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1991 Supreme(Cal) 413
IN THE HIGH COURT AT CALCUTTA
Ruma Pal, J.
Wangel Zimba
Vs.
State of West Bengal & Ors.
C.O. No. 10737 (W) of 1991
Decided on : September 3, 1991
L.C. Bihani, Miss S. Mukherjee for the petitioner;
Mrs. Chhabi Roy (Das) for the respondents.
A disciplinary authority cannot issue a second charge-sheet on identical material after the first charge-sheet has been set aside by the court.
Headnote:
CHARGESHEET - DISCIPLINARY PROCEEDINGS - WB SERVICE (CLASSIFICATION CONTROL AND APPEAL) RULES, 1971, RULE 8(VIII) - CANCELLATION OF SECOND CHARGESHEET - VALIDITY OF SECOND CHARGESHEET - RE-ISSUANCE OF CHARGESHEET ON IDENTICAL MATERIAL - COURT'S INTERVENTION - LIMITATION.
Fact of the Case:
Petitioner, a member of the W.B.C.S. (Ex.) Service, challenged a second charge-sheet issued against him for allegedly falsely declaring his community to gain admission in the W.B.C.S. (Ex.) Examination. The petitioner had successfully challenged the first charge-sheet in a previous writ petition (C.O. No. 14292(W) of 1989) on the grounds that the evidence produced was insufficient to support the charges. The second charge-sheet was issued on identical material as the first charge-sheet.
Finding of the Court:
The court held that the second charge-sheet was liable to be quashed as it was issued on the identical material as the first charge-sheet, which had already been set aside by the court. The court found that the respondents could not have set aside the earlier charge-sheet and issued a second charge-sheet on the identical material.
Issues: 1. Whether the second charge-sheet issued against the petitioner was valid. 2. Whether the respondents could issue a second charge-sheet on identical material after the first charge-sheet had been set aside by the court.
Ratio Decidendi: The court held that the second charge-sheet was not valid as it was issued on the identical material as the first charge-sheet, which had already been set aside by the court. The court relied on the judgment in the previous writ petition (C.O. No. 14292(W) of 1989), where it had found that the evidence produced was insufficient to support the charges. The court also noted that the respondents had not controverted the allegations made in the writ petition, including the allegation that the petitioner was being denied the revised scale of pay due to the pendency of the disciplinary proceedings.
Final Decision: The court quashed the impugned charge-sheet and all proceedings thereunder, including the notice of hearing. The court also directed the respondents to grant Scale No. 17 in accordance with the Revision of Pay and Allowance Rules 1991 to the petitioner, if the same had been withheld on the ground of the pendency of the disciplinary proceedings.
Burna Pal, J.:
The petitioner is a member of the W.B.C.S. (Ex.) Service having joined the said service in 1978. His challenge in this writ petition is to a charge-sheet dated 30th April, 1991 by which disciplinary proceedings have been sought to be commenced against the petitioner. The second grievance is that by reason of the pendency of the disciplinary proceedings which have been wrongly initiated, the petitioner is being denied the revised scale of pay to which he is otherwise entitled.
2. This writ application was moved on 10th June, 1991 upon notice to the respondents. Directors were given for the filing of affidavits. No affidavits were filed. As such the allegations contained in the petition must be taken to be uncontroverted.
3. The facts are briefly as follows:-
On 29.3.1988 the petitioner was issued a charge-sheet (referred to as the first charge-sheet) by which/disciplinary proceedings were sought to be taken against the petitioner on the allegation that the petitioner had appeared in the W.B.C.S. (Ex.) Examination by falsely declaring himself to belong to the Yolmo Community which is a Scheduled Tribe. The petitioner submitted a written statement of defence denying the allegations in the first charge-sheer. In particular it was pointed out that Zimbas belong to the Yolmo Tribe and that this had been confirmed by the Special Officer, Scheduled Castes and Scheduled Tribes, Welfare Department, Darjeeling. Evidence was taken. The petitioner was served with a second show cause notice on 24th October, 1989 in which it was proposed to impose the penalty of dismissal from service on the petitioner under Clause (viii) Rule 8 of the West Bengal Service (Classification Control and Appeal) Rules, 1971.
4. The petitioner challenged the enquiry proceedings and the first chargesheet and the said show cause notice under Article 226 of the Constitution of India. The matter which was marked as C.O. No. 14292(W) of 1989 was disposed of by a judgment of Paritosh Kr. Mukherjee, J. on 14th June, 1990. By the said judgment the learned Judge held, inter alia, as follows :
"Regarding point No.1, in my view, the Tribal Officer having issued a certificate after making necessary enquiries as for back as in 1970 and coming to the conclusion that the petitioner belonged to the Yolmo Community (Scheduled Tribe) the Disciplinary Authority should not have issued the charge-sheet dated March 29, 1988, after 10 years since the petitioner joined service in 1978."
"Further, I am of the view that no charge-sheet at all could be issued on the basis of such evidence as produced on behalf of the disciplinary authority because it appears that there were no materials from the evidence of P.W. 2 Dawa Dhondop and P.W. 3 N. Wangdi, Special Officer, Scheduled Caste and Schedule Tribe, Darjeeling. Such, in my view, it cannot be suggested that the charges against the petitioner have been proved by the disciplinary authority beyond all reasonable doubts. In the result, the enquiry report dated June 19, 1989 the order of suspension and the second show cause notice dated October 24, 1989 (being Annexures 'H' and 'I' respectively) are set aside by issue of an appropriate writ in the nature of Certiorari."
5. Having held that the charges were not based on any material and therefore could not be proceeded with, the learned Judge held as follows:
"This will not, however, prevent the disciplinary authority from proceeding with the charge-sheet on the basis of submission of statement and of defence filed on behalf of the petitioner afresh if the disciplinary authority is of the opinion that still there are materials against the petitioner for such proceedings and in accordance with law after giving reasonable opportunities to the petitioner to produce evidence, both oral and documentary, as referred to hereinabove."
6. The respondents have now issued the second charge-sheet, which is impugned in these proceedings. In the second charge-sheet it was specifically stated
