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IN THE HIGH COURT AT CALCUTTA
Chandan Kumar Banerjee, J.
Paresh Chandra Dutta – Petitioner
Versus
Collector of Calcutta & Ors. – Respondents
Civil Rule No. 1189 (w) of 1976
Decided On: September 1, 1978
DISCIPLINARY PROCEEDINGS - CHARGESHEET - VALIDITY - ENQUIRY REPORT - NATURAL JUSTICE - SECOND SHOW CAUSE NOTICE - VALIDITY - WEST BENGAL SERVICES (CLASSIFICATION, CONTROL AND APPEAL) RULES, 1971 - RULES 8(VIII), 10(12).
Fact of the Case:
The petitioner, a Lower Division Clerk, was issued a chargesheet alleging misappropriation of funds deducted from employees' salaries for deposit in recurring deposits. He was demoted to his original post after an enquiry. He challenged the demotion and obtained an injunction. A second show cause notice was issued proposing dismissal from service. The petitioner challenged the validity of the chargesheet, enquiry report, and second show cause notice.
Finding of the Court:
The Court held that the chargesheet was invalid as it was issued by an unauthorized person. The enquiry report was also invalid as it was based on suspicion and the petitioner was not given an opportunity to cross-examine a witness. The second show cause notice was also invalid as it did not comply with the liberty granted by the Court and the petitioner was not given an opportunity to challenge the findings of the enquiry authority.
Issues: 1. Whether the chargesheet was validly issued? 2. Whether the enquiry report was valid? 3. Whether the second show cause notice was valid?
Ratio Decidendi: 1. A chargesheet must be issued by an authorized person. Suspicion alone cannot be the basis of a charge. 2. An enquiry report must be based on evidence and the accused must be given an opportunity to cross-examine witnesses. 3. A second show cause notice must comply with the liberty granted by the Court and the accused must be given an opportunity to challenge the findings of the enquiry authority.
Final Decision: The Court made the rule absolute and quashed the second show cause notice.
The petitioner was a Lower Division Clerk in Comilla, Tippora Collectorate. After the partition of India the petitioner co-opted for India and was posted in the Land Acquisition Collectorate in Calcutta. Thereafter be was confirmed as an Upper Division Clerk in the Election Department and subsequently he acted as Nazir of the Collectorate. Against the said promotion of the petitioner there was representation by other employees and thereupon the petitioner was demoted to his original post of Lower Division Clerk by the Divisional Commissioner. The petitioner moved this Court under Article 226 of the Constitution of India and obtained a rule and an order of injunction against the said order or demotion of the petitioner in C.R.7447(w) of 68. On 28th June, 1969 the petitioner was served with a chargesheet. The charges mainly were ; (1) the petitioner collected certain amounts form the salaries of the staff on the pay day for depositing in the respective Cumulative Deposit Accounts (Savings Bank and Postal) of each person but the same were not deposited promptly and kept the same with him and when the irregularity was brought to the notice of the authorities the deposits were made by the petitioner long afterwards whereby the said depositers were put to loss on account interest, (2) the said amounts which were not duly deposited by the petitioner were monies belonging to the Government of India and therefore the petitioner had no right to keep the money in his hand without duly accounting for the same and the amount was unauthorisedly and without the consent and knowledge of the Officer-in-charge of Collectorate was held by the petitioner, (3) the conduct of the petitioner in non-complying with the rules gave rise to the suspicion that the petitioner temporarily defalcated Government money. The petitioner was asked to show cause why be should not be dismissed from his service or otherwise dealt with. In reply to the said show cause notice, the petitioner submitted a written explanation on the 4th July, 1969. The petitioner appeared before the Enquiring Authority and cross-examined the witnesses produced by the said authority. The said authority, however produced and examined another witness but the petitioner was neither informed nor had any knowledge of the said witness and had no opportunity to cross-examinee him.
2. By an order made by the Collector on the 28th August, 1970 the petitioner was reverted to the post of Lower Division Clerk without giving the petitioner any second n0tice to show cause against the punishment proposed to be inflicted. Against the said order of reversion the petitioner moved a writ petition in this Court, being C.R. 1507(w) of 1970. Amiya Kumar Mookerji, J. by his judgment and order dated 20th November, 1975 quashed the said order of reversion on the ground that before the order of reversion no second show cause notice, was issued to the petitioner. By the said order opportunity was, however, given to the Collector to issue a second show cause notice and to proceed in accordance with law, and all points taken in the said writ petition were left open. On the 12th December, 1975 the Collector of Calcutta gave the impugned second show cause notice to the petitioner. The second show cause notice, however, proceeded on the basis as if the Collector, that is, the disciplinary authority, had made up his mind that the petitioner was guilty of the charges made against him and it was stated then in that the said disciplinary authority in agreement with the enquiring officer was satisfied that the petitioner had been found guilty of all the charges brought against him, even leaving aside the evidence of Assistant Collector (Small Savings) Witness No. 7 whom the petitioner had no opportunity to cross examine. By the said second show cause notice the said disciplinary authority proposed to impose upon the petitioner the penalty of dismissal from service as specified in Clause (viii) of Rule 8 of the West Be
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