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High Court Of Calcutta
S. B. SINHA
PRADIP KUMAR CHATTERJEE - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Matter 2066 Of 1994
Decided On : 06/12/1995
DISMISSAL FROM SERVICE - NATURAL JUSTICE - PRINCIPLES OF - VIOLATION - FAIRNESS IN DISCIPLINARY PROCEEDING - PART OF PRINCIPLES OF NATURAL JUSTICE - ENQUIRY OFFICER ACTING IN TERMS OF DIRECTIONS OF DISCIPLINARY AUTHORITY - COMMITS ILLEGALITY - ENQUIRY OFFICER REFUSING TO GRANT COPIES OF WITNESS STATEMENTS FOR EFFECTIVE CROSS-EXAMINATION - VIOLATION OF PRINCIPLES OF NATURAL JUSTICE - CONFESSION OF AN ACCUSED BEFORE JUDICIAL MAGISTRATE - CANNOT BE USED AGAINST A THIRD PARTY IN DEPARTMENTAL PROCEEDING.
Fact of the Case:
Disciplinary proceeding initiated against the petitioner on charges of forgery of bills payable to pensioners. Petitioner denied the charges and raised a contention that the bills were forged and fabricated by one Shankar Sen Gupta, LDC. Petitioner sought assistance of a helper, which was refused by the Enquiry Officer. Petitioner also prayed for copies of statements of witnesses to enable him to cross-examine them effectively, but the same was rejected by the Enquiry Officer. Petitioner was dismissed from service by an order dated 10.5.89. He preferred an appeal before the Commissioner, Presidency Division, which was dismissed on 22.8.91.
Finding of the Court:
The court held that the refusal of the Enquiry Officer to allow the petitioner to be assisted by a helper, the denial of copies of statements of witnesses for effective cross-examination, the consideration of the confession of an accused before a Judicial Magistrate in a departmental proceeding, and the Enquiry Officer acting in terms of directions of the Disciplinary Authority were all violative of the principles of natural justice and fairplay. The court further held that the impugned order of dismissal and the appellate order were not sustainable in law.
Issues: 1. Whether the refusal of the Enquiry Officer to allow the petitioner to be assisted by a helper violated the principles of natural justice? 2. Whether the denial of copies of statements of witnesses for effective cross-examination violated the principles of natural justice? 3. Whether the consideration of the confession of an accused before a Judicial Magistrate in a departmental proceeding was permissible? 4. Whether the Enquiry Officer acting in terms of directions of the Disciplinary Authority was an illegality?
Ratio Decidendi: 1. The court held that the refusal of the Enquiry Officer to allow the petitioner to be assisted by a helper violated the principles of natural justice, as the petitioner was facing 25 charges of serious misconduct, including defalcation, and the Enquiry Officer was a law-knowing person. 2. The court held that the denial of copies of statements of witnesses for effective cross-examination violated the principles of natural justice, as the petitioner was entitled to cross-examine the witnesses to show that he had nothing to do with the alleged misconduct and that the acts of illegalities, if any, were committed by other officers. 3. The court held that the consideration of the confession of an accused before a Judicial Magistrate in a departmental proceeding was not permissible, as such a statement could not be used against a third party in a departmental proceeding. 4. The court held that the Enquiry Officer acting in terms of directions of the Disciplinary Authority was an illegality, as the Disciplinary Authority could not interfere with the enquiry proceedings that were quasi-judicial in nature.
Final Decision: The court allowed the writ petition, set aside the impugned order of dismissal and the appellate order, and directed the disciplinary authority to hold a de-novo enquiry and conclude the same within four months from the date of communication of the order. The Disciplinary Authority was directed to appoint another enquiry officer and a presenting officer.
( 1 ) THE Court: This application is directed against the order dated 10. 5. 89 as contained in annexure K to the writ petition whereby and where under the petitioner was dismissed from service as also the order dated 22. 8. 91 passed by the appellate authority.
( 2 ) THE fact of the matter shortly stated is as follows:
( 3 ) THE petitioner at all material times was working as a clerk attached to the office, of the Sub-divisional Officer, Barasat. Ten criminal cases were instituted against the petitioner at the instance of one Sri Purnendu Bose, Treasury officer in February 1983. The petitioner was discharged from all the aforementioned criminal cases in terms of the provisions of section 167 (5) of the Code of Criminal Procedure as no charge sheet was filed within the statutory period. During the pendency of the aforementioned criminal cases, on l8th May, 1983 the petitioner was served with a chargesheet. The petitioner filed an application before the Enquiry Officer for stay of the departmental proceeding but the same was refused. He filed a writ application in this court, but the same was dismissed by an order dated 3. 2. 84. The appeal as against the said order being FMAT 492 of 1984 was also dismissed by an order dated 15th March, 1984. The petitioner appeared before the Enquiry Officer but did not file his written statement inter alia on the ground that thereby he would be disclosing his defence. On 2. 4. 84 the petitioner sought for the assistance of a helper stating that he was ill and the petitioner was facing 25 charges. It was further pointed out that the Enquiry Officer is a law knowing person. In answer to the charges that related to forgery of certain bills payable to some pensioners, the petitioner denied the same and raised a contention that the said bills are forged and fabricated. It is the petitioner's definite case that the said bills were written by one Shankar Sen Gupta, LDC. He, therefore, made a prayer that the said bills be sent to the Handwriting Expert that was not considered by the Enquiry Officer. The petitioner has raised also other contentions with regard to the irregularities and/or illegalities in the conduct of the disciplinary proceedings.
( 4 ) ON 14. 1. 85 the petitioner sought for an adjournment but by a letter dated 16. 1. 85 that was served upon the petitioner on 31. 1. 85, the petitioner was asked to appear on 21. 1. 85. The petitioner appeared before the Enquiry Officer on 2. 2. 85 but allegedly no opportunity was given to him to argue his case. The Enquiry Officer submitted his report on 4. 2. 85 a copy whereof was served on the petitioner on 17. 2. 86 along with second notice to show cause. He questioned the said second show cause notice by filing a written application that was dismissed by an order dated 18. 3. 86. The petitioner gave reply to the second show cause notice on 8. 3. 86. By an order dated 10. 5. 89 the petitioner was dismissed from service. He preferred an appeal before the Commissioner, Presidency Division. As according to the petitioner, the said appeal had not been disposed, he again made a representation praying for early disposal of the appeal. On 8. 7. 94 this writ application was filed. According to the petitioner, he came to learn from the affidavit-in-opposition that the said appeal has been dismissed on 22. 8. 91. The petitioner has filed a supplementary affidavit questioning the said order of the appellate authority.
( 5 ) IN their affidavit-in-opposition the respondent Nos. 1, 2 and 3 inter alia, contended that the petitioner was afforded full opportunity to defend his case in the departmental enquiry. It has been urged that as the petitioner has withdrawn the group insurance amount as also the amount of general provident fund, he must be held to have accepted the order of dismissal. It is stated that the petitioner could have maintained further appeal against the order of the appellate authority before the Board of Revenue.
( 6 ) SRI Am
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