Paresh Chandra Dutta (Petitioner) v. Collector Of Calcutta And Others (S).

The Judgment of the Court was delivered by

Chandan Kumar Banerjee, J.:— The petitioner was a Lower Division Clerk in Comilla, Tippora Collectorate. After the partition of India the petitioner co-opted for India and was posted in the Land Acquisition Collectorate in Calcutta. Thereafter he was confirmed as an Upper Division Clerk in the Election Department and subsequently he acted as Nazir of the Collectorate. Against the said promotion of the petitioner there was representation by other employees and thereupon the petitioner was demoted to his original post of Lower Division Clerk by the Divisional Commissioner. The petitioner moved this Court under Article 226 of the Constitution of India and obtained a rule and an order of injunction against the said order of demotion of the petitioner in C.R 7447 (w) of 68. On 28th June, 1969 the petitioner was served with a charge sheet. The charges mainly were; (1) the petitioner collected certain amounts from the salaries of the staff on the pay day for depositing in the respective Cumulative Deposit Accounts (Savings Bank and Postal) of each person but the same were not deposited promptly and kept the same with him and when the irregularity was brought to the notice of the authorities the deposits were made by the petitioner long afterwards whereby the said depositors were put to loss on account of interest, (2) the said amounts which were not duly deposited by the petitioner were monies belonging to the Government of India and therefore the petitioner had no right to keep the money in his hand without duly accounting for the same and the amount was unauthorisedly and without the consent and knowledge of the Officer-in-charge of Collectorate was held by the petitioner, (3) the conduct of the petitioner in non-complying with the rules gave rise to the suspicion that the petitioner temporarily defalcated Government money. The petitioner was asked to show cause why he should not be dismissed from his service or otherwise dealt with. In reply to the said show cause notice, the petitioner submitted a written explanation on the 4th July, 1969. The petitioner appeared before the Enquiring Authority and cross-examined the witnesses produced by the said authority. The said authority, however produced and examined another witnesses but the petitioner was neither informed nor had any knowledge of the said witness and had no opportunity to cross-examined him.

2. By an order made by the Collector on the 28th August, 1970 the petitioner was reverted to the post of Lower Division Clerk without giving the petitioner any second notice to show cause against the punishment proposed to be inflicted. Against the said order of reversion the petitioner moved a writ petition in this Court, being C.R 1507 (w) of 1970. Amiya Kumar Mookerji, J. by his judgment and order dated 20th November, 1975 quashed the said order of reversion on the ground that before the order of reversion no second show cause notice was issued to the petitioner. By the said order opportunity was, however, given to the Collector to issue a second show cause notice and to proceed in accordance with law, and all points taken in the said writ petition were left open. On the 12th December, 1975 the Collector of Calcutta gave the impugned second show cause notice to the petitioner. The second show cause notice, however, proceeded on the basis as if the Collector, that is, the disciplinary authority, had made up his mind that the petitioner was guilty of the charges made against him and it was stated therein that the said disciplinary authority in agreement with the enquiring officer was satisfied that the petitioner had been found guilty of all the charges brought against him, even leaving aside the evidence of Assistant Collector (Small Savings) Witness No. 7 whom the petitioner had no opportunity to cross-examine. By the said second show cause notice the said disciplinary authority proposed to impose upon the petitioner the penalty of dismissal from service as specified in Clause (viii) of Rule 8 of the West Bengal Services (Classification, Control and Appeal) Rules, 1971. It was further stated that in exercise of the power conferred by Article 311 of the Constitution of India read with sub-rule (12) of Rule 10 of the West Bengal Services (Classification, Control and Appeal) Rules, 1971, the said disciplinary authority called upon the petitioner to submit within seven days from the date of receipt of the said second show cause notice any representation which the petitioner might wish to make on the penalty proposed to be imposed on him, that is, penalty of dismissal from service. The petitioner was supplied with a copy of the report of the Enquiring Officer. The petitioner made representation against the same and submitted his explanation thereto and also called upon the respondent No. 1 to revoke, cancel or withdraw the said second show cause notice and not give effect to the punishment proposed either by the Enquiring Officer or by the said show cause notice:—

Mr. Kashi Kanta Maitra, learned Advocate for the petitioner contended that the chargesheet was bad inasmuch as the same was not issued by the disciplinary authority. It was issued by the respondent No. 2 who was at the time discharging the functions of the respondent No. 1 as a stop-gap arrangement.

3. In paragraph 5 of the affidavit-in-opposition affirmed by Sri Sankar Mukherji, Collector of Calcutta, the respondent No. 1 affirmed on 28th March, 1978 it is admitted that the respondent No. 2 was acting in the position of the respondent No. 1 because of the absence of the respondent No. 1 at the relevant time. Mr. Maitra also referred to a Notification dated 12th March, 1969 issued by the Deputy Secretary, Land and Land Revenue Department, Government of West Bengal, whereby the Governor appointed the respondent No. 2 to act as Treasury Officer, Calcutta Collectorate (which is same as the Collector) in addition to his own duties as the Deputy Collector of Land Revenue for the period from 13-6-69 to 17-6-69 when Sri A.R Biswas, the Collector was on leave. Mr. Maitra contended that the subsequent Notification giving retrospective effect could not validate an act, particularly which affected the rights of the petitioner, which act was done and performed at a time when he had no authority in that behalf. Mr. Maitra also referred the decision of the Central Government on Central Civil Services (Classification, Control and Appeal) Rules, 1965 whereby it was decided as under:—

“Officers performing current duties of a post cannot exercise statutory powers under the Rules—An Officer appointed to perform the current duties of an appointment can exercise administrative or financial powers vested in the full-fledged incumbent of the post but he cannot exercise statutory powers whether those powers are derived direct from an Act of Parliament (e.g Income Tax Act) or Rules, Regulations and Bye-laws made under various Articles of Constitution (e.g Fundamental Rules, Classification, Control and Appeal Rules, Civil Service Regulations, Delegation of Financial Powers Rules, etc).

4. Mr. Maitra in support of his above contention relied on the following decisions:—

(A) T.R Pandey v. The Chief Commissioner, Andaman & Nicobar Islands, reported in (1978) Lab. I.C 41 where a Division Bench of this Court quoted with approval the said decision of the Central Government and came to the conclusion that one Mr. Narayana who issued the order of punishment in that case was not competent to pass the said order inasmuch as he did not have any authority on the date of passing of the said order.

(B) K.K Marty v. The General Manager, South Eastern Railway, reported in 62 CWN 169. Here a single Judge of this Court relied on his own decision in A.R.S Choudhury v. The Union of India, reported in 60 CWN 933 and observed as follows:—

“The charge-sheet ought to be in the name of the punishing authority…………It is obvious that in the very nature of things a show cause notice cannot be issued except by an authority which can punish and which calls upon a delinquent to explain his conduct with a view to inflict punishment if the explanation is insufficient or un-satisfatory. It is unthinkable that any self-chosen champion can take upon himself to investigate the commissions and omissions of a civil servant although he might have no power to inflict any punishment………”.

5. Mr. Maitra next contended that the chargesheet was also bad and liable to be set aside and quashed inasmuch as the same was based on suspicion A suspicion of guilt cannot be made the basis of an offence and a man cannot be punished on suspicion nor can his position be jeopardised on mere suspicion. In support of his contention Mr. Maitra cited a decision of the Supreme Court in Nand Kishore Prasad v. State of Bihar, reported in 1978 Lab IC 1106, where the Supreme Court observed as under:—

“Disciplinary proceedings before domestic tribunal are of a quasi-judicial character; therefore the minimum requirement of the rules of natural justice is that the Tribunal should arrive at its conclusion on the basis of some evidence, i.e evidential material which with some degree of definiteness points to the guilt of the delinquent in respect of the charge against him. Suspicion cannot be allowed to take the place of proof even in domestic inquiries. Mr. Maitra next contended that the enquiry report made by the Enquiring Authority was bad and erroneous and in violation of the principles of natural justice. It was erroneous as the money which had been deducted by the petitioner from the salaries of the employees for deposit in recurring deposits scheme with the Savings Bank was not Government money. It belonged to the employees concerned. It was in violation of principles of natural justice inasmuch as, a postal employee, as will appear from the records, was examined without informing the petitioner that the said witness would be called and examined nor any opportunity was given to the petitioner to cross-examine the said witness. It is not known to what extent the decision of the Enquiring Authority was affected by the evidence of the said witness.

6. The last contention of Mr. Maitra was that the second show-cause notice was bad. Firstly as it was not in compliance with the liberty given by Amiya Kumar Mookerji, J.N liberty was given by his Lordship to dismiss the petitioner when no such proposal was made by the Enquiring Authority, secondly, the punishing authority was not entitled to inflict higher punishment than proposed by the Enquiring Authority unless it recorded its reasons for disagreeing with the proposal of the Enquiring Authority and no such reasons have been recorded as provided in Rule 10(12) of the West Bengal Services (Classification, Control and Appeal) Rules, 1971, which is mandatory. Secondly, as the purpose of the second show cause notice was not only to show cause against the proposed punishment but also to show cause against the reasons given by the Enquiring Authority and the punishment proposed by it. No opportunity, in the instant case, was afforded to the petitioner to show cause or to challenge the reasons given or the alleged facts purported to have been found by the Enquiring Authority against the petitioner. The disciplinary authority proceeded with a biased mind and on the basis of having accepted the findings of the Enquiring Authority and merely asked the petitioner to show cause why he should not be dismissed from his service. In support of his contention, Mr. Maitra relied on the following decisions:—

(1) State of Assam v. Bimal Kumar Pandit, reported in AIR (1963) SC 1612 here the Supreme Court observed as under:—

“In issuing the second notice, the dismissing authority naturally has to come to a tentative or provisional conclusion about the guilt of the public officer as well as about the punishment which would meet the requirement of justice in his case, and it is only after reaching conclusion in both these matters provisionally that the dismissing authority issues the second notice. The second opportunity enables the public officer to cover the whole ground and to plead that no case had been made out against him for taking any disciplinary action and then to urge that if he fails in substantiating his innocence, the action proposed to be taken against him is either unduly severe or not called for”.

(2) Union of Indian v. H.C Goel, reported in AIR (1964) SC 364. Here the Supreme Court after considering the facts and circumstances of the case observed as under:—

“Now, in this state of the evidence, how can it be said that the respondent even attempted to offer a bribe to Mr. Rajagopalan. Mr. Rajagopalan makes a definite statement that the respondent did not offer him a bribe. He merely refers to the fact that the respondent took out a paper from his wallet and the said paper appeared to him like a hundred rupee note double folded. Undoubtedly, Mr. Rajagopalan suspected the respondent's conduct and so, made a report immediately. But the suspicion entertained by Mr. Rajagopalan cannot, in law, be treated as evidence against the respondent even though there is no doubt that Mr. Rajagopalan is a straight-forward and an honest officer. Though we fully appreciate the anxiety of the appellant to root out corruption from public service, we cannot ignore the fact that in carrying out the said purpose, more 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 in the present enquiry and borne in mind the plea made by the learned Attorney General, but we are unable to hold that on the record, there is any evidence which can sustain the finding of the appellant that charge of No. 8 has been proved against the respondent”.

7. Mr. Sakti Prasad Mukherjee, learned Advocate appearing for the respondent contended that the disciplinary proceedings cannot be said to be wholly bad on the grounds as urged by Mr. Kashi Kanta Maitra nor can the enquiry report or the second show cause notice be said to be bad. The petitioner was given ample opportunity to prove his innocence and to disprove the charges made against him. There was no denial of any opportunity to the petitioner in that respect but if the law as enunciated by the Supreme Court and this court was in favour of the petitioner then in that event he is unable to add anything contrary thereto. The contentions of Mr. Maitra has great force.

8. In my opinion, the chargesheet was not issued by authority who was entitled to or empowered to issue the chargesheet on the date when the same was issued and therefore the same was bad and cannot be sustained. Admittedly there were certain charges which were based merely on suspicion and suspicion cannot be made a ground for charging a person with guilt. The mon by could not be termed as Government money inasmuch as the same was deducted by the petitioner from the salaries of the employees for deposite in the Savings Bank which belonged to the employees from whose salaries the same was deducted. Even the money while remaining with savings bank cannot and could not acquire the character of Government money and the Government could not claim any right, title and interest therein. No reason has been given by the disciplinary authority in accordance with the provisions contained in rule 10(12) of the West Bengal Services (Classification, Control and Appeal) Rules, 1971 as to the higher punishment sought to be inflicted on the petitioner. The fact that the witness who was examined by the respondents without informing the petitioner and without affording the petitioner any opportunity to cross-examine him vitiated the enquiry proceeding. The disciplinary authority proceeded with a biased mind as will be evident from the second show cause notice and in fact the petitioner was not given any opportunity to challenge the findings of the enquiring authority. The second show cause notice also is, therefore, bad and cannot be sustained.

9. For all the above reasons the petitioner succeeds. The rule is made absolute. There will be no order as to costs.

10. Rule made absolute.