facts of the case, the high court under article 226 of the constitution would normally not be inclined to interfere and quash the proceeding. in all other situations the court would consider it appropriate to leave the eventual conclusion for the authorities to determine. 7. in the instant case, the writ petitioner contends that he had consulted shri choudhury, senior forest ranger with regard to the charges brought against him in an earlier proceeding whereas shri choudhury by a written communication addressed to the conservator of forest denied the said, fact and had categorically asserted that he had not offered any such assistance. in this situation the authority thought it fit and proper to initiate the proceeding against the writ petitioner for making a false statement, the writ court is singularly ill equipped to determine the correctness of the two versions. that is a matter for the authority to decide in the course of the departmental proceeding, on the basis of the materials on record. the first submission of mr, bhowmik, therefore, fails. 8. the next submission of mr. bhowmik is that the unexplained delay of one year six months in initiating the proceeding has the effect of vitiating the entire proceeding. mr. bhowmik contends that the delay is unexplained, and on the ratio of the decision reported in 1979 (3) slr page 130, mr. bhowmik further contends that such delay has amounted to denial of opportunity to the petitioner in the instant case. while the action of the state authority in keeping the matter pending for one and half years before initiating the proceeding is not to be complimented, i find it difficult to accept the argument of mr. bhowmik that such delay must necessarily lead to failure of the disciplinary proceeding. whether such delay has caused failure of justice and denial of reasonable opportunity would depend on the facts and circumstances of the case. considering the totality of the facts and circumstances of the instant case, particularly the nature of allegations made and the charges brought against the writ petitioner, i do not consider the delay in initiation of the proceeding against the writ petitioner to be fatal. the second submission of mr. bhowmik, therefore, also fails. 9. mr. bhowmik has next contended that the promotion order dated 28.5.1993 must be understood to have amounted to condonation of the charges brought against the petitioner by the authorities ofthe state and in support of his submission mr. bhowmik relies on two decisions of the calcutta high court reported in 1978(1) slr 748 and 1976(2) slr 897. mr. bhowmik also relies on another decision reported in 1968(2) slr 88, in support of the aforesaid proposition. 10. i have considered the submissions of mr. bhowmik and mr. saha on this aspect of the matter and i am inclined to hold that the promotion order dated 28.5.1993 does not amount to any condonation on the part of the authorities of the state as regards the alleged misconduct of the writ petitioner. the promotion order dated 28.5.1993 had been made in deference to the judgment and order dated 28.11.1992 passed in s.a. nos. 19 and 21 of 1988 and the said fact having been clearly averred in the affidavit-in-opposition filed by the state authorities it is not possible to attract any principles of waiver or condonation in the instant case. the judgments relied on by mr. bhowmik are on entirely different sets of facts and do not apply to the case in hand. 11. mr. bhowmik has also contended that since the charge brought against the writ petitioner in the instance case is of a trivial nature and almost a decade had elapsed since the initiation of the proceeding the same may not be allowed to continue. while expressing no opinion as to the gravity of the charge brought against the writ petitioner, this court cannot over look the fact that the departmental proceeding against the writ petitioner has been kept in abeyance by the respondents on account of the interim order dated 19.4.1993 passed by this court at the instance of the writ petitioner. the petitioner, therefore, would not be entitled to any benefit on account of the delay that has occurred. 12. in the light of the above and considering the totality of the facts and circumstances of the case the writ petition has no merit and the same is dismissed. however, there would be no order as tocosts. 13. before parting with the record, this court directs the stateauthorities to complete the disciplinary proceeding against the writ petitioner as expeditiously as possible and in any case within a period of four (4) months from the date of receipt of the certified copy of this judgment.
Judgment:

1. This writ petition has been filed by one Shri Bhajan Chandra Debnath challenging the legality and validity of the disciplinary proceeding initiated against the petitioner under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.

2. The proceeding was initated against the writ petitioner by a Memo of charges dated 26.10.1992 and along with the said Memo the statement of article of charges: Statement of imputation of misconduct or misbehaviour: list of documents by which article of charges were proposed to be proved and a list of witnesses were furnished to the writ petitioner. The said documents are enclosed to the writ petition as Annexure-6.

3. A perusal of the said documents will go to show that the only charge against the writ petitioner is that while functioning as U.D. Clerk in the Office of the Divisional Forest Officer, Working Plan Division No.II, the petitioner has resorted to falsehood by submitting a petition to cancel the appointment of one Shri Narayan Chbudhury, a Senior Forest Ranger as Presenting Officer in 'another disciplinary proceeding initiated against the petitioner. On the basis of the said charge it has been alleged that the writ petitioner had failed to maintain absolute integrity in service and had behaved in a manner unbecoming of a Government servant.

4. Three contentions have been advanced by Mr. A.K. Bhowmik, the learned senior counsel appearing on behalf of the writ petitioner. Mr. Bohwmik contends that a perusal of the article of charges and documents annexed thereto would go to show that the authority initiated the proceeding against the writ petitioner merely on the basis of the statement of Shri Choudhury, Senior Forest Ranger to the effect that he had not offered any assistance to the writ petitioner in connection with the departmental proceedings as claimed by the petitioner. Mr. Bhowmik also contends that this information was conveyed to the authority by Shri Choudhury as far back as 1.4.1991, whereas the charge-sheet was brought against the writ petitioner on 26.10.1992. There is an unreasonable and unexplained delay of one year six months in submitting the charge-sheet which is fatal to the disciplinary proceeding. The third contention of Mr. Bhowmik is that during pendency of the present departmental proceeding, by an order dated 28.5.1993, the petitioner had been promoted to the post of U.D. Clerk on regular basis with effect from 6.4.1981. The office order dated 28.5.1993 conferring the said benefit of promotion to the petitioner has been brought on record by Mr. Bhowmik by means of a supplementary affidavit. On the basis of the said order dated 28.5.1993. Mr. Bhowmik contends, the State Government has condoned the alleged misconduct on the part of the petitioner for which reason the proceeding against the petitioner are liable to be dropped.

5. The State-respondent has appeared through Mr. U.B. Shah, the learned senior counsel and has filed an affidavit-in-opposition. Mr. Saha, the learned senior counsel contends that for the purpose of determining as to whether there is a prima facie case for initiating a disciplinary proceeding, the statement of Shri Choudhury, Senior Forest Ranger is sufficient and the correctness and veracity thereof is to be tested only in the course of the proceeding. Mr. Saha contends that the delay of one year six months is due to administrative reasons and such delay does not have the affect of causing any fatality in the proceeding. Mr. Saha contends that the promotion order of the writ petitioner dated 28.5.1993 cannot in law amount to a waiver on the part of the State Government to continue the departmental proceeding inasmuch as the said promotion order was made by the authorities pursuant to the judgment and decree dated 28.11.1992 passed by this High Court in Second Appeal Nos. 19 and 21 of 1988. Mr. Saha contends that the Hon'ble High Court having been directed for the promotion of the writ petitioner with retrospective effect from such date that his juniors were so promoted in the above mentioned Second Appeals, the state in all fairness though it fit and proper to promote the writ petitioner by order dated 28.5.1993.

6. A departmental proceeding is in the nature of fact finding enquiry and before initiation of any such proceeding the authority concerned is required to satisfy itself only as to the existence of a prima facie case. The power of the Court under Article 226 to interfere with a departmental proceeding is severely circumscribed by a catena of decision of the Apex Court. Unless the departmental oroceeding has been initiated mala fide and/or for oblique andcollateral purposes and/or when no case whatsoever is made out on the admitted facts of the case, the High Court under Article 226 of the Constitution would normally not be inclined to interfere and quash the proceeding. In all other situations the court would consider it appropriate to leave the eventual conclusion for the authorities to determine.

7. In the instant case, the writ petitioner contends that he had consulted Shri Choudhury, Senior Forest Ranger with regard to the charges brought against him in an earlier proceeding whereas Shri Choudhury by a written communication addressed to the Conservator of Forest denied the said, fact and had categorically asserted that he had not offered any such assistance. In this situation the authority thought it fit and proper to initiate the proceeding against the writ petitioner for making a false statement, The Writ Court is singularly ill equipped to determine the correctness of the two versions. That is a matter for the authority to decide in the course of the departmental proceeding, on the basis of the materials on record. The first submission of Mr, Bhowmik, therefore, fails.

8. The next submission of Mr. Bhowmik is that the unexplained delay of one year six months in initiating the proceeding has the effect of vitiating the entire proceeding. Mr. Bhowmik contends that the delay is unexplained, and on the ratio of the decision reported in 1979 (3) SLR page 130, Mr. Bhowmik further contends that such delay has amounted to denial of opportunity to the petitioner in the instant case. While the action of the State authority in keeping the matter pending for one and half years before initiating the proceeding is not to be complimented, I find it difficult to accept the argument of Mr. Bhowmik that such delay must necessarily lead to failure of the disciplinary proceeding. Whether such delay has caused failure of justice and denial of reasonable opportunity would depend on the facts and circumstances of the case. Considering the totality of the facts and circumstances of the instant case, particularly the nature of allegations made and the charges brought against the writ petitioner, I do not consider the delay in initiation of the proceeding against the writ petitioner to be fatal. The second submission of Mr. Bhowmik, therefore, also fails.

9. Mr. Bhowmik has next contended that the promotion order dated 28.5.1993 must be understood to have amounted to condonation of the charges brought against the petitioner by the authorities ofthe State and in support of his submission Mr. Bhowmik relies on two decisions of the Calcutta High Court reported in 1978(1) SLR 748 and 1976(2) SLR 897. Mr. Bhowmik also relies on another decision reported in 1968(2) SLR 88, in support of the aforesaid proposition.

10. I have considered the submissions of Mr. Bhowmik and Mr. Saha on this aspect of the matter and I am inclined to hold that the promotion order dated 28.5.1993 does not amount to any condonation on the part of the authorities of the State as regards the alleged misconduct of the writ petitioner. The promotion order dated 28.5.1993 had been made in deference to the judgment and order dated 28.11.1992 passed in S.A. Nos. 19 and 21 of 1988 and the said fact having been clearly averred in the affidavit-in-opposition filed by the State authorities it is not possible to attract any principles of waiver or condonation in the instant case. The judgments relied on by Mr. Bhowmik are on entirely different sets of facts and do not apply to the case in hand.

11. Mr. Bhowmik has also contended that since the charge brought against the writ petitioner in the instance case is of a trivial nature and almost a decade had elapsed since the initiation of the proceeding the same may not be allowed to continue. While expressing no opinion as to the gravity of the charge brought against the writ petitioner, this court cannot over look the fact that the departmental proceeding against the writ petitioner has been kept in abeyance by the respondents on account of the interim order dated 19.4.1993 passed by this court at the instance of the writ petitioner. The petitioner, therefore, would not be entitled to any benefit on account of the delay that has occurred.

12. In the light of the above and considering the totality of the facts and circumstances of the case the writ petition has no merit and the same is dismissed. However, there would be no order as tocosts.

13. Before parting with the record, this court directs the Stateauthorities to complete the disciplinary proceeding against the writ petitioner as expeditiously as possible and in any case within a period of four (4) months from the date of receipt of the certified copy of this judgment.