Calcutta High Court
Ranjit Kumar De Chowdhury vs State Of West Bengal And Ors. on 4 July, 1996
Equivalent citations: I(1998)DMC450
Author: Satyabrata Sinha
Bench: Satyabrata Sinha
JUDGMENT Satyabrata Sinha, J.
1. This appeal is directed against a judgment and order dated 2.5.1983 passed by C.K. Banerjee, J. in C.R. No. 3878 (W) of 1983 whereby and where under the said learned Judge rejected the writ application filed by the petitioner without assigning any reasons whatsoever.
2. The fact of the matter lies in a very narrow compass.
3. The appellant at the material time was a constable attached to DAP, Cooch Behar. He was served with a charge-sheet dated 22.4.1980 by the respondent No. 2 who admittedly is the Disciplinary Authority alleging gross misconduct unbecoming of a Police Officer as he during the life time of his wife Smt. Nilima De Chowdhury contacted another marriage with Smt. Sefali De Chowdhury in violation of Rule 30 of the West Bengal Government Servant Conduct Rules, 1959.
4. The petitioner was directed to submit his defence to the Enquiry Officer and he submitted his written defence on 7.5.1980 although he pleaded not guilty of the charges but stated that he had married for the second time with the written consent of his first wife which amounts to an admission as regards the allegations made in the charge-sheet. Despite such admission, a disciplinary proceeding was initiated against him and the Enquiry Officer although, held the appellant guilty of the misconduct observed as follows :
"In the absence of any codified provision that the breach of West Bengal Government's Rule is liable for disciplinary action, I feel that no disciplinary action in the nature of punishment can be taken against the delinquent."
5. The said report dated 15.6.1980 is contained in Annexure 'C' to the writ application. However the respondent No. 2 did not agree with the aforementioned finding of the Enquiry Officer and gave an opportunity of hearing to the appellant personally on 23.2.1981. The appellant did not make any submission other than that what he had stated in the written defence.
6. The respondent No. 2 differed with the recommendation of the Enquiry Officer on the ground that it became a punishable offence under the Indian Penal Code and the petitioner contravened Section 5(4) of the West Bengal Government Services (Duties, Rights and Obligations of the Government Employees) Rules, 1980. While doing so, he also obtained the opinion of the Government Pleader and the Public Prosecutor. He, therefore, directed him to show cause as to why he should not be dismissed from service. Upon such cause being shown, the respondent No. 2 in terms of his order dated 30.4.1981 as contained in Annexure 'E' to the writ application dismissed the appellant from service with effect from 30th April, 1981.
7. The learned Counsel for the appellant has raised two contentions in support of this appeal. The learned Counsel firstly submitted that the learned trial Judge committed an error in dismissing the writ application without assigning any reason. In support of his aforementioned contention reliance has been placed on the case of V.V. Saraf v. New Education Institute, . The learned Counsel next contended that the respondent No. 2 committed illegality in holding the petitioner guilty of violation of Rule 5(4) of the West Bengal Government Services (Duties, Rights and Obligations of the Government Employees) Rules, 1980 although the said Rules have no application and in any event, the W.B. Servants Conduct Rule having been replaced by the said Rules the entire proceeding is vitiated in law.
8. There cannot be any doubt whatsoever that this Court while dismissing the writ application in limine is bound to assign some reasons in support of the order so as to enable the Appeal Court to know the mind of the Court as well as the reasons and finding in deciding the said writ applications. However we are of the view that as the matter has been argued before us in details, the writ application need not be remitted back to the learned trial Judge.
9. As noticed hereinbefore, the appellant in his written statement categorically admitted the misconduct committed by him. His only defence was that he married Smt. Sefali De Chowdhury with the written consent of his first wife. It is not in dispute that in terms of the provision of Section 494 of IPC, Bigamy is a penal offence as well as in terms of the provision of the W.B. Government Servant Conduct Rules no employee is permitted to commit misconduct or a penal offence with the consent of any other person. In fact keeping in view the categorical admission made by the appellant it was not at all necessary for the Disciplinary Authority to hold any disciplinary proceeding at all. Despite the same, disciplinary proceeding was initiated. It is now well-known that a fact admitted need not be proved.
10. The other question raised in this appeal is as to whether the petitioner could be punished. It is not disputed that the petitioner was charge-sheeted for commission of misconduct of Bigamy. The said charge-sheet was served on the appellant on 22.4.1980. The petitioner was sought to be punished for contravention of Section 5(4) of the W.B. Government Services (Duties, Rights and Obligations of the Government Employees) Rules, 1980.
11. The said Rule came into force with effect from 1st June, 1980 and thus the incharge-sheet having been served upon the appellant earlier thereto, the misconduct committed by the petitioner would still be governed and the enquiry would continue in terms of the West Bengal Government Servant Conduct Rules. There appears to be some dispute as to whether the said Rule, in-view of the proviso appended to Rule (2) the same applies to the Police Personnel or not. However admittedly such an action would be saved under the saving clause as contained in the said Rules.
12. The submission of the learned Counsel, however, is that the appellant having been charged for violation of the West Bengal Government Servants Conduct Rules could not have been punished under the said Rules. In our opinion, the said submission has no force, inasmuch as it is now well-known that non-mentioning or wrong mentioning of a provision of law would not take away the jurisdiction of the authority, if he has power under any of the provisions mentioned therein. Reference in this connection may be made to the case . It may be noticed that the Supreme Court recently in the case of State Bank of Patiala v. S.K. Shanna, , has held that the principles of natural justice should be viewed from the angle as to whether the delinquent employee was prejudiced or not.
13. The Supreme Court upon reviewing a large number of decisions including the decision of the Privy Council in the case of Calvin v. Carr, reported in 1980 AC 574, held that even if principle of natural justice has not been complied with by the authority, the same would not be void.
14. The Apex Court referred to a decision of Sabyasachi Mukharji, J. (as His Lordship then was) in the case of K.L. Tripathi v. State Bank of India, , wherein the Apex Court held that the principles of natural justice are not required to be complied with where the delinquent does not dispute the fact in issue. The Supreme Court also considered its earlier decision in the case of Managing Director, ECIL v. B. Karunakar, , and a large number of other decisions. 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 hearing had been given. In the instant case, as noticed hereinbefore, the appellant had been given an opportunity of being heard. In view of the fact that he had admitted his guilt, in our opinion, the appellant was not prejudiced at all by wrong mentioning or non-mentioning of section particularly in view of the fact that the respondent No. 2 Was although not obliged to but still granted a further opportunity of hearing to the appellant. It is now well known that issuance of a writ of certiorari is a discretionary one. This Court will not issue any writ of certiorari only because it is lawful to do so. A writ of certiorari should be issued where a person is prejudiced by reason of an order passed without jurisdiction. In the instant case, the respondent No. 2 did not lack inherent jurisdiction. He, according to the learned Counsel for the appellant himself had mentioned a wrong provision which in our opinion, in the order of dismissal he was not even required to do so. Such a wrong mentioning of the provision of law, in our opinion, has not prejudiced the appellant in any manner whatsoever.
15. Keeping in view the facts and circumstances of this case we are of the opinion that no case had been made out for interference with the judgment under appeal.
16. This appeal is therefore, dismissed, with the aforementioned observations.
17. There will however, be no order as to costs.