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Haripada Moitra Vs. President, Calcutta Improvement Tribunal - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 2440 of 1965
Reported inAIR1970Cal154
ActsConstitution of India - Articles 226 and 227; ;Calcutta Improvement Act, 1911 - Section 74
AppellantHaripada Moitra
RespondentPresident, Calcutta Improvement Tribunal
Appellant AdvocateNani Coomar Chakravarti and ;Nepal Chandra Sen, Advs.
Respondent AdvocateG.P. Kar and ;Somen Bose, Advs.
DispositionApplication dismissed
Cases ReferredIndo China Steam Navigation Co. Ltd. v. Jasjit Singh
- das, j.1. this is an application under article 227 of the constitution for setting aside an order dt. march 10, 1965, passed by the opposite party president calcutta improvement tribunal, dismissing the petitioner and imposing a penalty by way of deducting a portion of the contributory provident fund.2. the petitioner haripada moitra joined the improvement trust tribunal as accountant in 1935 and was promoted as chief ministerial officer in 1938, the designation of which part was changed to superintendent of the improvement tribunal.his retirement was due on march 15, 1959 on attainment of the age of 55 but he was granted extension of service for one year at a time for six such terms, the last of which expired on march 15, 1965.3. in 1936, the then president of the tribunal directed the.....

Das, J.

1. This is an application under Article 227 of the Constitution for setting aside an order dt. March 10, 1965, passed by the opposite party President Calcutta Improvement Tribunal, dismissing the petitioner and imposing a penalty by way of deducting a portion of the contributory provident fund.

2. The petitioner Haripada Moitra joined the Improvement Trust Tribunal as accountant in 1935 and was promoted as Chief Ministerial Officer in 1938, the designation of which part was changed to Superintendent of the Improvement Tribunal.

His retirement was due on March 15, 1959 on attainment of the age of 55 but he was granted extension of service for one year at a time for six such terms, the last of which expired on March 15, 1965.

3. In 1936, the then President of the Tribunal directed the petitioner to look after the records of the tribunal in addition and to stay in a portion of the officepremises of the tribunal as a Court keeper, though such stay was not a condition of the employment relating to this additional work.

In 1941, Government sanctioned a special allowance of Rs. 30 for this additional job which however, did not entail any responsibility for furniture of the tribunal, as he was placed merely in overall supervision of the furniture. In August 1, 1964, he relinquished the charge of this additional work, under pressure from the opposite party, president of the tribunal.

4. The opposite party assumed charge as President and started with bias against him, as he pointed out several illegal and irregular acts done by him in connection with appointment and discharge of officer of the tribunal. Trouble then started over the opposite party's demand on petitioner to vacate a portion of accommodation which the petitioner was holding adjacent to the quarter of the court keeper -- which the petitioner refused.

5. Petitioner went on leave in August 1964 and after a short break again went on medical leave due to expire on December 6, 1964.

6. By an order dated December 5, 1964, the Opposite party placed the petitioner under suspension with effect from December 5, 1964 and his application for extension of leave was rejected. On December 28, 1964, the petitioner was served with charge-sheet and two proceedings were started against him.

7. The charges related to furniture, his failure to stay in the quarters during his term as Court Keeper, for which he drew allowance, for not immediately making over possession to the entire premises in his occupation as Court Keeper to his successor and for breach of office discipline and misappropriation of office articles.

8. The petitioner was thereafter directed to show cause why he should not be dismissed from service, make good the property, refund the allowances, and also, why deduction shall not be made from his provident fund under Rules of the tribunal.

9. The petitioner who was ill and on medical leave, denied all the charges and prayed for copies of documents, specified in the list annexed to the letter and for time to submit explanations.

10. The petition was rejected and the petitioner was informed that the copies of the documents could not be furnished 'at that stage'. His subsequent prayer for transferring the proceeding to some other authority, as the opposite party was himself a material witness, was also rejected.

11. Various correspondence thereafter followed but the petitioner's requests were not complied with and the proceedings continued ex parte, and the petitioner was not allowed to be represented by a lawyer.

12. By an order dated February 24, 1965, the opposite party found the charges proved and passed an order directing refund of Rs. 3,500 drawn by petitioner over a period of 10 years for failure to stay in the quarters, for compensation for the loss of furniture, and dismissing him from service.

13. The petitioner was served with a copy of the order and directed to show cause why he should not be dismissed from service.

14. The petitioner submitted a representation showing cause against the proposed penalty and submitting comments on the entire case.

15. The petitioner contends that the action of the opposite party amounts to violation of the principles of natural justice, as he was denied sufficient opportunity to show cause, by supplying the copies of documents, by adjourning the hearing and allowing him to be represented by a lawyer and by the further fact that the opposite party being himself the accuser and a material witness, started with a bias against him.

16. The petitioner contends that the opposite party President has been vested with 'larger, untrammelled and uncontrolled power' and the said powers have not been regulated by any Rules made under Section 74(2) of the Act. The petitioner further contends that the provisions of Section 74 of the Act giving absolute powers to the President in the matter of reduction, suspension and dismissal of officers and servants of the tribunal are discriminatory and ultra vires Article 14 of the Constitution.

17. Petitioner therefore contends that the order of dismissal and deduction from the provident fund is wrongful, mala fide, illegal and should be set aside.

18. The opposite party President of the tribunal filed an affidavit in opposition claiming that this application under Article 227 is not maintainable as the President of the tribunal does not act as Judicial or quasi-judicial Tribunal in the matter of taking disciplinary action against officers appointed by him under the provisions of the Calcutta Improvement Act, 1911. He contends that Article 311 of the Constitution does not apply and no rules have been framed under the provision of this Act for disciplinary action against employees and therefore the ordinary law of master and servant applies. The order passed by the President is an administrative order and assuch, it is not amenable to High Court's jurisdiction under Art 227 of the Constitution.

19. There is a general denial of the allegations on fact made in the petition and a claim that the power of suspending and dismissing officers and servants of the Tribunal vests in the President alone.

20. The petitioner could not be easily contacted at his house though he was instructing his solicitors in several matters relating to the proceeding, repeating prayers for copies of documents and for adjournments and for transfer of proceedings. The depositions of witnesses and exhibits and the copy of list of furniture were sent to petitioner by messenger but he made no submissions and only prayed for adjournment on the ground of illness which was not believed by the opposite party.

21. The opposite party contends that the petitioner's story of illness was false and mala fide and that he was given sufficient opportunity to appear and answer the charges but he did not avail of that and should not therefore now be permitted to raise the plea that the principles of natural justice were not observed in dealing with the charges against the petitioner.

22. Final order in respect of the two proceedings was passed on 10-3-65, Annexure X to the petition. The President thereafter recorded the following order:

'On the findings, therefore,..... asrecorded in order No. 22 of 24-2-64, in proceeding No. 1 of 1964 and order no. 22 of 3-3-1965 in proceeding No. 2 of 1964 and on his being found guilty on the charges therein, he be dismissed from service as superintendent of this office ......... with effect from the afternoon ofthis date.

It was further found that the grounds on which he was dismissed are acts of grave misconduct including act of embezzlement and negligence causing loss to the tribunal and to the Trust. It was therefore ordered that a sum of Rs. 3,500 be deducted from his provident fund under Rule 12 of the Contributory Provident Fund Rules, read with Section 6(b) of the Provident Funds Act.

23. The petitioner has challenged the order passed by the President particularly on the ground of jurisdiction and also on the ground of violation of the principles of natural justice. The President was himself the prosecutor and a witness and had a bias against him, which rendered him unfit to hold the enquiry and to punish him. The charges framed are bad in law and no opportunity was given to petitioner who was ailing, to appear and defend his honour andhonesty. He was not given copies of papers upon which charges were framed even after the President made a tentative decision to dismiss him and this ex parte enquiry and order of dismissal and deduction of Provident Fund Money is violative of the principles of natural justice.

24. Article 227 of the Constitution gives power of Superintendence over Courts and Tribunals to the High Court and the relevant portion of the Article read as follows:--

'Every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction.'

except Military Courts and Tribunals.

This power of Superintendence is in addition to the power conferred upon the High Court to control inferior Courts and Tribunals by means of writs under Article 226 but the power Under Article 227 is not as extensive as that under Article 226 in certain respects and in exercise of the powers under Article 227, the High Court cannot exercise its powers under Article 226. This power again is discretionary and cannot be claimed as of right by any party. The power of general superintendence conferred under Article 227 invokes a duty on the part of the High Court to keep all Courts and Tribunals within its territorial jurisdiction, within bounds of their authority, to see that they do what their duty requires and that they do it in a legal manner. This power, however, cannot be used as an appellate or revisional power and must be exercised most sparingly when interference is called for in cases of grave dereliction of duty or flagrant violation of law.

25. Mr. Chakraborty, learned Advocate for the petitioner has principally rested his argument on what he termed as arbitrary exercise of power as President of the Calcutta Improvement Trust Tribunal in violation of the principles of natural justice and he, therefore, invoked the aid of the Court's jurisdiction under Article 227 for interference,

26. The petitioner was the Chief Ministerial officer in the office of the Improvement Trust Tribunal of which the opposite party was the President. Petitioner was due to retire with effect from March 15, 1959 and he was given several successive extensions -- six terms of one year each. Petitioner went on leave in August, 1964 and after a short break, again went on medical leave due to expire on December 6, 1964. He was, however, placed under suspension with effect from December 5, 1964 and on December 28, 1964, petitioner received 2 charge-sheets against him. Then starteda series of correspondence between petitioner and the President -- Petitioner's claim for certain papers were turned down, petitioner did not attend the enquiry and his request to engage a solicitor to defend him was rejected, though copies of proceedings including evidence recorded and documents were sent to him at his residence. His plea for transfer of the enquiry to a different authority and his plea for long adjournments on medical grounds were also turned down. The President-opposite party made a tentative decision to dismiss him and communicated the decision to him for further explanation. The petitioner again raised similar contentions and did not participate by personal appearance. Long and protracted correspondence, all with the object of delaying consideration of the charges ill-befits petitioner's plea of serious illness, making his participation difficult on grounds of health. Such correspondence with reservation that he was not participating in the ex parte proceeding is likely to raise a suspicion that it is motivated. This is abundantly clear from his letter dated February 18, 1965, Annexure Q(1) where he wrote 'Please note that by this it must not be thought that I am taking part in ex parte proceeding.' Obviously, he was advised against appearing and explaining the charges and he was acting with an eye to future legal remedy. Such conduct goes against his plea that he had no opportunity to defend and that the proceeding was conducted in violation of the principles of natural justice. It is true that at times, the President's order seemed strange and harsh and smacked of arbitrariness: his requests for certain copies were turned down without recording reasons, his petitions for time at all stages were rejected and he was given only a week's time to show cause against dismissal. These are, however, matters within the discretion of the President and in view of the determined refusal of the petitioner to participate in the hearing of the proceedings it is difficult to say that that the principles of natural justice were violated. A departmental proceeding is a two-sided affair -- the officer drawing up the proceeding must be reasonable and helpful in allowing the person who is charge-sheeted to meet the case; equally, the latter must participate, instead of attempting to block the enquiry. Unfortunately neither went by that standard and the occasional lapses by the President is more than compensated by the studied refusal of the petitioner to participate on pleas which do not appear to be substantiated. We are therefore, unable to hold that the principle of natural justice was violated, to the prejudice of the petition.

27. Mr. N. C. Chakravarti, learned Advocate for petitioner has submitted that the President had a bias against the petitioner and combined in himself a prosecutor and judge, in spite of protest and petitioner was condemned unheard, as he had no reasonable opportunity to appear and defend his honour. We have already discussed the circumstances in which the charges against the petitioner were heard ex parte. The petitioner indulged in lengthy and protracted correspondence while pleading inability to attend on grounds of health which makes it abundantly clear he never wanted to participate but merely to delay it, for future favourable circumstances. The learned Advocate strenuously argued the principle of natural justice, forgetting that no natural justice requires that, there shall be a formal cross-examination. A Division Bench of this Court held in the case, reported in : AIR1967Cal80 that formal cross examination is procedural justice, it is governed by the rules of evidence, it is the creation of court, not a part of natural, justice, but of legal and statutory justice. In the instant case, charges were framed, evidence was taken and considered and even copies of evidence and document sent to the petitioner, although he refused to participate. Indeed, he sent lengthy letter, disclosing the nature of his defence, though at the same tune attempting to make it clear that he was not participating in the ex parte enquiry. It is not for this court to lay down what documents should be furnished at what stage or what adjournments should be granted or whether a medical certificate should be believed, but the entire proceeding leaves an impression that the petitioner was determined not to participate in the enquiry by the opposite party. The plea of a bias and prayer for transfer of the proceeding to some other authority is apparently not bona fide but merely out of a motive for delaying the consideration of the charges. No failure of the principles of natural justice is, therefore, involved and the argument is misconceived.

28. This brings us to the question whether this principle can be invoked in an application under Article 227 of the Constitution against decision by the opposite party President of the tribunal. The jurisdiction of the High Court on an application under Article 227 of the Constitution is supervisory over all courts and tribunals when it outstrips the limits of its jurisdiction or acts in excess of authority vested under the law. Tests for exercise of this power under Art 227 have been laid down in the case reported in (1967) 71 CWN 152, B, Haldar v. P. M. Chakraborty and several other decisions and the High Court draws its jurisdiction over Courts and Tribunals and none over administrative decisions or orders. Mr. Chakraborty has drawn our attention to several decisions based on the failure of natural justice but these are decisions under Article 226 of the Constitution where the Court exercised its control over the inferior Courts and Tribunals by means of the write. The power of judicial superintendence conferred by Article 227 is not as extensive as the power conferred by Article 226 and it can be exercised over Courts and Tribunals only in certain circumstances, earlier pointed out and enumerated in the decision reported in (1967) 71 Cal WN 152. Mr. Chakraborty referred to Binapani pel's case, reported in : (1967)IILLJ266SC in support of the argument that even administrative orders which involve evil consequences have to be passed consistently with rules of natural justice, but that was a decision in exercise of the power under Article 226. It was also pointed out in J. P. Matter's case reported in (1967) 71 Cal WN 926, that the doctrine of natural justice is not attracted where the function is purely administrative as distinguished from quasi-judicial. It is true also that the 'area where principles of natural justice have to be followed and judicial approach has to be adopted has become wider and consequently the horizon of writ jurisdiction has been extended in a corresponding measure but then this power can be exercised in exercise of the writ jurisdiction under Article 226 and not in exercise of the power of superintendence under Art 227 of the Constitution.

29. In the case reported in : [1967]1SCR739 Bharat Barrel and Drum Mfg. Co. v. L. K. Bose, it was pointed out by the Supreme Court that while considering the question, the Court should not proceed as if there are only inflexible rules of natural justice of universal application. Court has to consider in each case whether in the light of the facts and circumstances of the case, nature of issues involved, nature of order passed, and interests affected merely, a fair and reasonable opportunity of being heard was furnished to the person affected.

30. As already pointed out the supervisory jurisdiction under Article 227 is over Courts and Tribunals and does not extend to acts in the exercise of administrative jurisdiction where the relationship is that of master and servant The aggrieved party may have other remedy but this Court has no jurisdiction to interfere under Article 227 in exercise of supervisory jurisdiction.

31. The President is the administrative head, empowered to take disciplinaryaction. He framed charges, served copies, took evidence, invited petitioner to participate and cross-examine witness. He considered the evidence and documents and passed certain orders. One aspect of Mr. Chakraborty's argument has been that the President was acting as a tribunal and therefore subject to supervisory jurisdiction of the Court under Article 227. In Maqbul Hossen's case, reported in : 1983ECR1598D(SC) , it was held that the customs officer is not a Court or Tribunal though in adjudicating upon matters under Section 167 of the Act he has to act in a judicial manner.

An identical question was again considered by the Supreme Court in a decision reported in : 1964CriLJ234 , Indo China Steam Navigation Co. Ltd. v. Jasjit Singh, in connection with an application under Article 136 of the Constitution. This Article empowers the Supreme Court to entertain an application on two conditions being satisfied, firstly the order impugned must be an order of judicial or quasi-judicial character and should not be purely an administrative or executive order; secondly, the said order should have been passed either by a Court or a Tribunal in the territory of India. Article 136 of the Constitution relates to orders passed by 'Court' or 'Tribunal'. Court's power of superintendence under Article 227 is also over courts and tribunals and therefore the view expressed by Supreme Court as to what constitutes a Court or tribunal should form the guiding line in deciding the question. The Supreme Court held as follows:

'It is clear that before an appeal can be entertained in this Court under Article 136, two conditions have to be satisfied; the order impugned must be an order of a judicial or quasi judicial character and should not be purely an administrative or executive order; and the said order should have been passed either by a Court or a Tribunal in the territory of India. It is difficult to lay down any definite or precise test for determining the character of a body which is called upon to adjudicate upon matters brought before it. Sometimes in deciding such a question, courts enquire whether the body or authority whose status or character is the subject matter of the enquiry, is clothed with the trappings of a Court. Can it compel witnesses to appear before it and administer oath to them, is it required to follow certain rules of procedure, is it bound to comply with the rules of natural justice, is it expected to deal with the matters before it fairly, justly and on the merits and not be guided by subjective considerations; in other words, is the approach which it is required to adopt judicial or quasi-judicialapproach? If all or some of the important tests in that behalf are satisfied the proceedings can be characterised as judicial proceedings and the test of trappings may be said to be satisfied. But apart from the test of trappings, another test of importance is whether the body or authority had been constituted by the State and the State has conferred on it its inherent judicial power. If it appears that such a body or authority has been constituted by the legislature and on it has been conferred the State's inherent judicial power, that would be a significant, if not a decisive indication that the said body or authority is a Tribunal.'

It was further painted out as follows:--

'All the proceedings under the Act, whether before the Customs Officer or whether in appeal or revision, have to be conducted in accordance with the principles of natural justice and they are in that sense judicial or quasi-judicial proceedings. The fact that the status of the Customs Officer who adjudicates under Section 167 (12A) and Section 183 of the Act is not that of a tribunal, does not make any difference when we reach the stage of appeal or revision. A period of limitation is prescribed for the appeal, a procedure is prescribed by Rule 49 that the appeal or revision must be accompanied by a copy of the decision or order complained against, and the obvious scheme is that both the appellate and the revisional authorities must consider the matter judicially on the evidence and determine it in accordance with law.'

The Custom Officers therefore did not form a court or tribunal, though proceedings had to be conducted in accordance with principles of natural justice and jurisdiction under Article 227 cannot be involved except against the order passed by a court or tribunal.

The result, therefore, is that an officer acting in exercise of its administrative function does not constitute a tribunal or a court so as to invoke the jurisdiction under Article 227 of the Constitution, even if he has to act observing principles of natural justice. It would now be useful to examine the provisions of the Calcutta Improvement Act for examining how far the President of the Tribunal in dealing with the employees was acting as a Court or Tribunal.

Section 70 of the Act provides for Constitution of a Tribunal for the purposes of performing the functions of the Court in reference to acquisition of lands.

Section 71 provides that for the purposes of acquiring land under Land Acquisition Act, the Tribunal shall be deemed a Court (except for certain purposes) and the President of the Tribunal shall be deemed to be a judge.

Section 72 provides that the Tribunal shall consist of a President and two assessors.

Section 74 provides for officers and servants of the Tribunal, and for preparation of a statement by the President showing number and grades of the clerks and other officers and servants and their salaries.

Clause (2) of the section authorises the President to make service rules prescribing age of superannuation and other conditions including leave, allowances etc. and for establishing and maintaining provident or annuity fund.

Sub-clause (4) reads as follows:--

'(4) Subject to any directions contained in any statement prepared under Sub-section (1) and any rules made under Sub-section (2), and for the time being in force, the power of appointing, promoting and granting leave to officers and servants of the Tribunal, and the power of reducing, suspending or dismissing them, shall vest in the President of the Tribunal.'

32. The President of the tribunal, therefore, sits with two assessors and forms the Court and exercises powers under the Land Acquisition Act. The President is also the administrative head and controls the staff and has the power of 'reducing, suspending or dismissing them'. Clause 4 makes it clear that such power vests in the President of the Tribunal and he exercises the powers 'subject to any rules made under Sub-section (2). Admittedly no rules have been made and the President has the power to reduce, suspend or dismiss them. This administrative power is exercised by the President alone and shall not be confused with what is termed a Court within the meaning of Sections 71 and 72 formed by the President and the 2 assessors. The President sitting with assessors forms a Court but President alone exercises administrative functions subject to rules framed but no rules have been framed.

33. Mr. Chakraborty submitted that under the scheme of the Act, President alone performs certain judicial functions as enumerated in Section 77 (6) of the Act. This is in respect of determination of the person to whom compensation is payable and apportionment of compensation, which may be done in the absence of assessors if the President considers this procedure unnecessary.

This, however, is in the nature of a routine matter and in any case, it authorises the President to do it in certain circumstances but in oding so, he does not himself constitute a court or tribunal within the meaning of the Act.

34. The President alone, therefore, controls the staff in its administrative capacity and has the right to reduce, suspend, or dismiss any member of the staff. This power is exercised as an administrative officer and the relationship is that of master and servant and he does not exercise such power as a Court or tribunal. No rules have been framed and no question of violating any such Rule arises. This court has power of superintendence over all courts and Tribunals within the limits of its jurisdiction but it does not extend to administrative orders, by persons or bodies which do not constitute a court or a tribunal.

35. Mr. Chakraborty next argued that rules governing Provident Fund are statutory Rules and in deducting the sum of Rs. 3000, President acted illegally and in violation of the rules. The relevant rule reads as follows:--

'(2) The reasons for which a dismissal from the service may, under Section 6 (b) of the Act, authorize a deduction from the sum standing to the credit of the subscriber in the fund, are -

(i) grave misconduct.

(ii) any act of embezzlement,

(iii) any wilful default or neglect ot duty by such subscriber by reasons of which the President or the Board may at any time have paid, sustained or been put to any loss, damage, costs or expense.'

If therefore the petitioner has been dismissed and his dismissal order is valid, the order of deduction of Provident Fund money is only consequential and not in violation of these rules and it calls for no action from this Court.

36. We, therefore, conclude as follows:

(1) Out of the facts disclosed, it is difficult to say that the petitioner had no opportunity to explain the charges or put his case before the President and the question of violation of the principles of natural justice, therefore, does not arise.

(2) President of the tribunal in exercising disciplinary jurisdiction did not constitute a Court or a tribunal but acted in exercise of his administrative duty and therefore the law of master and servant applied and whatever other remedies the petitioner might have, he cannot invoke the aid of this court's power under Article 227 for redress of his grievances.

(3) Even though not a court or tribunal, the proceeding before the President has to be concluded observing principles of natural justice but in any case the High Court cannot interfere in exercise of its power under Article 227.

37. This application therefore stands dismissed.

38. There will be no order as to costs.

K.K. Mitra, J.

39. I agree.

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