JUDGMENT
Indira Banerjee, J.
1. In this writ application the petitioner has inter alia challenged the disciplinary proceedings initiated against the petitioner pursuant to a chargesheet being Memo. No. 8-368/NIH/Disp/AKD/2003/65 dated 11th April, 2003.
2. The facts giving rise to the writ application are briefly as follows:
Sometime in June, 1991, an advertisement was issued in leading dailies inviting applications for inter alia the post of Associate Professor of Organon of Medicine and Philosophy, Chronic Diseases and Psychology at National Institute of Homoeopathy.
The requisite educational qualifications for the said post of Associate Professor were the same as the requisite educational qualifications for the post of Professor. Incumbents for the said post of Associate Professor were required to have 7 years’ teaching experience out of which at least 4 years of teaching experience had to be as Assistant Professor/Lecturer in the concerned subject, in a recognized homoeopathy college/institution.
The qualifications and experience required for appointment to the post were relaxable at the discretion of the competent authority in case of candidates otherwise well-qualified.
By a letter dated 5th July, 1991, the petitioner applied for the said post giving particulars of his educational qualifications and experience. In the column regarding experience, the petitioner stated that the petitioner had been a Lecturer, Bengal Homoeopathic Medical College and Hospital, Repertory and Practice of Medicine since 26th September, 1984 and had also been Guest Lecturer in National Institute of Homoeopathy, Calcutta in Repertory/Organon of Medicine and Physiology since 25th November, 1991.
The petitioner duly disclosed his educational qualifications and experience. Enclosed with the aforesaid letter dated 5th July, 1991 were all requisite marksheets and certificates.
In response the petitioner received a letter dated 14th November, 1991 requesting the petitioner to submit the enclosed form duly filled in and properly signed so as to reach the office of National Institute of Homoeopathy on or before 30th November, 1991. The petitioner filled in the enclosed form giving particulars of his educational qualifications. The petitioner duly disclosed that the petitioner had completed a one-month Post-Graduate course in Rehabilitation in 1985 and had obtained Master of Science in Physiology from Calcutta University in 1985/1986. In column 7 the petitioner disclosed that the petitioner had been a Lecturer of Bengal Homoeopathic College from 26th September, 1984 till date of application.
The authorities of National Institute of Homoeopathy were thus duly informed of the fact that the petitioner was prosecuting his M.Sc. course from 1984 to 1986. At the same time, the petitioner claimed to have taught at the Bengal Homoeopathic College. The authorities of the National Institute of Homoeopathy could have ascertained how the petitioner prosecuted further studies and taught at the same time.
By a letter dated 25th January, 1997 the petitioner was directed to appear for an interview on 20th February, 1992 along with originals of educational certificates and certificates regarding his experience. After lapse of over two years, the petitioner was by a letter dated 19″‘ March, 1994 offered appointment to the said post of Assistant Professor at the National Institute of Homoeopathy.
The said letter inter alia provided that if any information furnished by the petitioner was found to be false, the petitioner would be liable to removal from service or such other action that the Government might deem proper.
The petitioner accepted the offer of appointment on the terms and conditions stipulated in the said letter. Thereafter, by a letter of appointment dated 14th July, 1994 the petitioner was appointed to the said post. On the same date, that is, 14th July, 1994 the petitioner joined the post. A copy of the joining letter is annexed to the petition.
In the meanwhile on 11th July, 1994 a First Information Eeport was filed against the petitioner alleging that the petitioner had succeeded in obtaining employment in the National Institute of Homoeopathy by producing false and fabricated certificate regarding his experience knowing the same to be false and fabricated. Significantly, even after the said FIR was lodged, letter of appointment was issued to the petitioner and the petitioner was allowed to join.
3. It may, therefore, reasonably be deduced that the authorities of the National Institute of Homoeopathy in the meanwhile ascertained that the certificates were not false or fabricated. Alternatively the authorities relaxed the requisite experience having regard to his overall achievements and entrusted the investigation regarding the certificate produced, to the concerned police authorities.
4. It appears that no investigation on the basis of the First Information Report was carried out for two years. The petitioner was, however, being denied permission to go aboard in connection with a scholarship. In the circumstances, the petitioner initiated a writ application being C.O. No. 12028 (W) of 1996 in this Court.
5. Pursuant to an order in the said writ application, the Central Bureau of Investigation conducted an enquiry and submitted a report to the effect that investigation had revealed that during the period from 26th September, 1984 to 25th September, 1995 the petitioner had been completing one year internship and at the same time teaching at Bengal Homoeopathic Medical College and Hospital, Asansol. Further from 1985 to 1987, while pursuing Master of Science at Agartala and afterwards till 1991, the attendance of the petitioner at the said college was scanty but at the same time it could not be denied that the petitioner had taught at the said college as a Lecturer.
6. The CBI on investigation found that the certificate of teaching experience was not false. The CBI, further opined that there was no evidence in course of investigation on the basis of which chargesheet against the petitioner could be submitted in Court of Law.
7. The CBI however opined that there was enough evidence, documentary and oral to initiate departmental action against the petitioner and referred the matter to the Ministry of Health and Family Welfare. Although the aforesaid report was filed in 1996 no disciplinary proceedings against the petitioner were initiated till April, 2003 when the impugned.
8. As rightly submitted by Mr. Sengupta, the CBI was concerned with investigation of the charges against the petitioner. The CBI had no power, authority or jurisdiction to direct initiation of disciplinary proceedings or even give any advice in that regard.
9. Be that as it may, a chargesheet being Memo. No. 8-368/NIH/DISP/AKD/2003/65 dated 11th April, 2003 was issued to the petitioner. The articles of charges against the petitioner are inter alia as follows:
That Dr. Asok Kumar Das had applied for the post of Associate Professor of Organon of Medicine and Philosophy Chronic Disease & Psychology on 5th July, 1991 as per the advertisement
No. DAVP/91/147 dated 15.06.1991 published in Employment News for 15th – 21st June, 1991 furnishing false and fabricated teaching experience certificate as per the requirement of the advertisement and had submitted 7 years teaching experience certificate as a Lecturer in Bengal Homoeopathy Medical College & Hospital, Asansol whereas he had worked as an Honorary Lecturer and that too not for a full term of 7 years as because he was himself a student of M.Sc. (Life Science) at Agartala from 1985 to 1987 and was also an internee from 26.9.84 to 25.8.85 at Calcutta Homoeopathy Medical College and Hospital for which he had drawn full stipend.
Dr. Asok Kumar Das by his aforesaid act of suppressing the abovementioned facts which if highlighted would have alerted the administrative authorities and thus by this fact had committed gross misconduct and thereby contravened Rule 3(1)(I)(II) & (III) of C.C.S. Conduct Rules, 1964.
10. Appended to the chargesheet was a statement of imputation of misconduct or misbehaviour in support of the charges against the petitioner, which is, extracted hereinbelow for convenience:
That Dr. Asok Kumar Das had applied for the post of Associate Professor of Organon of Medicine and Philosophy Chronic Disease & Psychology on 5th July, 1991 as per the advertisement No. DAVP/91/147 dated 15.06.1991 which was published in Employment News dated 15th – 21st June, 1991 by the National Institute of Homoeopathy, Salt Lake City, Kolkata.
That the said Dr. Asok Kumar Das had furnished false and fabricated teaching experience certificate as per the requirement of the said advertisement.
That the said Dr. Asok Kumar Das had procured the said certificate from Dr. Amitava Biswas the then Principal of Bengal Homoeopathy Medical College and Hospital, Asansol.
That the said certificate states that Dr. Asok Kumar Das was working in the said College of Lecturer in Organon of Medicine and Repertory since 26.9.84. The said certificate was issued on 3.7.91 thus fulfilling the criteria of 7 years teaching experience as a Lecturer.
That the said certificate is false can be proved from the fact that Dr. Asok Kumar Das was undergoing a complete 1 year compulsory internship from 26.9.84 to 25.8.85 at Calcutta Homoeopathic Medical College & Hospital for which he had drawn full stipend and thus this 1 year cannot be taken as his experience.
That Dr. Asok Kumar Das had obtained employment in the capacity of Honorary Lecturer in the said Bengal Homoeopathy Medical College & Hospital, Asansol during the period of internship in gross negligence of the rules laid down by the Central Council of Homoeopathy (Degree Course) B.H.M.S. Regulation, 1983 which states that a candidate after undergoing a 4 1/2 years course should undergo 1 year compulsory internship after which he is awarded a degree certificate by virtue of which he is eligible for teaching practice.
That the said Dr. Asok Kumar Das during the period of 1985 to 1987 had studied in M.Sc. (Life Science) at Agartala without taking permission of the Governing Body of Bengal Homoeopathy Medical College & Hospital, Asansol but had included this period in the teaching experience as Lecturer whereas he was a student himself at that time.
That the teaching experience certificate procured by Dr. Asok Kumar Das certifies that Dr. Asok Kumar Das was a Lecturer in the said Bengal Homoeopathy Medical College & Hospital, Asansol whereas the appointment letter of Dr. Asok Kumar Das issued by the then Principal of the said college shows that Dr. Asok Kumar Das was a Honorary Lecturer.
That he had suppressed the abovementioned facts which if highlighted would have alerted the administrative authorities to the fact that act of 7 years teaching experience that he had claimed, he himself was a student for the period of 2 years at Agartala Life Science University and a year as an internee at Calcutta Homoeopathy Medical College & Hospital.
Thus the said Dr. Asok Kumar Das has failed to maintain absolute integrity, devotion to duty and his act was unbecoming of a public servant and thereby contravened Rule 3(1)(I)(II) & (HI) of C.C.S. (Conduct) Rules, 1964.
11. Immediately on receipt of the impugned chargesheet the petitioner wrote a letter dated 17th April, 2004 complaining of non-supply of documents and also seeking extension of time to file reply to the chargesheet. Further correspondence regarding supply of documents ensued. It is alleged that the documents have not yet been supplied.
12. An affidavit-in-opposition has been affirmed on behalf of the respondent Nos. 1, 2, 3 & 5. The explanation for the delay in initiation of the chargesheet for so many years is the pushing of files from one authority to the other, repeated queries from the Minister-in-Charge suggestions for amendment of the chargesheet, suggestions for amendment of the Bye Laws of National Institute of Homoeopathy and ultimate amendment of the same in January, 2003. It is also apparent from the affidavit-in-opposition that though the chargesheet was put up to the Minister concerned on several occasions, the Minister refused to sign the same for one reason or the other.
13. Mr. Sengupta appearing on behalf of the petitioner attacked the initiation of disciplinary proceedings against the petitioner pursuant to the chargesheet referred to hereinabove. The main contention of the petitioner was that no disciplinary proceedings could have been initiated against the petitioner in the year 2003 in respect of charges, which relate to the year 1991.
14. On merits it was argued that all material facts supporting documents had duly been submitted to the National Institute of Homoeopathy along with the application and subsequently in response to a letter dated 14th November, 1991 of the National Institute of Homoeopathy.
15. The authorities of National Institute of Homoeopathy had ample opportunity to consider the documents and certificates submitted by the petitioner which revealed the fact that the petitioner was an internee from 26th September, 1984 onwards, thereafter the petitioner underwent the Post-Graduate course in Rehabilitation for one month in the year 1985 and thereafter did his Master of Science in Physiology from the Calcutta University, from 1985-1987.
16. The authorities of National Institute of Homoeopathy, therefore, had notice of the fact that the petitioner was prosecuting higher studies during a part of the period when he claimed to be teacher. The authorities accepted the contention of the petitioner of having simultaneously taught at the Bengal Homoeopathy Medical College and Hospital and prosecuted his Master of Science course at Agartala at the same time.
17. Mr. Sengupta next contended that the requisite qualification for the post in question was 7 years’ teaching experience out of which only 4 years experience had to be as Assistant Lecturer of a recognized institution. Even though the petitioner might have been rendering honorary service as teacher between the period from the 1984 to 1987 that could make no difference since the petitioner had admittedly been employed as full time Lecturer of a recognized institution for 4 years. The teaching experience for the remaining period could be as Honorary Lecturer, Guest Lecturer, Part-time Lecturer and the like. In any event the requisite experience was relaxable in appropriate cases.
18. As rightly pointed out by Mr. Sengupta, the petitioner as per his own showing he did not have full 7 years’ experience when he applied for the post. The selecting authorities relaxed the qualifications having regard to his over all achievements. The selecting authorities, therefore, did not consider it necessary to insist on full 7 years teaching experience. The petitioner admittedly had four years’ experience as a full time Lecturer of a recognized institution.
19. It is not in dispute that the petitioner submitted his educational certificates with his application. The originals were also produced. There was no suppression of the fact that the petitioner had been internee from September, 1984 and prosecuted the Post-Graduate course from 1985 to 1987.
20. The authorities of the National Institute of Homoeopathy could have with due diligence ascertained whether the petitioner actually took any classes during the period during which he was an internee or during the period during which he prosecuted the Post-Graduate course, and if so, whether his attendance as a teacher was regular.
21. As rightly argued by Mr. Sengupta anything that could have been detected with due diligence cannot constitute fraud. The petitioner did not suppress the fact of his having been an internee in 1984 or of his having prosecuted the Post-Graduate course from 1985 to 1987. Not highlighting facts, which might go against the petitioner, cannot possibly be construed as suppression, amounting to misconduct. The charge of furnishing a false certificate has on enquiry by the CBI, been found incorrect.
22. The National Institute of Homoeopathy could have ascertained how the petitioner prosecute his studies and taught at Bengal Homoeopathic Medical College at the same time. According to the petitioner, the National Institute of Homoeopathy, in fact, did so and appointed the petitioner taking all factors into account.
23. It is true as argued by Mr. Kapur that this Court in exercise of its power of judicial review should be reluctant to interfere with a chargesheet. Mr. Kapur cited the judgment of the Supreme Court in the case of District Forest Officer v. R. Rajamanickam and Ors. , where the Supreme Court held that in exercise of the power of judicial review it was not open for the Court to go into the correctness of the charges.
24. Mr. Kapur also relied on the decision of the Supreme Court in the case of Union of India v. Ashok Kacker, reported in 1995 Suppl. SC 180. The decision rendered in the facts of the case does not lay down any proposition of law and is hence not a binding precedent on this Court.
25. The charge against the petitioner of submitting false and fabricated teaching certificate, has on enquiry by the CBI been found to be incorrect. The correctness of the charges is not, however, ordinarily be scrutinized by this Court exercising its power of judicial review under Article 226 of the Constitution, as rightly argued by Mr. Kapur. This Court is, therefore, not inclined to go into the merits of the charges against the petitioner.
26. Though this Court in exercise of jurisdiction under Article 226 of the Constitution of India may not adjudicate the correctness of the charges, this Court may examine whether the charges as framed at all constitute misconduct.
27. In the judgment of the Supreme Court in the case of M.S. Mudhol v. S.D. Halegkar and Ors. , on which reliance has been placed by Mr. Sengupta the Supreme Court held that when despite disclosure of qualifications an eligible person is selected and appointed the appointment cannot be disturbed after years. A similar view has been taken by the Rajasthan High Court in the case of Suman Kumari v. State of Rajasthan, reported in 1997 (1) Labour Law Journal 990. In that case the Court held that when appointment had been given after screening certificate, appointment could not later be cancelled on the ground that the appointee had concealed the nature of the certificate.
28. The aforesaid judgments lend support to the contention of Mr. Sengupta that when documents and certificates are disclosed, failure to highlight a point which might go against the petitioner does not warrant removal.
29. However, as rightly submitted by Mr. Sengupta the charges against the petitioner are stale charges since the same pertain to the time when the petitioner applied for the said post of Associate Professor 12 years ago. The First Information Report in this regard was lodged on 11th July, 1994. The CBI filed the report in 1996. Even after the CBI filed its report, no steps were taken to initiate disciplinary proceedings. The charges if any, against the petitioner are to be deemed to have been waived and/or dropped.
30. Mr. Sengupta relied on the judgment of the Supreme Court in the case of State of Madhya Pradesh v. Bani Singh, , where the Supreme Court held that where there was inordinate delay in issuance of chargesheet without satisfactory explanation for the delay, the chargesheet was liable to be quashed.
31. In the case of Samarendra Narayan Ghosh v. State of West Bengal, reported in 1984(1) CLJ 56, cited by Mr. Sengupta, a learned Single Bench of this Court held that admitted unexplained delay constitutes violation of principles of natural justice.
32. In the case of Ranajay Banerjee v. Union of India and Ors. reported in 1998 (2) CHN 332, cited by Mr. Sengupta, His Lordship the Hon’ble Mr. Justice Ajoy Nath Ray held as follows:
In my opinion, the first ground on which the writ should succeed the ground of the intervening inordinate lapse of time. That the writ petitioner had gone through a second marriage ceremony was, or at least should have been, known to the Tea Board right from 1978. Nothing was hidden. Information full and complete was furnished immediately on marriage. The writ petitioner has since got promotion and increment more than one. He was deputed to Australia where he travelled with his wife and that too in the service of the Tea Board. His wife’s expenses were then reimbursed. Every fact was known. Yet the Tea Board kept silent for 14 and then for five years. The explanation of the Tea Board has been that there was a Central Vigilance Commission investigation, and a report of the investigation, and as a result of that report of investigation, the departmental proceeding was started.
The writ petitioner is not to know when the Vigilance Officers will be active or when they will not be. The writ petitioner is not to know when departmental proceedings will be initiated against him or when those will be kept in abeyance. In a situation like this the mandate of Article 14 is quite clear, and it is this, that if all facts are/or should be known to the Tea Board, on the basis of which the departmental proceedings can be initiated according to the Tea Board, or enquiries can be made by the Tea Board, then those enquiries should be made and proceedings initiated within a reasonable time after the information has reached the Tea Board or its responsible officers and employees.
It is open to the Board to choose its own time for initiation of the proceeding. The report of the Central Vigilance Commission, whenever might it come cannot override the mandates of Article 14.
33. Mr. Sengupta has also relied on the judgment of the Supreme Court in the case of State of Punjab v. V.K.
Khanna reported in AIR 2001 SC 343 : 2001 (2) SCC 330, in support of his contention that even a chargesheet can be interfered with by this Court. In the aforesaid case, the Supreme Court held as follows:
While it is true that justifiability of the charges at this stage of initiating a disciplinary proceeding cannot possibly be delved into by any Court pending inquiry but it is equally well-settled that in the event there is an element of malice or mala fide, motive involved in the matter of issue of a chargesheet or the concerned authority is so biased that the inquiry would be a mere farcical show and the conclusions are well known then as in that event Law Courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious, it is the due process of law which should permeate in the society and in the event of there being any affection of such process of law that Law Courts ought to rise up to the occasion and the High Court in the contextual facts has delved into the issue on that score.
34. This Court does not, ordinarily, interfere with the charges, but when the charges are ex facie stale, a chargesheet can certainly be interfered with as held in the cases referred to above. There is no cogent explanation for the delay in issuance of the chargesheet against the petitioner.
35. The writ application is, therefore, allowed. The impugned chargesheet being Memo. No. 8-368/NIH/DISP/AKD/2003/65 dated 11th April, 2003 is set aside and quashed. There will be an order of injunction restraining the respondents from proceedings and/or further proceeding with the disciplinary proceedings initiated against the petitioner on the basis of the said purported chargesheet bearing No. 8-368/NIH/DISP/AKD/2003/65 dated 11th April, 2003.
36. Xerox certified copy of this order be supplied to the learned Advocates subject to the compliance of the requisite formalities.
