Calcutta High Court
Brindaban Patra vs State Of West Bengal And Ors. on 7 September, 2004
Equivalent citations: (2005)1CALLT66(HC), 2004(4)CHN515, 2005(3)ESC1892
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
JUDGMENT Pranab Kumar Chattopadhyay, J.
1. The petitioner herein has challenged the order of termination from service issued by the Chairman, Maheshtala Municipality and subsequent decision of the Board of Councillors of the said Maheshtala Municipality rejecting the appeal preferred by the petitioner against the said order of termination.
2. The authorities of the Maheshtala Municipality have proceeded in the instant case against the petitioner in a most illegal and irregular manner as would appear from various steps and the decisions taken by the authorities of the said Maheshtala Municipality time to time in respect of the petitioner.
3. Initially, the petitioner was appointed as Job Assistant of Shyampur-II Gram Panchayat and subsequently after formation of Maheshtala Municipality, he was appointed as Lower Division Clerk/Sub-Centre Person.
4. On 5th June, 1998, Executive Officer, Maheshtala Municipality issued the first show cause notice to the petitioner alleging that a large amount of money to the tune of Rs. 1,48,548/- was received by the said petitioner during the period 1995 to 31st March, 1997 for schematic work but he failed to start and complete the same and also failed to refund the money in spite of several reminders. The petitioner, however, duly replied to the said show cause notice narrating the steps taken by him regarding submissions of adjustments of accounts and execution of the works.
5. Considering the said reply to the show cause notice submitted by the petitioner, authorities of the Maheshtala Municipality came to the conclusion that the said reply of the petitioner was totally unsatisfactory and untenable and accordingly, in exercise of the power conferred under Section 61(3) of the West Bengal Municipal Act, 1993 issued the order of suspension in respect of the petitioner and by virtue of the aforesaid order of suspension, petitioner was placed under suspension with effect from 1st September, 1998.
6. The competent authority of the Maheshtala Municipality formed an Enquiry Committee to enquire into the affairs of the petitioner in the matter of receiving advance money from the Municipality and non-submission of adjustment of accounts by the said petitioner. The report submitted by the said Enquiry Committee was ultimately placed in the meeting of the Board of Councillors of the Maheshtala Municipality held on 10th February, 1999 wherein the Board of Councillors adopted a resolution in respect of the petitioner for issuance of the second show cause notice.
7. In pursuance of the aforesaid decision of the Board of Councillors of the Maheshtala Municipality, the then Chairman of the said Municipality issued the second show cause notice to the petitioner on 4th May, 1999 directing him to show cause as to why he should not be dismissed from service.
8. The petitioner also replied to the said second show cause notice explaining his conduct by denying all the charges levelled against him and requested the Chairman to quash the entire proceedings and allow him to resume his duty.
9. Considering the aforesaid reply of the petitioner in answer to the second show cause notice, authorities of the Maheshtala Municipality directed the petitioner by the written communication dated 7th September, 1999 to appear before the same Enquiry Committee, already constituted, for fresh hearing in respect of the charges levelled against him and mentioned in the chargesheet which was annexed with the said written communication dated 7th September, 1999. Curiously enough, the articles of charges and the statement of imputation of misconduct were supplied to the petitioner by annexing copies thereof alongwith the aforesaid written communication dated 7th September, 1999 issued by the Chairman, Maheshtala Municipality.
10. The said letter dated 7th September, 1999 written by the Chairman of the Maheshtala Municipality to the petitioner herein is set out hereunder:
Ref: 5397/1/MM/12-P Date: 07.09.1999.
To
Sri Brindaban Patra, Gr. 'C' Staff and
Erstwhile Sub-Centre Person, Ward No. 13
Maheshtala Municipality
Nangi Gomo Para, Batanagar
South 24-Parganas.
Ref: His reply and prayer on the 2nd Show cause notice issued to him.
In reference to his reply dated 31.05.99 on the 2nd Show Cause Notice issued to him on 04.05.99 this is to inform him that the Municipal Authority has carefully considered his reply as well as the prayer he has placed before this office.
After careful consideration of his prayer it is ordered that he is allowed to appear before the same Inquiry Committee already constituted for a fresh hearing on the matter of charge against him. He is requested to appear personally before the Inquiry Committee on 16.09.99 without fail.
He is allowed to appear before the Inquiry Committee alongwith his legal adviser/pleader, if he thinks necessary at the hearing.
The Inquiry Committee is empowered to hold the fresh enquiry on the matter of Articles of charge and statement of imputation of misconduct framed against him.
Maheshtala Municipality Enclo:
Copy of the Annexure - I " - II " - III " - IV
11. Although the authority of the Maheshtala Municipality held the petitioner guilty and issued second show cause notice asking the said petitioner to show cause as to why he should not be dismissed from service but no chargesheet was issued to the said petitioner till then and only considering his reply to the said second show cause notice, the authorities of the Maheshtala Municipality decided to issue chargesheet and asked the petitioner to appear before the Enquiry Committee, already constituted, for fresh hearing in respect of the charges mentioned in the articles of charges. The aforesaid decision of the Municipality regarding issuance of second show cause notice to the petitioner even before issuance of the chargesheet is not only illegal but the same also confirms the biased attitude of the respondent authorities towards the petitioner and further establishes the fact that the said authorities of the Municipality prejudged the entire issue.
12. On receipt of the aforesaid written communication dated 7th September, 1999 alongwith the chargesheet, the petitioner informed the Chairman of the Maheshtala Municipality that no opportunity has been granted to the petitioner for submission of written statement in answer to the chargesheet and prayed for an opportunity to allow him to submit the written statement after inspection of the original documents. It has been submitted by the petitioner that no opportunity was granted for inspection of the documents and submission of written statement in spite of the aforesaid specific request.
13. Ultimately, pursuant to the resolution of the meeting of the Board of Councillors of the Municipality held on 24.11.99, petitioner was dismissed from service and the said dismissal order was issued under the seal and signature of the Chairman, Maheshtala Municipality on 3rd February, 2000.
14. The petitioner thereafter preferred an appeal against the said order of dismissal which was also rejected by the Board of Councillors and the said decision was communicated to the petitioner by the Chairman of the Maheshtala Municipality by the written communication dated 12th January, 2001.
15. Scrutinising the undisputed records it appears that the copy of the enquiry report was not supplied to the petitioner although the municipal authority namely, the Board of Councillors decided to dismiss the petitioner from his service with effect from 1st February, 2000 after considering the said report of the Enquiry Committee. The order of dismissal dated 3rd February, 2000 was formally issued by the Chairman, Maheshtala Municipality pursuant to the said decision of the Board of Councillors.
16. The petitioner also preferred an appeal against the said order of dismissal and the same was surprisingly, considered and dismissed by the said Board of Councillors of the Municipality. When the order of dismissal was passed by the Board of Councillors of the Municipality then the appeal preferred by the petitioner from the said order of dismissal can under no circumstances be taken into consideration by the same authority, namely, the Board of Councillors of the Municipality.
17. In the dismissal order it has been specifically mentioned as hereunder:
".............................as per decision of the Board of Councillors of the Municipality according to the unanimous resolution of the meeting of that Board held on 24.11.99 it is declared that the statements and evidence put forward by said Sri Brindaban Patra are absolutely unsatisfactory, untenable and unacceptable to the authority of this Municipality.
Hence, it is ordered that the service of Sri Brindaban Patra, Group 'C' staff who is under suspension since 01.09.98 is no longer required with effect from 01.02.2000..................................."
18. On 29th November, 2000, the appeal preferred by the petitioner from the aforesaid order of dismissal, was considered and disposed of by the same Board of Councillors of the Maheshtala Municipality as would appear from the order communicated in this regard by the Chairman of the said Municipality on 12lh January, 2001. The said order dated 12th January, 2001 is quoted hereunder:
"In connection with the W.P. No. 10861(W) of 2000 (Sri Brindaban Patra vs. Maheshtala Municipality) it is ordered that in obedience to the order of the Hon'ble Justice Mr. Prabir Kumar Samanta, Calcutta High Court issued on 17.07.2000 on the matter of appeal preferred by the writ petitioner against the order of dismissal of his service has been disposed of by giving an opportunity of hearing to the said writ petitioner by the Board of Councillors in its meeting held on 29.11.2000. The copy of the said order of the Hon'ble Justice was received by this office on 10.08.2000.
The said writ petitioner, Sri Brindaban Patra alongwith his legal advisers named Sri. D. K. Mukherjee and Sri R. Mukherjee were present in the said hearing on the date and placed their statements before the Councillors of the Board present.
Having heard the writ petitioner and his legal advisers, the Board of Councillors present in the meeting unanimously resolved to dispose of the appeal that the previous decision of the Board of Councillors on the matter shall prevail upon and remain unchanged.
Chairman Maheshtala Municipality"
19. The respondent authorities admittedly did not supply the copy of the enquiry report to the petitioner and the comments of the petitioner on the said enquiry report was also not available before the disciplinary authority. However, the said disciplinary authority ignoring the aforesaid factors regarding non-supply of the enquiry report to the petitioner and in absence of the comments of the petitioner on the said enquiry report decided to punish the petitioner and issued the order of dismissal in a most illegal and irregular manner.
20. Undisputedly, the disciplinary authority, in the present case, has taken a decision in respect of the chargesheeted employee without giving any opportunity to submit a representation on the enquiry report although on the basis of the said enquiry report, disciplinary authority decided to punish the petitioner and ultimately issued the impugned order of dismissal. Therefore, in my view, gross miscarriage of justice has been caused in the present case by non-observance of the principles of natural justice by the disciplinary authority.
21. From the order of dismissal dated 3rd February, 2000, it is clear that the said order of dismissal was passed as per the decision of the Board of Councillors of the Municipality held on 24"' November, 1999 and as such the appeal preferred by the petitioner could not be decided by the said Board of Councillors as the appellate authority. In the present case, right of the petitioner to prefer an appeal from the order of dismissal passed by the disciplinary authority has been virtually denied as the order of dismissal was passed by the Board of Councillors of the Municipality and the appeal preferred by the petitioner, therefore, cannot be decided in absence of any other superior authority in the said Municipality.
22. Unfortunately, in the present case, the same authority, namely, the Board of Councillors in a most illegal and high-handed manner decided the appeal preferred by the petitioner in clear violation of the principles of natural justice as the said Board of Councillors of the Municipality passed the order of punishment and therefore, cannot decide the appeal preferred from the said order.
23. It has been repeatedly contended on behalf of the respondent municipality that the petitioner herein has admitted his guilt and referred to certain documents in this regard. On examination of those documents, I find that the petitioner never admitted his guilt. Admittedly, the amount was advanced to the petitioner for execution of certain works of the municipality through some agencies and/or contractors and the said petitioner was supposed to give detailed accounts in respect of the said money advanced to him.
24. Petitioner never denied the fact regarding the advance payment of money to him but at the same time he has repeatedly submitted before various authorities of the municipality that a considerable portion of the said money has been utilised for the purpose of execution of various works for which the same was advanced to him. He prayed for some time for submission of detailed accounts with supporting vouchers and/or receipts.
25. If the petitioner fails to submit proper accounts with supporting vouchers and/or receipts then the municipal authority can direct the petitioner to refund the money which has not been properly accounted for and as a matter of fact the municipality asked the petitioner to refund the money advanced to him although according to the petitioner, several documents submitted before the municipality showing adjustment and/or utlisation of the amount received by him from the said municipality was not considered by the concerned respondent.
26. The petitioner cannot deny his responsibility to refund the amount already taken in advance from the said municipality unless he can submit proper accounts showing the adjustments after spending the said amount or any part thereof. The petitioner, in the present case, has therefore, rightly submitted before the Executive Officer in his written representation dated 16th April, 1998 to the following effect:
"If I fail to submit the abovenoted adjustment within 15 days then you will take necessary action."
The aforesaid submission of the petitioner cannot be regarded as the admission of guilt by any stretch of imagination.
27. The learned Counsel of the respondent municipality has cited the following decisions on the point of admission of guilt by a chargesheeted employee:
1) , Channabasappa BasappaHappali vs. State of Mysore.
2) 1992 Lab. IC 705, Hindustan Aeronautics Limited, Bangalore vs. K. Shanmugam & Ors.
However, in the facts of the present case, the aforesaid decisions are not at all applicable, as I have specifically held hereinbefore that the petitioner herein never admitted his guilt.
28. The learned Advocate of the respondents also referred to and relied upon the following decisions:
1. , Nand Kishore Prasad vs. State of Bihar & Ors.
2. AIR 1999 SC 2047, Bank of India & Anr. vs. Degala Suryanarayana.
3. , Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution vs. Educational, Appellate Tribunal and Anr.
In my opinion, the aforesaid decisions are not at all applicable in the facts of the present case.
29. The petitioner appeared in person before this Court and made his submissions.
30. For the reasons mentioned hereinbefore, the steps taken by the authorities of the Maheshtala Municipality against the petitioner cannot be approved and the order of dismissal dated 3rd February, 2000 and the subsequent order dated 12th January, 2001 dismissing the appeal preferred by the petitioner therefore, cannot be sustained and the same are, thus, quashed.
Accordingly, I direct as follows:
1) The petitioner should be reinstated in service immediately and his continuity of service and seniority should also be maintained.
2) The petitioner should also be paid a sum of Rs. 50,000/- as compensation in lieu of his claim for arrears of salary.
31. This writ petition is thus allowed. As I have already directed for payment of compensation, there will be no order as to costs.
32. Urgent xerox certified copy of this judgment, if applied for, may be handed over to the learned Advocate of the parties upon compliance with usual formalities.