Calcutta High Court
Shibendra Narayan Roy vs State Of West Bengal And Ors. on 13 May, 2002
Equivalent citations: (2002)3CALLT527(HC)
Author: A.K. Banerjee
Bench: Ashim Kumar Banerjee
JUDGMENT A.K. Banerjee, J.
1. The writ petitioner was a clerk in Barrackpore Municipality. He was entrusted to disburse pecuniary benefits to the retired employees of the municipality. From time to time he was entrusted with funds by the municipality for the said purpose,
2. On a complain received by the municipality from one Rajendra Hari, claimant as the legal heir of Late Rashmani Hari, an ex-employee of the municipality to the effect that the pecuniary benefit was not being disbursed properly, the writ petitioner was charge sheeted by the municipality on 17th August, 1998. It was alleged that out of a sum of Rs. 3,88,346/- paid to the writ petitioner by the municipality a sum of Rs. 53,176/- was neither disbursed nor deposited with the cashier of the municipality. It was further revealed that a further sum of Rs. 57,237/- was also not disbursed by the writ petitioner and was kept in his custody. For non-deposit of the said sum of Rs. 57,237/- and Rs. 53,176/- and keeping the same in his personal custody the writ petitioner was charged for serious misconduct, breach of trust and failure to maintain proper standard and discipline and integrity and even to the duty un-becoming of a municipality employee. The writ petitioner replied to the said notice to show cause on 24th August, 1998. Being dissatisfied with the reply to show cause the writ petitioner was dismissed from service by an order dated 21st September, 1998 appearing at page No. 26 of the writ petition which has been impugned herein.
3. An appeal to the Chairman of the concerned municipality was also rejected by an unanimous resolution adopted by the councilors of the municipality.
4. The writ petitioner assailed the order of punishment on the ground that no disciplinary proceedings had ever been conducted by the municipality, giving adequate opportunity to the writ petitioner to defend himself.
5. It was contended by and on behalf of the respondent that since the writ petitioner by his letters dated 2nd July, 1998, 8th July, 1998, 15th July, 1998 and 24th August, 1998 admitted his guilt there was no necessity to conduct any disciplinary proceeding and as such the Municipality passed the appropriate order of punishment.
6. Mr. Bikash Ranjan Neogi, learned counsel appearing for the petitioner in support of his contention, relied on the following decisions :
(i) U.P. State Transport Corporation and Ors. v. Mahesh Kumar Mishra (2000, Vol. II, SLR, Page 435);
(ii) South Bengal State Transport Corporation v. Jahar Goswami (2001, Vol. I, SLR, Page 157);
(iii) Zila Sahakari Kendriya Bank Mariyadit v. Jagadish Chandra (2001, Vol. I, SLR, Page 37);
(iv) Sukehndu Bikash Tikader v. The Chairman, Nadia Gramin Bank and Ors., (2002, Vol. I, SLR, Page 459);
7. Referring to the aforesaid decisions Mr. Neogi submitted that the issue of non-disbursement or non-deposit was an admitted fact and as such no enquiry was called for to prove the said fact. However, the explanation given by the writ petitioner for such non-disbursement and/ or non-deposit should have been taken into account and an enquiry was required to be held to find out the veracity of the said explanation offered by the writ petitioner. No attempt was made by the municipality to find out as to whether the explanation was sufficient or not. Hence, the authority acted in a close mind while issuing the notice to show cause as well as while passing the order of punishment. Hence the order of punishment was liable to be quashed and set aside.
8. Mr. Bikash Ranjan Bhattacharjee, learned counsel appearing for the municipality, relied on the following decisions :-
(v) K.N. Tripathi v. State Bank of India and Ors. ;
(vi) State Bank of India v. Luther Kondhpan ;
(vii) Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and Anr. ;
(viii) Ranjit Kumar Dey Chowdhury v. The State of West Bengal and Ors. (1997, West Bengal Law Reporter [Call, Page 325);
(ix) Syndicate Bank v. B.S. Narayanan (1998, Volume I, Calcutta Law Journal, Page 66);
(x) Smt. Kamala v. Management of Yemmegundie Estate, Kodagii and Anr. (2001, Labour & Industrial Services, Page 775);
9. Mr. Bikash Ranjan Bhattacharjee, learned counsel appearing for the municipality, relying on the aforesaid decisions submitted that since the charge brought against the writ petitioner was unequivocally admitted by the writ petitioner in all correspondences made by him there was no need for an enquiry proceeding to be conducted to find out the veracity of the said charge. Mr. Bhattacharjee further submitted that non-deposit of the undisbursed fund of the municipality was a serious offence and no explanation had been put forward by the writ petitioner which could warrant consideration by the disciplinary authority. Since the offence was so serious in nature his continuance in service would amount to serious indiscipline amongst the employees of municipality and as such the order of dismissal from service was appropriate commensurate to the charge brought against him. Mr. Bhattacharjee further submitted that even, before me, no plausible explanation was put forward by the writ petitioner to the effect as to why the money was not deposited with the municipality. Hence the writ petitioner was not entitled to any relief and the writ petitioner deserved order of dismissal.
10. To decide this issue let me first deal with the decisions cited by the parties.
(i) U.P. State Transport Corporation and Ors. v. Mahesh Kumar Mishra (2000, Vol.11, SLR, Page 435); In this case a bus conductor was awarded punishment of the dismissal from service on the ground that on a surprise check he was found not properly charging the passengers appropriate bus fares. Both the disciplinary authority and the tribunal relied on the report of the Transport Inspector which was signed by the writ petitioner on the spot. Both the said authorities proceeded on the basis of that since the conductor did not protest about the said report while signing the same the said report must be taken as true and correct. High Court intervening at that stage reduced the punishment on the ground that since there were available evidence on the spot, the transport inspector should have examined the passengers to find out the truth. The Apex Court upheld the order of the High Court and dismissed the appeal filed by the respondent authority.
(ii) South Bengal State Transport Corporation v. Jahar Goswami (2001, Vol.1, SLR, Page 157): Paragraph 9 of this judgment has been relevant herein and is quoted below :-
"'Admission' as it well known must be considered in its entirety. An admission cannot be called out from considering portions of the show-cause. Annexure 'D' to the writ application which contains the purported admission the part of delinquent officer, thus, must be read as a whole. Did the delinquent officer admit his guilty? The answer to the said question must be rendered in the negative. The Appellants never considered the said show-cause as an admission of misconduct and/or admission of facts leading to his commission of misconduct. Once the disciplinary authority intended to initiate a departmental proceedings despite the show-cause filed by the writ petitioner, it was obligatory on his part to scrupulously follow the procedure laid down in the said Regulation. Admitted it failed to do so."
The Division Bench of this Court in this case held as appears from the paragraph quoted (supra) that the admission must be taken into account in its entirety.
(iii) Zila Sahakari Kendriya Bank Mariyadit v. Jagadish Chandra (2001, Vol. I, SLR, Page 37): Paragraph 6 and 7 of this Apex Court judgment have been relevant herein and is quoted below :
"In our view the order passed by the Assistant Registrar was correct. On facts it had been found that the Respondent No. 1 had embezzled certain monies. The monies were returned by him only after the show cause notice was issued to him. His termination was set aside only on technical grounds inasmuch as no inquiry was conducted. Under such circumstances the Assistant Registrar correctly did not award any back wages. In our view, on facts of this case, the order directing payment of back wages cannot be sustained.
Accordingly we maintain the order of reinstatement but set aside that portion of the order which directs payment of back wages."
(iv) Sukhendu Bikash Tikader v. The Chairman, Nadia Gramin Bank and Ors. (2002, Vol.1, SLR, Page 459): I do not find any application of this case herein and as such I do not wish to deliberate on the same.
(v) K.N. Tripathi v. State Bank of India and Ors. : In this case the Bank Manager was awarded punishment of dismissal from service without any proper enquiry being held. The Apex Court denied relief by examining the facts and circumstances by holding that there was no violation principles of natural justice. Paragraph 31 is relevant herein and is quoted below :
"Wade in his administrative Law, Fifth Edition at pages 472-475 has observed that it is not possible to lay down rigid rules as to when the principles of natural justice are to apply nor as to their scope and extent. Everything depends on the subject-matter, the application of principles of natural justice, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject matter of the case. In the application of the concept of fair play there must be real flexibility. There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter to be dealt with, and so forth."
(vi) State Bank of India v. Luther Kondhpan : Paragraph 3 of the Apex Court judgment is relevant herein and is quoted below :
"Learned counsel appearing for the appellant contended that the order of cancellation of certificate passed by the Tehsildar, Nowrangpur was part of the record of disciplinary proceedings and the respondent was apprised of the said order and the view taken by the High Court was erroneous. The record of the disciplinary proceedings is annexed with the record of the special leave petition and on its perusal we find that the respondent was given a copy of the order of cancellation of the certificate passed by the Tehsildar, Nowrangpur and be also signed in lieu of the receipt of the copy of the said order. In view of the fact that the petitioner was given a copy of the order of cancellation of certificate. the High Court was not justified in holding that the respondent was not confronted with the order of cancellation of certificate. Learned counsel appearing for the respondent then urged that the respondent was denied an opportunity of personal hearing before the disciplinary authority. We have perused the reply filed by the respondent to the show-cause notice. In the said reply it is nowhere stated that the respondent desires personal hearing. Under such circumstances the order of termination cannot be held to be vitiated on that account."
(vii) Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and Anr. : In this case an employee of the Bank being a habitual absentee was dismissed from service. The Apex Court upheld the order of punishment by holding that adequate opportunity had been given by the Bank and there was no violation of principle of natural justice.
(viii) Ranjit Kumar Dey Chowdhury v. The State of West Bengal & Ors. (1997, West Bengal Law Reporter, Page 325) : In the instant case although the delinquent admitted the charge there had been a proper disciplinary proceedings initiated against him. The disciplinary authority however did not assign any reason while awarding the punishment. I do not appreciate as to how this judgment would support the contention of the respondent.
In this case the Division Bench relied on Karunakar's case of the said judgment. The relevant portion of the said Division Bench judgment extracted from paragraph 14 thereof is quoted below :-
"The Apex Court held that the procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee and the violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed, except in cases where no notice, no opportunity and no bearing had been given."
The aforesaid quotation would rather support the case of the petitioner.
(ix) Syndicate Bank v. B.S. Narayanan (1998, Vol. I, Calcutta Law Journal, Page 66): In the instant case a particular charge was not discussed by the enquiry officer as the same was admitted by the delinquent. The Division Bench held that since the charge was admitted it was not necessary for the enquiry officer to discuss the same.
(ix) Smt. Kamala v. Management of Yemmegundie Estate, Kodagu and Anr. (2001, Labour & Industrial Services. Page 775) : In the instant ease the learned single Judge of the Karnataka High Court came to a conclusion that the workmen was not justified in questioning the dismissal on the ground of denial of reasonable opportunity of hearing. The learned single Judge considered the fact that the Labour Court had earlier considered in extenso and came to the right conclusion that the petitioner was not entitled to continue in the quarters and refusal to vacate amounted to continued misconduct. Based on the said finding the order of the disciplinary authority was held to be justifiable. This case does not support the contention of the respondent in the light of the facts and circumstances of this case.
Two propositions of law would evolve from analysis of the aforesaid decisions :
(i) Violation of natural justice has to be examined considering the facts and circumstances of a particular case as there is no rigid rule for the same.
(ii) If the delinquent accepts the charges brought against him and does not ask for any hearing the authority need not give hearing and if any hearing is not given, on that ground order of punishment cannot be vitiated.
11. Let me now examine the facts of the case in the light of the aforesaid proposition.
12. The writ petitioner was confronted with the allegation of non-disbursement and non-deposit. These two facts were admitted by the writ petitioner in all the correspondences consistently. Hence, there was no reason for holding any enquiry to prove the said fact and the authority was right in not initiating any enquiry proceeding for proving those two facts.
13. Matter does not rest there. Since the writ petitioner was asked to show cause as to why he committed such offence i.e. non-disbursement and non-deposit he had given some explanation. The authority should have attempted to cause an enquiry to find out the veracity of those explanations.
14. In this regard may I refer to the Apex Court decisions in U.P. State Transport Corporation Ltd. (supra). In the said case before the Apex Court the conductor was charged with an offence that he did not charge the passengers at the appropriate rate causing loss to the transport corporation. The said incident was detected by the transport inspector on spot check. Accordingly, he had prepared a report and got it counter signed by the delinquent. The disciplinary authority awarded punishment by proceeding on the basis of the said report itself. The Apex Court reduced the punishment by considering the said fact that the said transport inspector should have taken corroborative evidence from the passengers who were available on spot to find out the veracity of the charge to have the same proved beyond doubt.
15. In the instant case the writ petitioner gave explanation for non-disbursement. According to him there had been certain irregularity with regard to the claim made by the heirs and legal representatives of the deceased employee Rashmoni Hari. The reason for non-disbursement as given in the letter dated 2nd July, 1998 could not be brushed aside and the respondent authority should have verified the said fact by causing an enquiry to be made on that score.
16. After the show cause notice was served the writ petitioner returned the entire amount. He had tendered an apology and prayed for mercy. From the order of the disciplinary authority it would appear that neither his past service record was considered by the disciplinary authority nor there was any discussion as to why the writ petitioner should not be pardoned. In service jurisprudence dismissal of service is considered to be a capital punishment. In the Affidavit-in-Opposition filed by the municipality I do not find any assertion as to whether there had been any unpleasant occasion during the service tenure of the writ petitioner prior to the subject incident.
17. It is true that the charge brought against the writ petitioner was so grave it deserved appropriate punishment. Municipality at the same time should have considered the appeal made by the writ petitioner even after the order of dismissal was awarded. The writ petitioner was dismissed from service at the age of 47 years he must be having members of his family depending upon him.
18. The Apex Court also upheld the order of reinstatement without any back wages in the case of Zila Sahakari Kendriya Bank Mariyadit (supra) where the delinquent refunded the money embezzled by him after service of show cause notice. Considering the aforesaid facts and circumstances and considering the fact that there had been some explanation offered by the writ petitioner which were not considered by the municipality I modify the order of punishment to the effect that the writ petitioner would be treated to have retired compulsorily as on 21st September, 1998. He would be entitled to 25% of his wages as on that date to be calculated and paid to him taking into account his full service tenure that he could otherwise enjoy. He would also be entitled to other superannuatory benefits under the appropriate Rules of the municipality.
Writ petition is accordingly disposed of without any orders as to costs.
Urgent xerox certified copy will be given to the parties, if applied for.