Dibyendu Chakraborty Vs. Union of India and Ors. - (High Court of Calcutta) (01 Dec 2021)

Lack of care and caution on the part of an employer in detecting the fraud could act as acquiescence and as a consequent waiver of irregularity in certain cases

MANU/WB/0843/2021

Service

Present application is directed against a judgment and order passed by the Learned Central Administrative Tribunal, thereby affirming an order issued by the disciplinary authority as affirmed by the appellate authority. The main allegation was that wrong information was supplied before the employer on behalf of the petitioner during his appointment. But, there was a delay of about 11 years in bringing up the issue.

It is alleged that, the Petitioner had obtained the job at the first instance by relying on some fake documents. However, this was not pointed out for a very long time and the Petitioner was allowed to work in the department and get promotions by sitting in appropriate test/s. The authorities did not exercise due care and caution for an inordinately long time. So, the alleged illegality could be detected after nearly 11 years of service of the Petitioner. All this long, the Petitioner worked in the capacity in which he was to serve the employer. The very fact that, the Petitioner was promoted on certain occasions makes it abundantly clear that, he was doing his job quite well.

Although ordinarily an act of fraud would vitiate a process and would date back to the earliest point in time when the engagement in question was initiated, yet a patent lack of care, caution and sincerity on the part of an employer in detecting the same could act as an acquiescence and as a consequent waiver of irregularity in certain cases. In the present case, a hiatus of 11 long years in the employer's urge to exercise reasonable care and caution does vitiate the belated departmental proceeding. The decisions relied upon on the issue of effect of delay, too indicate that an inordinate and unexplained delay may act as a bar to such a belated proceeding.

As regards non supply of copies, the view of the learned Tribunal that, the Petitioner failed to explain why he needed the copies of documents is not quite relevant. All the documents that would be relied upon against the Petitioner have to be supplied to him. Even as far as the other documents available with the employer, it was the Petitioner's right to pray for supply of such documents, which would ensure to his benefit. The failure of the authorities to supply copies of documents as sought by the petitioner strikes the proceeding at its root.

So far as the withdrawal of the first charge sheet and the introduction of second is concerned, the same too could not be casually brushed aside. There is an established procedure by which a charge sheet in a departmental proceeding can be withdrawn and a second one instituted. In the present case, no worthwhile reason was cited for withdrawing the first charge sheet and instituting the second charge sheet. Such cavalier acts seriously prejudicing an employee cannot be sustained in the eye of law. Accordingly, the impugned order passed by the Learned Central Administrative Tribunal is set aside. The writ application is allowed.

Tags : DISMISSAL AFFIRMATION LEGALITY