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HIGH COURT OF CALCUTTA
P. B. MUKHARJI
DULAL RANJAN ADETYA - Appellant
Versus
R. K. BOSE - Respondent
Suit 88 Of 1957
Decided On : FEBRUARY 11, 1958
CONSTITUTIONAL LAW - ARTICLE 311 - DISMISSAL FROM SERVICE - AUTHORITY COMPETENT TO DISMISS - SUBORDINATE AUTHORITY - RE-ORGANISATION OF DEPARTMENT - ABOLITION OF APPOINTING AUTHORITY - CREATION OF NEW POSTS WITH POWER TO APPOINT AND DISMISS - WHETHER DISMISSAL BY NEW AUTHORITY VIOLATES ARTICLE 311 - REFERENCE TO PAST RECORDS IN IMPOSING PUNISHMENT - WHETHER VIOLATES PRINCIPLES OF NATURAL JUSTICE.
Fact of the Case:
The applicant, a bus conductor, was dismissed from service by the Depot Manager for refusing to perform his duty and gross insubordination. The applicant challenged the order of dismissal on the grounds that (i) the Depot Manager was a subordinate authority to the appointing authority and, therefore, could not dismiss him, and (ii) the order of dismissal was based on extraneous considerations like his past records without giving him any notice.
Finding of the Court:
The court held that the dismissal of the applicant by the Depot Manager did not violate Article 311 of the Constitution as the post of the appointing authority had been abolished and new posts with the power to appoint and dismiss had been created as part of a re-organisation of the department. The court also held that the reference to the applicant's past records in imposing punishment did not violate the principles of natural justice as the applicant himself had put forward specific instances of his past record of service in his explanation to the notice to show cause why he should not be dismissed.
Issues: 1. Whether the dismissal of the applicant by the Depot Manager violated Article 311 of the Constitution. 2. Whether the reference to the applicant's past records in imposing punishment violated the principles of natural justice.
Ratio Decidendi: 1. The court held that the dismissal of the applicant by the Depot Manager did not violate Article 311 of the Constitution as the post of the appointing authority had been abolished and new posts with the power to appoint and dismiss had been created as part of a re-organisation of the department. The court reasoned that the constitutional requirement that a person should not be dismissed by an authority subordinate to the one by whom he was appointed operates when the former appointing authority exists and some other authority subordinate to it wants to exercise the power of dismissal over a civil servant. However, in the present case, the post of the appointing authority itself had been abolished and new posts with different schemes of power and division of duties had come into operation giving the Depot Manager the power to appoint and dismiss with rights of appeal. Therefore, the Depot Manager could not be considered a subordinate authority and the dismissal of the applicant by him did not violate Article 311. 2. The court held that the reference to the applicant's past records in imposing punishment did not violate the principles of natural justice as the applicant himself had put forward specific instances of his past record of service in his explanation to the notice to show cause why he should not be dismissed. The court reasoned that the principle behind disclosing a record to a public servant before a punishment is inflicted on him is to enable him to answer the proposed action. However, in the present case, the applicant himself had asked the dismissing authority to consider his past record of service in his explanation. Therefore, the applicant could not now turn around and say that the authority should not have considered them.
Final Decision: The court dismissed the petition and discharged the Rule and vacated the interim orders, if any. There was no order as to costs.
( 1 ) THIS is an application by Dulal Ranjan Adetya under Article 226 of the Constitution for a Writ of Mandamus and Certiorari in respect of the order of his dismissal. By order dated 23rd/26th February, 1957 and 26th April, 1957 the applicant was discharged from service.
( 2 ) THE facts of this case may be briefly stated. The applicant was appointed as a Bus Conductor in the State Transport Service on the 15th May, 1952 at a monthly salary of Rs. 50/- plus the usual allowances. The appointment was made by one R. K. Bose, then known as the Director of Administration in the Directorate of Transportation, Government of West Bengal. On the 21st November, 1956, the applicant was served with a charge sheet from R. Ghose, Director of Operations. The charge sheet informs him of the serious complaint against the applicant. The gist of the complaint is that the applicant refused to perform his duty and he was charged with 'gross dereliction of duty and gross insubordination'. In fact, the charge sheet expressly states that it has been reported that in the second shift on 20-11-1956 during change of shift at Howrah Control Point at 13-50 hours when the applicant was allotted duty in State Bus WBS 1240 of Route No. 35a he refused to perform his duty over Route 35a and moreover used caustic language to the officers present there against all codes of discipline. He was suspended pending the decision of enquiry into the case and was allowed a subsistence grant of one-fourth of his pay plus full allowances during the period of suspension.
( 3 ) ON the 23rd November, 1956 the applicant submitted the explanation to the charge sheet. In that answer the applicant admits that he signed the way bill with statement of refusal, to work although he says that he had no other option but to do it. On the 27th December, 1956 the next notice to show cause was given to the petitioner by stating:"you have been found guilty of the charge framed against you and proposed for discharge from service. You are, therefore, hereby directed to show cause by the 4th January, 1957 against the proposed order. "
( 4 ) THIS shows that ho was given full notice and particulars of the charges against him. He was given fullest opportunities to answer those charges. He availed of that opportunity and submitted his written answer to that charge. Then he was found guilty of those charges. Thereupon the Depot Manager gave him notice to show cause on the 27th December, 1956 why he should not be discharged from service. The applicant again showed cause on the 2nd January, 1957. In showing cause against the proposed punishment of discharge, it is the applicant who referred to his own past service record to show that the particular officer always found fault with his work. This answer to the second notice to show cause against the proposed action for discharge from service is significant in two ways in that not one of the two objections now taken against the order of discharge is mentioned in that explanation. In the first place, he himself refers to his past record of service with a view to provide extenuating circumstances in order to avoid the punishment of discharge from service. Secondly, no objection was there taken that the Depot Manager could not or was not the proper authority or that he was in any way a subordinate authority vis-a-vis the appointing authority and, therefore, could not dismiss or discharge the applicant. In fact, he says in his letter of the 2nd January, 1957:"the copy of the charge sheet was given by Director-in-Charge, Belghoria Depot, instead of Depot Manager, Belghoria".
( 5 ) ON 23rd/26th February 1957, the Depot Manager of Belghoria Depot passed the following order;"heard the Conductor and seen all the re-cords. The Conductor gave all possible explanations, but none are satisfactory. He refused to carry out the order of the T. I. who allotted his, duty on Route No. 35a on that day instead of the usual duty on Route No. 11a. Subs
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