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HIGH COURT OF CALCUTTA
B. N. Banerjee, Niyogi
SUDHIR RANJAN HALDER - Appellant
Versus
STATE OF WEST BENGAL - Respondent
A. F. O. D. 82 Of 1956 (Pauper)
Decided On : MARCH 22, 1961
SUDHIR RANJAN HALDER - SUSPENSION - DISMISSAL - REINSTATEMENT - ARREARS OF SALARY - LIMITATION - NOTICE UNDER SECTION 80 OF THE CODE OF CIVIL PROCEDURE - VALIDITY - GOVERNMENT OF INDIA ACT, 1935 - SECTION 240 - BENGAL RATIONING ORDER, 1943 - CLAUSE 11 AND 14 - BENGAL CLOTH RATIONING ORDER, 1945 - CLAUSE 12 - ESSENTIAL SUPPLIES (TEMPORARY POWERS) ACT, 1946 - SECTION 7 (1) - CIVIL PROCEDURE CODE, 1908 - SECTION 80 - LIMITATION ACT, 1963 - ARTICLE 102.
Fact of the Case:
The plaintiff, a lower division clerk under the then Government of Bengal, was suspended on the ground of his arrest by the Enforcement Branch for wrongful and illegal possession of ration cards and cloth folders. A criminal case was started against him for contravention of the Bengal Rationing Order, 1943 and the Bengal Cloth Rationing Order, 1945. While that case was pending, disciplinary proceeding was started against him and he was dismissed from service. The plaintiff was acquitted in the criminal case. He filed a suit for a declaration that the order of his dismissal was void and inoperative and for recovery of arrears of pay and allowances.
Finding of the Court:
The court held that the notice given to the plaintiff to show cause against the charge of misconduct was too short and did not give him any opportunity to show cause. The court also held that the Board of Enquiry, which ex parte found the plaintiff guilty of the charge made against him, did not itself make any enquiry. It relied on certain ex parte reports, made either by the Rationing Officer or by a Police Officer, and endorsed them. The court further held that the order of dismissal was also faulty as it was made retrospective. The court also held that the plaintiff was not given a second opportunity to show cause against the punishment meted out to him. The court also held that the notice under Section 80 of the Code of Civil Procedure was valid and that the plaintiff's claim for arrears of salary was not barred by limitation.
Issues: 1. Whether the notice given to the plaintiff to show cause against the charge of misconduct was too short and did not give him any opportunity to show cause? 2. Whether the Board of Enquiry, which ex parte found the plaintiff guilty of the charge made against him, did itself make any enquiry? 3. Whether the order of dismissal was faulty as it was made retrospective? 4. Whether the plaintiff was given a second opportunity to show cause against the punishment meted out to him? 5. Whether the notice under Section 80 of the Code of Civil Procedure was valid? 6. Whether the plaintiff's claim for arrears of salary was barred by limitation?
Ratio Decidendi: 1. A notice to show cause against a charge of misconduct must give the person charged a reasonable opportunity to show cause. A notice that gives too short a period to the person charged to show cause is invalid. 2. A Board of Enquiry cannot rely on ex parte reports to find a person guilty of misconduct. It must itself make an enquiry and give the person charged an opportunity to be heard. 3. An order of dismissal cannot be made retrospective. It can only take effect from the date it is made. 4. A person who is dismissed from service is entitled to a second opportunity to show cause against the punishment meted out to him. 5. A notice under Section 80 of the Code of Civil Procedure must inform the Government or the public officer of the nature of the suit proposed to be filed against it or him, the facts on which the claim is founded and the precise reliefs asked for. 6. A civil servant can maintain a suit for arrears of salary against the Government. The period of limitation for such a suit is 3 years from the date when the wages accrued due.
Final Decision: The appeal was allowed, with costs, to the extent indicated above. Costs shall be Payable by respondent No. 1.
( 1 ) THE plaintiff Sudhir Ranjan Halder, who is the appellant before us, obtained an appointment as a lower division clerk, under the then Government of Bengal, on April 15, 1944. At the time material to the suit, out of which this appeal arises, however he was serving as a Sub-Inspector of Rationing, under the Rationing Officer, Bhowanipur Sub-Area, Calcutta.
( 2 ) ON October 31, 1947, the residence of the plaintiff at 13a, Gangaprosad Mukherjee Road, Bhowanipur was searched by the men of the Enforcement Department, who seized a number of Ration Cards and cloth folders allegedly from the possession of the plaintiff. Thereupon, the plaintiff was arrested by the Police on the ground of wrongful and illegal possession of the said cloth folders and ration cards.
( 3 ) BY an order. Exhibit 2 (a), dated November 4, 1947, the Joint Controller of Rationing suspended the plaintiff, with effect from the date of the order, on the ground of his arrest by the Enforcement Branch. The aforesaid order was forwarded to the plaintiff on November 5, 1947, and was said to have been received by him on November 8, 1947.
( 4 ) THE plaintiff was thereafter charged with having contravened Clauses 11 and 14 of the Bengal Rationing Order, 1943 and Clause 12 of Bengal Cloth Rationing Order, 1945, and was prosecuted for an offence punishable under Section 7 (1) of the Essential Supplies (Temporary Powers) Act, 1946. While that case was pending, disciplinary proceeding was started against the plaintiff and the following charge (Exts. C and E) was drawn up against him:--"proceedings drawn up against Sri Sudhir Ranjan Halder, S. I. Whereas the Police in course of search of his room found 65 ration cards and 27 cloth folders in his possession and as a consequence thereof a criminal case has been started against him for contravention of Bengal Cloth Rationing Order and Bengal Rationing order he is to show cause by 10-6-48 why he will not be dismissed from the service of the Govt. , on the charge mentioned above. Sd/- J. N. Roy. 3-6 R. O. Bhowanipur. "
( 5 ) THIS charge was said to have been forwarded to 'the plaintiff by registered post, to his home address at Deui Kati, Barisal (East Pakistan), on June 8, 1948 (Exts. F and F (1)) and was said to have refused by him on June 18, 1948.
( 6 ) THERE was a Board of Enquiry constituted by the authorities to go into the charge framed against the appellant. Before the Board started its enquiry, we find the following two orders in the memorandum of proceeding (Ex. A):
Memo No. T/1252/g. S. Hated 30-6- 48 from R. O. Bhowanipur intimates that the copy of proceedings sent under Registered Post to the home address of S. I. Sudhir Ranjan Halder has been returned with this remark 'refused'; as such a copy of proceedings as at SI. 19 has been
hung up by him on the office notice Board,
P. Mitra. The Clerk should be dismissed
2-7-48. from service.
K. K. Mitra
S. O. (S) 3. 7.
The case of Sri Sudhir Ranjan Halder. . . . . . . . . . should go to the Enquiry Board with a precis.
Illegible
S. O. (S) Reed. 2 P. M.
5. 7 P. Mitra
6-7-48.
( 7 ) THE cases of the appellant and a co-accused, Nalini Ranjan Halder (with whom we are not concerned in this appeal), were taken up by the Board for investigation and the following report was submitted:--
The case against Sri Nalini Ranjan Halder , l. D. C. Ballygunge Rationing Office, and Sri Sudhir Ranjan Halder , s. I. of Bhowanipore Rationing Office is that a large number of ration cards and cloth folders were seized from their home by the enforcement Branch of the Calcutta Police on 80-10-47. . The Enforcement Branch detected the cards under the pillows and bedding of L. D. Clerk, Nalini Halder. A police case is pending against both the delinquents. Sudhir Ranjan Halder , S. I. is however absent to-day. From the reports of the Inspector Calcutta Police and r. O. it is clear that L. D. C. and the Sub-Inspector took these ration cards for illegal use. There is
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