Mere Suspicion Should Not Be Allowed To Take The Place Of Proof Even In Domestic Enquiries: Calcutta High Court

The Calcutta High Court observed that mere suspicion should not be allowed to take the place of proof even in domestic enquiries. 

The Court observed thus in a writ petition challenging an order of the Tribunal passed in the original application filed by a man who was removed from the service by a society.

A Division Bench comprising Justice Tapabrata Chakraborty and Justice Partha Sarathi Chatterjee held, “The prosecution suspected the petitioner’s conduct. But the suspicion cannot, in law, be treated as evidence against the petitioner. Mere suspicion should not be allowed to take the place of proof even in domestic enquiries. It may be that the technical rules which govern criminal trials in Courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules. We have very carefully considered the evidence led but we are unable to hold that on the record, there is any evidence which can sustain the finding that Article III has been proved against the petitioner."

The Bench emphasised that 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.

Advocate Pritam Chowdhury appeared on behalf of the petitioner while Advocate Sudip Krishna Datta appeared on behalf of the respondents.

Facts of the Case -

The petitioner’s case was that he was appointed to the post of labourer in the Indian Red Cross Society (respondent no. 1) in the year 1979 and was granted temporary status in 1980. Based on a complaint lodged in 1994 by the respondent no. 5, a criminal case under Section 409 of the Indian Penal Code (IPC) was registered and in connection with the same, the petitioner was arrested. He was then released on bail and in the midst thereof, the respondent no. 2 placed the petitioner under deemed suspension. Thereafter, a chargesheet was issued to him and the one who lodged police complaint (respondent no. 5) was appointed as the Presenting Officer in the disciplinary proceeding. Upon conducting an inquiry, a report was forwarded to the petitioner to which he duly replied.

About 9 years thereafter, the respondent no. 4 intimated him that the respondent no. 2 has ordered for imposing a punishment of removal from service. After 5 years, the criminal case initiated against him and others was disposed of by a judgment and the petitioner was found not guilty of the charge. As the charges in the departmental proceeding and criminal trial were identical, he upon acquittal, submitted a representation seeking review of removal order but the same was not considered. He through his advocate submitted a further representation but pursuantly, the Deputy Secretary of the Society rejected his claim. Challenging this, he preferred an original application but the Tribunal refused to exercise discretion in his favour and dismissed the same. Resultantly, he was before the High Court.

The High Court in view of the above facts noted, "There can be no precise formula nor any ‘cast iron rule’ for grant of back wages. In the instant case, the criminal complaint was lodged in the year 1994, the disciplinary proceeding was initiated in the year 1995 and the petitioner was removed in the year 2008. He was acquitted in the year 2013, his prayer for review was refused in the year 2016 and the OA was dismissed in the year 2023. The dispute had thus continued since the year 1995 till 2023 for a period of more than 28 years.”

The Court said that the petitioner had worked for about 30 years in the Society and he had no antecedent. It added that 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 and the equities need to be balanced among the parties. … He has been out of employment for more than thirteen years, which on its own merit, is a matter of great suffering, agony and ignominy. This is an appropriate case for this Court to soothe the wounds and agonies by putting an end to the already protracted legal proceedings. No further purpose would be served by applying the penal sword upon a deadwood”, it further remarked.

The Court said that the punishment of removal 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.

“The petitioner at present is aged about 69 years and is having a family and the punishment as imposed is the highest punishment and the same severely affects the livelihood of the respondent and his family. … In the totality of the facts and circumstances of the case, in our opinion, a balance would be maintained and the interest of justice would be subserved through issuance of a direction upon the respondents to disburse 50% of the back wages together with all consequential benefits to the petitioner”, it also observed.

Accordingly, the High Court disposed of the petition and directed the respondents to disburse the back wages and all retiral benefits in favour of the petitioner within 8 weeks.

Cause Title- Subal Makhal v. Indian Red Cross Society & Ors.

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