Pratap Kr. Ray, J. - (1.) Heard learned Advocates appearing for the parties.
(2.) In the instant case, it is the grievance of the petitioner that the appellate authority under the Calcutta Port Trust Employees (Classification, Control and Appeal) Regulations, 1987 has not considered the proportionality of the punishment as imposed in terms of clause 20(2)(c) of the said Regulations. It has been further asserted that the disciplinary authority's views as expressed while accepting the decision of the inquiring officer by holding : "the attitude displayed by the CSE about his responsibilities as also about his superiors is extremely reprehensible. He has been instrumental in operational difficulties through his defiant attitude," has caused prejudice to the petitioner when the petitioner preferred appeal assailing the decision of the disciplinary authority. It has been argued that though the particular observation of the disciplinary authority was not the subject matter of the charge, but a finding was made and which influenced the appellate authority to confirm the order of punishment.
(3.) This writ application has been opposed by the Calcutta Port Trust authorities. From the records of this case, it appears that this is a second round of writ application filed by the delinquent. Earlier, the order of punishment passed by the disciplinary authority as confirmed by the appellate authority under the said Regulations, was challenged in a writ proceeding and ultimately the matter went before a Division Bench of this Court in F.M.A.T. 431 of 1993, when by the judgment dated 31.1.1993, the Division Bench presided. over by U.C. Banerjee, J. (as His Lordship then was) quashed the decision of the learned Trial Judge passed in the writ proceeding as well as the order of the appellate authority and remanded the matter back to the said authority for decision in accordance with law upon highlighting the point that Rule 20 Sub-rule (2), Sub-clauses (a) and (b) of the said Regulation also to be looked into. The relevant portion of the judgment reads thus : "The matter in its entirety be remitted back to the Appellate Authority for being considered in accordance with law upon affording the writ petitioner/ appellant an opportunity of hearing within a period of four weeks from the date of communication of this order. While considering the matter due regard be had to the provisions of Rule 20 Sub-rule (2) Sub-clauses (a) and (b) of the extant Rules." The impugned decision of the appellate authority dated 19.5.1993 was passed in terms of the order of the Division Bench. However, from the impugned order it appears that the doctrine of proportionality as has been incorporated in the statute by Rule 20 Sub-rule (2) sub-clause (c) by the language "to determine as to whether the penalty imposed was adequate or severe", was not considered by the appellate authority. The said rule reads thus : "20. Consideration of appeal - (1) .................... (2) In the case of an appeal against an order imposing any of the penalties specified in Regulation 7 or enhancing any penalty imposed under the said regulation, the appellate authority shall consider : (a) ............... (b) ............... (c) Whether the penalties imposed is adequate, inadequate or severe, and pass orders- (i) Confirming, enhancing, reducing or setting aside the penalty; or (ii) Remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case:" On a bare reading of the impugned decision of the appellate authority it appears that this point was not considered at all though it appears that in the earlier order of the appellate authority as was quashed by the Division Bench, a finding was reached on such issue by holding that the order of punishment of reducing two stages of increments was not disproportionate to the proved misconduct committed by the delinquent. Since the Division Bench by the order dated 31.3.1993 had set aside the order of the appellate authority, accordingly the earlier findings on Rule 20 Sub-rule' (2) sub-clause (c) has no bearing in the matter at present. The appellate authority was required to decide that question also. Admittedly it appears that the appellate authority has not considered the point de novo though the Division Bench had remitted the matter back for decision by the appellate authority on its entirety. In that view, the impugned decision was vitiated for non-compliance of the said statutory provision by applying the doctrine of proportionality de novo. So far as the other point is concerned as urged that extraneous matters which were not included in the charge sheet was considered by the appellate authority, namely, the observation of the disciplinary authority while accepting the views of the inquiring officer, as already quoted above, it appears that while the disciplinary authority was considering the report of the inquiring officer, observed by making a reasonable observation on the aforesaid finding and said observation is not a different charge, but is a reasoning of the disciplinary authority to accept the views of the inquiring officer with reference to the charges as were framed against the delinquent. In that view, the argument of the learned Advocate fails to that effect. However, having regard to the infringement of the statutory provision of Rule 20 Sub-rule (2) clause (c), this court is of the view that, that point is to be considered de novo and to that limited extent this writ application is allowed. The impugned decision is not set aside and quashed in its entirety but it will be kept in suspended condition for the purpose of consideration of the doctrine of proportionality as has been incorporated in the statute under Rule 20 Sub-rule (2) clause (c). The appellate authority is accordingly directed to decide the said issue .only and thereby to pass a final decision. In the event the appellate authority on applying the said Rule comes to a finding that the punishment as imposed was disproportionate, he will be at liberty to modify the punishment, otherwise the impugned decision will remain valid for all purposes. The appellate authority is directed to dispose of the matter within 3 months from this date. No further hearing is necessary, but a finding is to be reached, and a copy of the same be served upon the petitioner.;