Calcutta High Court (Appellete Side)
For The vs State Of West Bengal & on 11 April, 2011
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
3. 11.4.2011 A.S.T.539 of 2009
as With
A.S.T.A.78 of 2009.
Mr. Tapabrata Chakraborty,
Mr. Partha Sarkar.
...For the Appellant/
Petitioner.
Mr. Shyama Prasad Purkait,
Mr. Jewel Biswas.
...For the Respondents.
Certified copy of the impugned order under appeal passed by the learned single Judge has been produced before this Court today. The same be kept on record.
Re: A.S.T.A.78 of 2009.
This application has been filed in connection with the appeal preferred from the order dated 17th September, 2009 whereby a learned Judge of this Court refused to pass any interim order in the writ petitions filed by the appellant herein.
The appellant/petitioner herein filed the writ petition being W.P.14372 (W) of 2009 challenging the order of suspension dated 13th July, 2009 issued by the respondent No.2 viz., the Chairman, Diamond Harbour Municipality and the subsequent writ petition being W.P.16467 (W) of 2009 was filed challenging the show cause notice dated 11th August, 2009 issued by the respondent No.5 herein. The order of suspension issued to the appellant is set out hereunder:
" Office of the Diamond Harbour Municipality Diamond Harbour, South 24-Paraganas Ref.No.Personal/A-347/D.H.M. Dt.13.7.09. To Haygrib Naiya, Employee (Clerk), Diamond Harbour Municipality, South 24 Paraganas.
In view of resolution adopted in the meeting of the Board of Councillors on 04.07.2009 and in view of the incident held on 30.06.2009 where you were directly involved and being insisted by you a serious situation was prevailed in office premises. Hence you are hereby suspended from service pending drawing up disciplinary proceeding which will be taken place as per service rules.
Such suspension order will effect on and from the date of receive of the above notice.
Sd/- Illegible. 13.7.09 Chairman, Diamond Harbour Municipality"
Although the learned Single Judge refused to pass any interim order and subsequently the Division of this Court also refused to pass interim order in the matter, no disciplinary proceeding has yet been initiated against the appellant/petitioner by issuing any charge sheet.
Mr. Tapabrata Chakraborty, learned Counsel representing the appellant/petitioner submits that the aforesaid order of suspension cannot continue for an indefinite period specially when no disciplinary proceeding has yet been initiated against the appellant/petitioner.
Mr. Chakraborty referred to and relied on a decision of the Division Bench of this Court in the case of Akhilendu Ghosh Vs. State of West Bengal & Ors., reported in 2001 (3) CHN 688. In the aforesaid decision Justice S. B. Sinha (as His Lordship then was) speaking for the Division Bench observed:
".................In any event, it is now a well settled principle of law that a person cannot be allowed to be kept under suspension for unduly a long period upon payment of subsistence allowance and that too without initiating any departmental proceeding in that regard........"
Mr. Chakraborty further submits that the Chairman, Diamond Harbour Municipality being the disciplinary authority also pre-judged the issue even before initiation of the disciplinary proceeding by expressing an opinion in respect of the appellant/petitioner herein and specifically mentioning the same in the impugned order of suspension dated 13.7.2009 as hereunder:
".....and in view of the incident held on 30.06.2009 where you were directly involved and being insisted by you a serious situation was prevailed in office premises..."
The learned Counsel representing the Municipal authorities, however, submits that the appellant/petitioner herein did not reply to the show cause notice issued by the disciplinary authority.
Failure on the part of the appellant/petitioner to reply to the show cause notice cannot be a valid ground for not initiating the disciplinary proceeding by the disciplinary authority. The disciplinary authority could wait for a reasonable time for submission of the reply to the show cause notice by the appellant/petitioner herein but the disciplinary authority was in no way prevented from initiating any disciplinary proceeding against the appellant/petitioner in the instant case specially when the learned Single Judge as well as the Division Bench of this Court refused to pass any interim order restraining the disciplinary authority from proceeding with the disciplinary proceeding in any manner.
No employee can be kept under suspension for an indefinite period which has been specifically held by the Division Bench of this Court in the case of Akhilendu Ghosh (Supra).
Since no disciplinary proceeding has yet been initiated against the appellant/petitioner by issuing the charge-sheet, respondent authorities cannot be allowed to keep the petitioner under suspension for an indefinite period. The Supreme Court in the case of K. Sukhendar Reddy vs. State of A.P. and Another reported in (1999) 6 SCC 257 specifically observed:
"7.................We do not know how long it will take to complete the investigation. That being so, the officer of the rank of the appellant, against whom it has now come out that the disciplinary proceedings are not contemplated, cannot be kept under suspension for an indefinite period........"
Following the aforesaid decision of the Division Bench of this Court, we also cannot allow the respondent authorities to keep the appellant/petitioner under suspension any longer specially when no disciplinary proceeding has yet been initiated by the disciplinary authority.
Furthermore, it may be mentioned that the Chairman, Diamond Harbour Municipality being the disciplinary authority also pre-judged the issue in respect of the appellant/petitioner upon specifically mentioning in the order of suspension that the appellant/petitioner herein was directly involved in connection with the incident held on 30th June, 2009 and also insisted for creating a serious situation in the office premises.
The respondent No. 5 herein also issued the show-cause notice dated 11th August, 2009 to the petitioner herein wherein specific findings in respect of the conduct of the appellant/petitioner were recorded even before holding any enquiry and issuance of the charge-sheet. The appellant/petitioner cannot be held guilty before holding the enquiry into the alleged offence or charge.
In the present case, even before issuance of the charge-sheet respondent authorities held the petitioner guilty by expressing biased opinion which has been specifically mentioned in the order of suspension dated 13th July, 2009 by the respondent No. 2. The prejudged opinion and biased attitude of the respondent No. 5 would also appear from the show- cause notice dated 11th August, 2009 issued to the petitioner since the said respondent No. 5 recorded specific findings in respect of the conduct of the petitioner in the aforesaid show-cause notice even before conducting any enquiry.
This Court in the case of Subrata Bhattacharya vs. Bharat Process & Mechanical Engineers & Ors. reported in 1984 (II) CHN 185 strongly deprecated the conduct of the authorities for prejudging the issue even at the stage of framing of charge. The relevant extracts from the aforesaid decision are set out hereunder:
"13. The authorities have pre-judged the issue even at the stage of framing of charge. The language used in the charge sheet cannot simpliciter be termed to be unhappily worded. It shows a state of mind, which is opposed to justice, equiry and fairplay.
14. In that view of the matter the memorandum being charge sheet and the order of suspension, dated 14th May, 1984 being GMW/CS/84/HKC is quashed."
The respondent No. 5 herein by issuing the impugned show-cause notice apprised the appellant/petitioner about the definite conclusions in respect of his alleged guilt. On examination of the impugned show-cause notice and specially considering the language used in the said show-cause notice we find that the respondent No. 5 herein prejudged the alleged guilt of the appellant even at the time of issuing the show-cause notice which cannot be approved by this court. The Hon'ble Supreme Court while considering similar issue in the case of Oryx Fisheries Private Limited vs. Union of India and Ors. reported in (2010) 13 SCC 427 observed:
"27. It is no doubt true that at the stage of show-cause, the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. It is obvious that at that stage the authority issuing the charge-sheet, cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in this instant case, the entire proceeding initiated by the show-cause notice gets vitiated by unfairness and bias and the subsequent proceedings become an idle ceremony.
* * * * * *
31. If on a reasonable reading of a show- cause notice a person of ordinary prudence gets the feeling that his reply to the show cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show cause notice does not commence a fair procedure specially when it is issued in a quasi-judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence.
32. Therefore, while issuing a show-cause notice, the authorities must take care to manifestly keep an open mind as they are to act fairly in adjudging the guilt or otherwise of the person proceeded against and specially when he has the power to take a punitive step against the person after giving him a show-cause notice.
33. The principle that justice must not only be done but it must eminently appear to be done as well is equally applicable to quasi-judicial proceeding if such a proceeding has to inspire confidence in the mind of those who are subject to it.
34. A somewhat similar observation was made by this Court in Kumaon Mondal Vikas Nigam Ltd. v. Girja Shankar Pant. In that case, this Court was dealing with a show-cause notice-cum-charge-sheet issued to an employee. While dealing with the same, this Court in para 25 (SCC p. 198 of the Report) by referring to the language in the show-cause notice observed as follows:
'25. Upon consideration of the language in the show-cause notice-cum-charge-sheet, it has been very strongly contended that it is clear that the officer concerned has a mindset even at the stage of framing of charges and we also do find some justification in such a submission since the chain is otherwise complete."
35. Going by the aforesaid test any man of ordinary prudence would come to a conclusion that in the instant case the alleged guilt of the appellant has been prejudged at the stage of show-cause notice itself."
Upon considering the language used in the show-cause notice dated 11th August, 2009 issued to the appellant/petitioner by the respondent No. 5 and also taking note of the specific findings of the respondent No. 2 in respect of the appellant/petitioner as recorded in the impugned order of suspension dated 13th July, 2009 we are satisfied that the respondent authorities particularly the respondent Nos. 2 and 5 had a mindset even before issuance of the charge- sheet to the petitioner. The respondent authorities herein on account of their closed mind and biased attitude towards the appellant herein had violated the principles of natural justice.
For the aforementioned reasons, we cannot permit the respondent authorities herein to take any step against the appellant/petitioner on the basis of the impugned show-cause notice dated 11th August, 2009 arising out of the alleged incident dated 30th June, 2009, in view of their closed mind and biased attitude towards the appellant/petitioner.
In the aforesaid circumstances, the order of suspension dated 13th July, 2009 issued against the appellant/petitioner is liable to be quashed and the same is accordingly quashed. The respondents are also restrained from taking any step and/or further step on the basis of or pursuant to show cause notice dated 11th August, 2009 against the appellant herein in any manner whatsoever.
The respondent authorities particularly the respondent Nos.2, 3 and 5 are directed to allow the appellant/petitioner to forthwith resume his duties and pay all admissible salaries and allowances regularly including the arrears with effect from the date of suspension upon adjusting the subsistence allowance already paid to the said appellant/petitioner.
This application thus stands disposed of. In view of the aforesaid order, no purpose will be served in keeping the appeal as well as the writ petitions pending. Therefore, both the appeal and the writ petitions are treated as on day's list and disposed of accordingly.
In the facts of the present case, there will be, however, no order as to costs.
Urgent xerox certified copy of this order, if applied for, shall be given to the appearing parties, as early as possible.
(Pranab Kumar Chattopadhyay, J.) (Mrinal Kanti Sinha, J.)