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HIGH COURT OF CALCUTTA
D. N. Sinha
AMULYA KUMAR SIKDAR - Appellant
Versus
L. M. BAKSHI - Respondent
Civil Revn. 1887 Of 1955
Decided On : MARCH 24, 1958
DISMISSAL FROM SERVICE - DEPARTMENTAL ENQUIRY - EVIDENCE TAKEN BY PERSON OTHER THAN ENQUIRING AUTHORITY - VIOLATION OF RULES OF NATURAL JUSTICE - ORDER OF DISMISSAL QUASHED.
Fact of the Case:
Petitioner, a State Transport driver, was dismissed from service following a departmental enquiry into an accident involving a State bus he was driving. The enquiry was conducted by the Director-in-charge, Lake Depot, but evidence from two witnesses was taken by the Superintendent, Lake Depot, on two days when the Director-in-charge was ill.
Finding of the Court:
The court found that the procedure adopted in the departmental enquiry was improper and violated the rules of natural justice. The petitioner was entitled to require that the enquiring authority should see the demeanour of the witnesses and hear them himself.
Issues: 1. Whether the Director-in-charge, Lake Depot, was the competent authority to dismiss the petitioner from service. 2. Whether the order of dismissal was retrospective in operation. 3. Whether the departmental enquiry was conducted in accordance with the rules of natural justice.
Ratio Decidendi: 1. The court did not decide the issue of whether the Director-in-charge was the competent authority to dismiss the petitioner, as it was a disputed question of fact. 2. The court did not decide the issue of whether the order of dismissal was retrospective in operation, as it was also a disputed question of fact. 3. The court held that the departmental enquiry was not conducted in accordance with the rules of natural justice, as evidence from two witnesses was taken by the Superintendent, Lake Depot, instead of the Director-in-charge.
Final Decision: The court quashed the order of dismissal and directed the respondents not to give effect to it. The court also directed the respondents to proceed with the departmental enquiry from the point of time before the evidence was adduced.
( 1 ) THE facts in this case are shortly as follows: In or about March, 1949, the petitioner was appointed as a State Transport driver under the Directorate of Transportation, State of West Bengal, having been appointed by Mr. H. D. Choudhury, Special Officer, Home (Transport) Department. On or about 22-1-1954 the petitioner was plying State bus No. WBS 938. White so driving, there was an accident at the junction of Harrison Road and Strand Road. There was a collision between the bus and a lorry and the State bus suffered certain damages. On the same day a first information report was lodged at the Burrabazar Police Station and the petitioner gave an explanation. According to him, the explanation was not properly recorded. On 16-2-1954 an order of suspension was passed against the petitioner. On 17-2-1954 a charge-sheet was framed which was served on the petitioner on 19-2-1954. The gravamen of the charge was that there was an accident following which the State bus, which was being driven by the petitioner, was damaged heavily. It was stated that the report put in by the petitioner had stated that brakes had failed but this was not accepted. The charge was that the petitioner was driving the vehicle rashly and negligently as a result of which the accident took place and in order to cover up his guilt, the petitioner had deliberately severed the brake hose. The charge-sheet called upon him to show cause why disciplinary action should not be taken against him. On 22-2-1954 the petitioner submitted his written explanation. The charge-sheet was issued by the opposite party No. 1, the Director-in-charge, Lake Depot, Government of West Bengal. On 23rd/24th February, 1954 a letter was issued by the Director-ill-charge stating that the case will be heard on 9-3-1954 and the petitioner was directed to be present with his witnesses. On 9-3-1954 the case was heard, not by the Director-in-charge, but by Nirmal Kumar Bhattacharjee, Superintendent, Lake Depot. The next two hearings on 25-3-1954 and 30-3-1954 respectively, took place before the opposite party No. 1 but the last hearing, that is, on the 4-5-1954, when further evidence was taken was again heard by the said Nirmal Kumar Bhattacharjee. It may be mentioned that three witnesses, namely, S. D. Ganguly, C. Mondal and M. R. Koley, gave evidence before Nirmal Kumar Bhattacharjee. On the 25-5-1954, the Director-in-charge, that is to say, the opposite party No. 1, passed an order which order contains his finding in respect of the enquiry. A copy thereof is annexed to the counter-affidavit filed on behalf of the opposite parties Nos. 1 to 4. By his order the Director-in-charge found the petitioner guilty of the charge preferred against him and referred to the evidence of C. Mondal and M. R, Koley and discussed them. By the same order, the petitioner was asked to show cause in writing within 48 hours why he should not be discharged from service. On 28-5-1954 an order was made discharging him from service. This order of discharge was communicated to the petitioner by a letter dated 31-5-1954. In this letter, a copy whereof is annexure "c" to the counter-affidavit, the petitioner was informed that his reply to the charge-sheet had been found totally unsatisfactory and "as the charge has been proved, you are discharged from 'service in this Directorate with effect from 28-5-1954. " If this is an order of discharge, as it appears to be, then indeed it is an order of discharge with retrospective effect and a point has been taken, namely, that the order is bad because there cannot be an order of dismissal with retrospective effect. It has, however, been stated in the counter-affidavit that the actual order of discharge was made on 28-5-1954, and therefore there was no question of it being retrospective.
( 2 ) THE petitioner preferred an appeal which appeal was dismissed on 15-9-1954. He has now come up to this Court and a Rule was issued on 15-3-1955 and in this application th
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