Calcutta High Court
Dr. B. P. Samantaray vs Board Of Trustees on 16 January, 2025
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Present :
The Hon'ble Justice SHAMPA DUTT (PAUL)
WP/17401(W)/2007
WPO/134/2024
DR. B. P. SAMANTARAY
Versus
BOARD OF TRUSTEES, KOLKATA PORT TRUST AND OTHERS
For the Petitioner : Mr. Sanjib Kr. Mukhopadhyay, Adv.
Ms. Aparupa Bhattacharya, Adv.
For the Respondent : Mr. Kallol Basu, Sr. Adv.
Mr. Ashok Kumar Jena, Adv.
Hearing concluded on : 12.12.2024
Judgment on : 16.01.2025
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SHAMPA DUTT (PAUL), J.:-
1. The present writ petition has been preferred praying for quashing of
the entire disciplinary proceedings including the show cause notice
dated 26.07.2007 and not to give further effect to the said notice.
2. By the said notice dated 26.07.2007 the Deputy Chairman and
disciplinary authority on considering the enquiry report submitted
by Sri D. K. Roy, Enquiring Officer did not agree with the findings
of the Enquiring Officer on the second charge. The said
disciplinary authority held as follows:-
“i) The charged Officer was in total charge of
chlorination of drinking water at certain
identified points in the Dock area as well as
KoPT Quarters area.
ii) Such contract for manual chlorination was
made w.e.f. 8.6.02 initially for a period of
one year and subsequently extended for
another year.
iii) The charged Officer raised a proposal
dated 22.3.04 in anticipation that finalization
of fresh tender would require time.
iv) Meanwhile the charged Officer proposed
to extend the existing chlorination contract
with the existing firm on existing terms and
conditions for a period of two months.
v) The charged officer placed repeat order
with the same firm on 13.7.04 for
chlorination in respect of the period 14.7.04
to 31.8.04.
vi) For fresh contract, tenders were invited
on 26.5.04. No tender was received and
the date was extended thrice on 14.7.04,
11.8.04 and 27.8.04 but no result could be
yielded.
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vii) The charged Officer wrote to the existing
contractor on 6.8.04 for extension of the
existing contract for a further period of three
months w.e.f. 1st September, 2004 and this
was refused by the existing contractor.
viii) The charged Officer further wrote a letter
to the existing contractor on 20.8.04 for
extension of contract for a period of atleast
one month w.e.f. 1.9.04 but the contractor
refused to comply with the request.
ix) At this stage, the charged Officer raised a
proposal dated 14.9.04 seeking
administrative approval for fresh press
advertised tender for manual chlorination of
drinking water which has been delayed.
x) In view of the delay in raising
proposal for fresh contract even after
expiry of the existing contract, the
charged Officer cannot disown his
responsibility and he should have been
much more alert and prompt in dealing
with such important, sensitive issue
which relates to drinking water to the
port users and inhabitants of KoPT.
xi) The report submitted by the enquiry
officer did not take into account the
above facts though they were on record
before him. As such the undersigned
proposes to disagree with the findings of
Enquiring Officer on the 2nd Charge.
With the reasons of disagreement as
appearing in the immediately preceding
paragraph, now the undersigned as
Disciplinary Authority forwards a copy of the
said report of the Enquiring Authority to the
said Dr. B. P. Samantaray, Sr. M.O. and
directs him to submit, if he so desires, his
written representation/submission
thereto to the undersigned within 15 days
from the date of receipt of this letter
irrespective of whether the report is
favourable or not to him.;
If no written representation/submission
is received from the said Dr. B. P.
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Samantaray, Sr. M. O. within the aforesaid
time frame, further action on the Enquiry
Report will be taken as per provision of the
Regulation 8A and 9A of the CPT Employees’
(CCA) Regulation 1987 read with Regulation
7 of Calcutta Port Trust Employees; (Pension)
Regulation 1988.
Enclo: As stated.
Dy. Chairman & Disciplinary Authority”
3. It appears that the said disciplinary authority did not agree with
the findings of the enquiry officer and asked the petitioner to show
cause. It appears from the report of the enquiry officer that on
extensive enquiry on examining relevant witnesses and documents
the enquiry officer came to the conclusion that none of the
charge(3) as framed against the petitioner could be established.
4. Written notes filed by the parties have been considered.
5. The petitioner without replying to the show cause challenged the
same in the present writ petition. It appears from the report of the
enquiry officer and the show cause notice that the observations and
the grounds as stated by the disciplinary authority disagreeing with
the findings of the enquiry officer has not been done keeping in
mind the principle of natural justice. The findings are not fair and
have been applied to the petitioner, when it can be clearly seen
from the grounds as stated by the disciplinary authority that the
5petitioner had taken all necessary steps diligently without any
laches on his part.
6. The Enquiry Officer had concluded that there was no sufficient material
to pronounce the charged officer as guilty in respect of all the charges.
7. This was not accepted by the Disciplinary Authority under Section 164 of
the Criminal Procedure Code.
8. The Disciplinary Authority by its decision dated 26.07.2007 thus
disagreed with the well reasoned findings of the enquiry officer finding no
materials/ evidence to pronounce the charged officer ‘guilty’ on the
conclusion as follows:-
“5. CONCLUSION:-
5.1 In view of the aforesaid analysis of available
evidences and findings therefrom, it concluded that,
the Articles of Charges Nos. I, II and III, as framed
against Dr. B.P. Samantaray, as per C.S. Memo. No.
Admn /7806 /CON /CMO /17 dated 01.04.2005,
have not been established.”
9. It appears from the materials on record that certain conducts of a
Disciplinary Authority which prima facie show abuse of power, when the
Disciplinary Authority do not abide by the rules and the principles of
natural justice. Circumstance in the present case, required this Court to
interfere, when it found that the findings are based on absolutely no
evidence and suffer from clear perversity, when total disregard of
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materials on record is found and the final decision of a Disciplinary
Authority is made only on the basis of his wish, position and power.
10. The Supreme Court in the State of Rajasthan and others – vs- Heem
Singh in Civil Appeal No. 3340 of 2020 decided on 29th October, 2020
held:
“33. In exercising judicial review in disciplinary
matters, there are two ends of the spectrum. The
first embodies a rule of restraint. The second
defines when interference is permissible. The
rule of restraint constricts the ambit of judicial
review. This is for a valid reason. The
determination of whether a misconduct has been
committed lies primarily within the domain of the
disciplinary authority. The judge does not
assume the mantle of the disciplinary authority.
Nor does the judge wear the hat of an employer.
Deference to a finding of fact by the disciplinary
authority is a recognition of the idea that it is the
employer who is responsible for the efficient
conduct of their service. Disciplinary enquiries
have to abide by the rules of natural justice.
But they are not governed by strict rules of
evidence which apply to judicial proceedings.
The standard of proof is hence not the strict
standard which governs a criminal trial, of proof
beyond reasonable doubt, but a civil standard
governed by a preponderance of
probabilities. Within the rule of preponderance,
there are varying approaches based on context
and subject. The first end of the spectrum is
founded on deference and autonomy deference
7to the position of the disciplinary authority as a
fact finding authority and autonomy of the
employer in maintaining discipline and efficiency
of the service. At the other end of the
spectrum is the principle that the court has
the jurisdiction to interfere when the
findings in the enquiry are based on no
evidence or when they suffer from
perversity. A failure to consider vital
evidence is an incident of what the law
regards as a perverse determination of fact.
Proportionality is an entrenched feature of our
jurisprudence. Service jurisprudence has
recognized it for long years in allowing for the
authority of the court to interfere when the
finding or the penalty are disproportionate to the
weight of the evidence or misconduct. Judicial
craft lies in maintaining a steady sail between
the banks of these two shores which have been
termed as the two ends of the spectrum. Judges
do not rest with a mere recitation of the hands-
off mantra when they exercise judicial review.
То determine whether the finding in a
disciplinary enquiry is based on some
evidence an initial or threshold level of
scrutiny is undertaken. That is to satisfy
the conscience of the court that there is
some evidence to support the charge of
misconduct and to guard against
perversity. But this does not allow the court to
re-appreciate evidentiary findings in a
disciplinary enquiry or to substitute a view
8which appears to the judge to be more
appropriate. To do so would offend the first
principle which has been outlined above. The
ultimate guide is the exercise of robust common
sense without which the judges’ craft is in vain.”
11. In B. C. Chaturvedi VS Union of India and others [(1995) 6 Supreme
Court Cases 749 in Civil Appeal No. 9830 of 1995], the Supreme
Court held that:
“18. A review of the above legal position would
establish that the disciplinary authority, and on
appeal the appellate authority, being fact-finding
authorities have exclusive power to consider the
evidence with a view to maintain discipline. They
are invested with the discretion to impose
appropriate punishment keeping in view the
magnitude or gravity of the misconduct. The High
Court/Tribunal, while exercising the power of
judicial review, cannot normally substitute its
own conclusion on penalty and impose some
other penalty. If the punishment imposed by the
disciplinary authority or the appellate authority
shocks the conscience of the High
Court/Tribunal, it would appropriately mould the
relief, either directing the disciplinary/appellate
authority to reconsider the penalty imposed, or to
shorten the litigation, it may itself, in exceptional
and rare cases, impose appropriate punishment
with cogent reasons in support thereof.
23. It deserves to be pointed out that the mere
fact that there is no provision parallel to Article
9142 relating to the High Courts, can be no
ground to think that they have not to do complete
justice, and if moulding of relief would do
complete justice between the parties, the same
cannot be ordered. Absence of provision like
Article 142 is not material, according to me. This
may be illustrated by pointing out that despite
there being no provision in the Constitution
parallel to Article 137 conferring power of review
on the High Court, this Court held as early as
1961 in Shivdeo Singh case that the High Courts
too can exercise power of review, which inheres
in every court of plenary jurisdiction. I would say
that power to do complete justice also inheres in
every Court, not to speak of a court of plenary
jurisdiction like a High Court. Of Course, this
power is not as wide as which this Court has
under Article 142. That, however, is a different
matter.
24. What has been stated above may be
buttressed by putting the matter a little
differently. The same is that in a case of a
dismissal, Article 21 gets attracted, and, in view
of the interdependence of fundamental rights,
which concept was first accepted in the case
commonly known as Bank Nationalisation case,
which thinking was extended to cases attracting
Article 21 in Maneka Gandhi vs. Union of India,
the punishment/penalty awarded has to be
reasonable; and if it be unreasonable, Article 14
would be violated. That Article 14 gets attracted
in a case of disproportionate punishment was
10the view of this Court in Bhagat Ram v. State of
H.P. also. Now if Article 14 were to be violated, it
cannot be doubted that a High Court can take
care of the same by substituting, in appropriate
cases, a punishment deemed reasonable by it.”
12. In Civil Appeal No. 5848 of 2021 (Union of India & Ors. vs. Dalbir
Singh) the Supreme Court held (relevant paragraphs are reproduced
herein):-
“25. This Court in Ajit Kumar Nag v. General
Manager (PJ), Indian Oil Corpn. Ltd., Haldia
& Ors., (2005) 7 SCC 764 held that the
degree of proof which is necessary to order
a conviction is different from the degree of
proof necessary to record the commission of
delinquency. In criminal law, burden of
proof is on the prosecution and unless the
prosecution is able to prove the guilt of the
accused “beyond reasonable doubt”, he
cannot be convicted by a court of law. In a
departmental enquiry, on the other hand,
penalty can be imposed on the delinquent
officer on a finding recorded on the basis of
“preponderance of probability”.
It was held as under:-
“11. As far as acquittal of the appellant by a
criminal court is concerned, in our opinion, the
said order does not preclude the Corporation
from taking an action if it is otherwise
permissible. In our judgment, the law is fairly
well settled. Acquittal by a criminal court would
11not debar an employer from exercising power in
accordance with the Rules and Regulations in
force. The two proceedings, criminal and
departmental, are entirely different. They
operate in different fields and have different
objectives. Whereas the object of criminal trial is
to inflict appropriate punishment on the offender,
the purpose of enquiry proceedings is to deal
with the delinquent departmentally and to
impose penalty in accordance with the service
rules. In a criminal trial, incriminating statement
made by the accused in certain circumstances or
before certain officers is totally inadmissible in
evidence. Such strict rules of evidence and
procedure would not apply to departmental
proceedings. The degree of proof which is
necessary to order a conviction is different from
the degree of proof necessary to record the
commission of delinquency. The rule relating to
appreciation of evidence in the two proceedings
is also not similar. In criminal law, burden of
proof is on the prosecution and unless the
prosecution is able to prove the guilt of the
accused “beyond reasonable doubt”, he cannot
be convicted by a court of law. In a departmental
enquiry, on the other hand, penalty can be
imposed on the delinquent officer on a finding
recorded on the basis of “preponderance of
probability”. Acquittal of the appellant by a
Judicial Magistrate, therefore, does not ipso facto
absolve him from the liability under the
disciplinary jurisdiction of the Corporation. We
12are, therefore, unable to uphold the contention of
the appellant that since he was acquitted by a
criminal court, the impugned order dismissing
him from service deserves to be quashed and set
aside.”
(Emphasis Supplied)
26. This Court in Noida Entrepreneurs
Association v. NOIDA & Ors. (2007) 10 SCC
385, held that the criminal prosecution is
launched for an offence for violation of a duty,
the offender owes to the society or for breach of
which law has provided that the offender shall
make satisfaction to the public, whereas, the
departmental inquiry is to maintain discipline in
the service and efficiency of public service. It
was held as under:
“11. A bare perusal of the order which has been
quoted in its totality goes to show that the same
is not based on any rational foundation. The
conceptual difference between a departmental
inquiry and criminal proceedings has not been
kept in view. Even orders passed by the
executive have to be tested on the touchstone of
reasonableness. See Tata Cellular v. Union of
India [(1994) 6 SCC 651] and Teri Oat Estates (P)
Ltd. v. U.T., Chandigarh [(2004) 2 SCC 130]. The
conceptual difference between departmental
proceedings and criminal proceedings have been
highlighted by this Court in several cases.
Reference may be made to Kendriya Vidyalaya
Sangathan v. T. Srinivas [(2004) 7 SCC 442:
2004 SCC (L&S) 1011], Hindustan Petroleum
13Corpn. Ltd. v. Sarvesh Berry [(2005) 10 SCC 471
: 2005 SCC (Cri) 1605] and Uttaranchal RTC v.
Mansaram Nainwal [[2006) 6 SCC 366 : 2006
SCC (L&S) 1341].
“8. … The purpose of departmental inquiry and
of prosecution are two different and distinct
aspects. The criminal prosecution is launched for
an offense for violation of a duty, the offender
owes to the society or for breach of which law
has provided that the offender shall make
satisfaction to the public. So crime is an act of
commission in violation of law or of omission of
public duty. The departmental inquiry is to
maintain discipline in the service and efficiency
of public service. It would, therefore, be
expedient that the disciplinary proceedings are
conducted and completed as expeditiously as
possible. It is not, therefore, desirable to lay
down any guidelines as inflexible rules in which
the departmental proceedings may or may not be
against the delinquent officer. Each case requires
to be considered in the backdrop of its own facts
and circumstances. There would be no bar to
proceed simultaneously with departmental
inquiry and trial of a criminal case unless the
charge in the criminal trial is of grave nature
involving complicated questions of fact and law.
Offense generally implies infringement of public
duty, as distinguished from mere private rights
punishable under criminal law. When the trial for
a criminal offense is conducted it should be in
accordance with proof of the offense as per the
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evidence defined under the provisions of the
Indian Evidence Act, 1872 [in short, the Evidence
Act‘]. The converse is the case of departmental
inquiry. The inquiry in a departmental
proceeding relates to conduct or breach of duty of
the delinquent officer to punish him for his
misconduct defined under the relevant statutory
rules or law. That the strict standard of proof or
applicability of the Evidence Act stands excluded
is a settled legal position…. Under these
circumstances, what is required to be seen is
whether the departmental inquiry would
seriously prejudice the delinquent in his defense
at the trial in a criminal case. It is always a
question of fact to be considered in each case
depending on its own facts and circumstances.”
27. This Court in Depot Manager, A.P. State
Road Transport Corporation v. Mohd.
Yousuf Miya & Ors., (1997) 2 SCC 699, held
that in the disciplinary proceedings, the question
is whether the respondent is guilty of such
conduct as would merit his removal from service
or a lesser punishment. It was held as under:
“7. …There is yet another reason. The approach
and the objective in the criminal proceedings and
the disciplinary proceedings is altogether distinct
and different. In the disciplinary proceedings, the
question is whether the respondent is guilty of
such conduct as would merit his removal from
service or a lesser punishment, as the case may
be, whereas in the criminal proceedings the
question is whether the offences registered
15against him under the Prevention of Corruption
Act (and the Penal Code, 1860, if any) are
established and, if established, what sentence
should be imposed upon him. The standard of
proof, the mode of enquiry and the rules
governing the enquiry and trial in both the cases
are entirely distinct and different. Staying of
disciplinary proceedings pending criminal
proceedings, to repeat, should not be a matter of
course but a considered decision. Even if stayed
at one stage, the decision may require
reconsideration if the criminal case gets unduly
delayed.”
(Emphasis Supplied)
28. Mr. Yadav, learned counsel for the writ
petitioner has submitted that during the
pendency of the writ petition before the High
Court, 9 (1997) 2 SCC 699 the appellants were
given opportunity to produce the registers of the
entrustment of S.L.R. to the writ petitioner. But it
was stated that record was not available being
an old record as the incident was of 1993. The
enquiry was initiated in 2013 after the acquittal
of the writ petitioner from the criminal trial.
Therefore, in the absence of the best evidence of
registers, the oral evidence of use of official
weapon stands proven on the basis of oral
testimony of the departmental witnesses. 29.
The burden of proof in the departmental
proceedings is not of beyond reasonable doubt
as is the principle in the criminal trial but
probabilities of the misconduct. The delinquent
16
such as the writ petitioner could examine himself
to rebut the allegations of misconduct including
use of personal weapon. In fact, the reliance of
the writ petitioner is upon a communication
dated 1.5.2014 made to the Commandant
through the inquiry officer. He has stated that he
has not fired on higher officers and that he was
out of camp at the alleged time of incident.
Therefore, a false case has been made against
him. His further stand is that it was a terrorist
attack and terrorists have fired on the Camp.
None of the departmental witnesses have been
even suggested about any terrorist attack or that
the writ petitioner was out of camp. Constable
D.K. Mishra had immobilized the writ petitioner
whereas all other witnesses have seen the writ
petitioner being immobilized and being removed
to quarter guard. PW-5 Brij Kishore Singh
deposed that 3-4 soldiers had taken the Self-
Loading Rifle (S.L.R.) of the writ petitioner in their
possession. Therefore, the allegations in the
charge-sheet dated 25.2.2013 that the writ
petitioner has fired from the official weapon is a
reliable finding returned by the Departmental
Authorities on the basis of evidence placed
before them. It is not a case of no evidence,
which alone would warrant interference by the
High Court in exercise of power of judicial
review. It is not the case of the writ petitioner
that there was any infraction of any rule or
regulations or the violation of the principles of
natural justice. The best available evidence had
17
been produced by the appellants in the course of
enquiry conducted after long lapse of time.”
13. From the said series of events as noted above it is evident that:-
1. The Enquiry report dated 28.11.2006 found that there was no
evidence to establish the guilt or misconduct on the part of the
petitioner.
2. In spite of such findings being on record, the Disciplinary
Authority was of the opinion that calling for tender had been
delayed and:-
“x) In view of the delay in raising proposal for
fresh contract even after expiry of the existing
contract, the charged Officer cannot disown
his responsibility and he should have been
much more alert and prompt in dealing with
such important, sensitive issue which relates
to drinking water to the port users and
inhabitants of KoPT.
xi) The report submitted by the enquiry officer
did not take into account the above facts
though they were on record before him. As
such the undersigned proposes to disagree
with the findings of Enquiring Officer on the
2nd Charge.”
14. There is absolutely no other observation or finding against the petitioner
in the said order of the disciplinary authority.
15. Considering the findings of the disciplinary authority in clause (i) to (ix)
at Para of 2 of this judgment, it appears that the said findings clearly do
not support the conclusion of the disciplinary authority. His own findings
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is contrary to his conclusion, which suffers from bias, prejudice and thus
against the principles of natural justice, there being no proper reasons
nor explanation in respect of the conclusion as to the ‘delay’ or the part
of the petitioner.
16. If such actions are accepted, then no person would be safe from just
the words of another.
17. The said/conduct of the disciplinary authority is clearly an abuse of
power and totally against the principles of natural justice.
18. The total disregard of the report of the Enquiry Officer, in spite of there
being no independent, specific findings of the disciplinary authority
against the petitioner, goes to show that the disciplinary authority was
hell bent on disagreeing with the findings of the Enquiring Officer. And
as such, no reasoning nor the principles of natural justice was followed.
19. The Disciplinary Authority’s findings and the show cause notice is a clear
abuse of power without following any rules or the principles of natural
justice.
20. The findings of Disciplinary Authority is based on ‘no evidence’ and has
been passed without considering the vital evidence on record which is a
clear ‘perverse’ determination of fact. (State of Rajasthan -vs- Heem
Singh (Supra))
21. Considering the said conduct of the disciplinary authority and his
findings which is clearly against the principle of natural justice, the
show cause notice dated 26.07.2007, including the findings of the
disciplinary authority is hereby set aside.
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22. The writ petition is, accordingly, allowed.
23. No order as to costs.
24. All connected applications, if any, stand disposed of.
25. Interim order, if any, stands vacated.
26. Urgent certified website copy of this judgment, if applied for, be supplied
expeditiously after complying with all, necessary legal formalities.
(SHAMPA DUTT (PAUL), J.)