Calcutta High Court
Smt. Kusum Roy & Ors vs The Calcutta Municipal Corporation & ... on 15 June, 2015
Author: Debangsu Basak
Bench: Debangsu Basak
W.P No. 1358 of 2000
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Original Side
Smt. Kusum Roy & Ors.
Vs.
The Calcutta Municipal Corporation & Ors.
For the Petitioners : Mr. Swapan Kr. Dutta, Advocate
Mr. Dipankar Das Gupta, Advocate
For the Respondents : Mr. Pranab Kumar Dutta, Sr. Advocate
Mr. Swapan Kr. Debnath, Advocate Hearing concluded on : June 02, 2015 Judgment on : June 15, 2015 DEBANGSU BASAK, J.:-
An employee of the Kolkata Municipal Corporation was awarded a punishment by an Order dated February 24, 2000 passed by the Municipal Commissioner. Such order awarding punishment is under challenge. The original writ petitioner has died during the pendency of the writ petition. In place and stead of the original writ petitioner his heirs and legal representatives have been substituted.
The first ground of challenge to the impugned order is that an authority not recognized by law has passed the order impugned. The impugned order has been passed by the Municipal Commissioner. The Joint Municipal Commissioner is the authority under Section 18 of the Kolkata Municipal Corporation Act, 1980 to pass an order in the nature of the order impugned. Consequently, the order impugned has been passed without jurisdiction. Moreover, the Municipal Commissioner having passed the order impugned, the appellate authority envisaged under Section 21(4)(c) of the Kolkata Municipal Corporation Act, 1980 is no longer available to the writ petitioner. The appellate authority against an order of the nature in the order impugned, is the Municipal Commissioner as stipulated under Section 21(4)(c) of the Act of 1980. The order impugned, therefore, is without jurisdiction and is in violation of Sections 18 and 21 of the Act of 1980.
The original writ petitioner had filed a writ petition in respect of the disciplinary proceedings. It is contended on behalf of the writ petitioners that, in such writ petition the High Court by its Order dated December 20, 1999 had directed the disciplinary authority to consider the representation of the writ petitioner. The same not being complied with, a contempt petition was filed which was disposed of by an Order dated April 28, 2000. It is contended that, the representation of the writ petitioner was not considered by the disciplinary authority. Referring to the report of the Enquiry Officer it is submitted on behalf of the writ petitioners that, the Enquiry Officer had recommended punishment and has therefore travelled beyond its authority. In support of such contention reliance has been placed on 2010 Volume 5 Supreme Court Cases page 349 (Union of India & Ors. v. Alok Kumar). Referring to the Circular promoting the original writ petitioner it is contended on behalf of the writ petitioner that, the Corporation authorities had condoned the alleged misconduct by reason of grant of such promotion.
The original writ petitioner had retired on July 31, 2000. The Corporation authorities could not have proceeded with the disciplinary proceedings after retirement. In support of such contention reliance has been placed on All India Reporter 1999 Supreme Court page 1841 (Bhagirathi Jena v. Board of Directors, O.S.F.C & Ors.) and 1993 Volume 1 Calcutta Law Journal page 371 (Mrinal Kanti Chakraborty v. State of West Bengal & Ors.).
It is contended on behalf of the writ petitioners that, the charges in the charge sheet do not constitute misconduct. The two articles of charges are on negligence. A charge of negligence without ill motive does not constitute misconduct and in support of such contention reliance has been placed on 1979 Volume 2 Supreme Court Cases page 289 (Union of India & Ors. v. J. Ahmed).
The decision making process of the departmental proceedings is also assailed. It is contended that, the Enquiry Officer had found the original writ petitioner guilty of a charge which was not framed against the original writ petitioner. The Enquiry Officer was biased against the original writ petitioner. An allegation of biasness was made against the Enquiry Officer in the previous writ petition. The Enquiry Officer did not contradict such allegation by using an affidavit. In fact he did not file any affidavit at all.
It is contended that the original writ petitioner was denied copies of the day to day minutes of the proceedings as well as the copy of the deposition of the witness. The original writ petitioner had requested for such documents in writing as would appear from the letter dated December 7, 1998 which was duly received by the authorities. In spite thereof the documents asked for were not made over to the original writ petitioner. This fact has not been denied in the affidavit in opposition filed by the respondent authorities.
Referring to All India Reporter 1970 Supreme Court page 2086 (The State of Punjab v. Dewan Chuni Lal) it is submitted that, the person who had allegedly received the illegal gratification of Rs.1,000/- has not been produced in evidence. This incident is claimed to have happened by a person whose evidence has no value.
The writ petition is opposed on behalf of the Corporation authorities. A Circular dated February 1, 2002 has been relied upon in support of the proposition that, the original writ petitioner was not denied an appellate authority in terms of Section 21 of the Kolkata Municipal Corporation Act, 1980. The Mayor was notified to be the appellate authority by such Circular.
On the aspect of grant of promotion it is contended that, the promotion granted to the original writ petitioner was subject to the result of the pendency first writ petition. Therefore it could not be alleged that by virtue of such promotion being granted, the Corporation authorities had condoned the misconduct of the writ petitioner.
On the aspect of non-receipt of the copy of the day to day minutes and copy of the deposition of the witnesses it is submitted on behalf of the Corporation authorities that, the original writ petitioner has to demonstrate that the writ petitioner has suffered real prejudice for him to be entitled any relief on such account. In support of such contention reliance has been placed on 2009 Volume 13 Supreme Court Cases page 102 (Union of India & Ors. v. Bishamber Das Dogra), 2012 Volume 2 Supreme Court Cases page 641 (Burdwan Central Cooperative Bank Limited & Anr. v. Asim Chatterjee & Ors.), 2003 Volume 4 Supreme Court Cases page 557 (Canara Bank & Ors. v. Debasis Das & Ors.), 2002 Volume 2 Supreme Court Cases page 290 (Amar Nath Chowdhury v. Braithwaite and Co. Ltd. & Ors.). According to the Corporation authorities, the original writ petitioner had neither suffered any prejudice by such conduct of the Corporation and disciplinary authorities nor has the original writ petitioner pleaded or established the same.
I have considered the rival contentions of the parties and the materials made available on record.
The original writ petitioner was an employee of the Kolkata Municipal Corporation. He was charged with alleged misconduct in his capacity as Inspector, Licence Department, Kolkata Municipal Corporation. Two articles of charges were framed against him. It is alleged against the original writ petitioner that his conduct in the discharge of his duties had allegedly caused a large monetary loss to the Corporation. The original writ petitioner had submitted a written statement in his defence and had requested hearing in person duly assisted by a professional lawyer.
The Corporation authorities had appointed an Enquiry Officer on December 9, 1997. The Enquiry Officer had held an enquiry in which two witnesses were examined and cross-examined. He had submitted his report dated September 25, 1998 finding that the two charges framed against the original writ petitioner stood established. The Enquiry Officer had proceeded to recommend that the original writ petitioner be punished in his inquiry report. The Enquiry Officer, however, did not specify any quantum of punishment or the nature of it.
The original writ petitioner by his letter dated December 7, 1998 has complained that he has not been made over copies of the day to day minutes of the proceedings as well as the depositions of the two witnesses before the Enquiry Officer. This letter dated December 7, 1998 has been duly received on behalf of the Corporation authorities. The original writ petitioner under cover of his letter dated December 28, 1998 submitted his representation on the findings of the Enquiry Officer describing the same to be ad hoc in absence of the requisite documents requested for. Claiming that the disciplinary authority did not consider such representation, the writ petitioner had filed a writ petition being W.P. No. 2219 of 1999. Such writ petition was disposed of by an Order dated December 20, 1999 directing the disciplinary authority to consider the representation in accordance with law within a period of eight weeks from the date of communication of the order. The original writ petitioner had complained that such representation had not been considered by the disciplinary authority. The original writ petitioner had filed a contempt petition on the basis of such complaint which was disposed of by an Order dated April 28, 2000. It is recorded in the Order dated April 28, 2000 that the representation had been considered by the Corporation authorities. The Order dated April 28, 2000 gives liberty to the original writ petitioner to challenge the final order passed by the disciplinary authority. Subsequent to the receipt of the final order of the disciplinary authority which is impugned herein, the original writ petitioner has filed the present writ petition. During the pendency of the writ petition, the original writ petitioner having died, his heirs and legal representatives had been brought on record by way of substitution.
The Municipal Commissioner claiming to be the disciplinary authority has passed the impugned Order dated February 24, 2000. This action of the authorities is questioned on the ground of lack of jurisdiction. Section 18 of the Kolkata Municipal Corporation Act, 1980 specifies the appointing authorities of the different categories of the officers and employees and Section 21 thereof deals with the control discipline and conduct of the officers and employees of the Kolkata Municipal Corporation. The writ petitioner in the present case is considered as a category 'B' employee. In terms of Section of Section 18(b) of the Act of 1980 the appointing authority in respect of the original writ petitioner as a category 'B' employee is the Joint Municipal Commissioner. Section 21(3) of the Act of 1980 allows the Corporation authorities to award punishment for any breach of departmental rules or discipline or for negligence of duties or for other misconduct. Under Section 21(3) such punishment has to be awarded by the authority by whom such officer or employee has been appointed. In terms of Section 21(3) of the Act of 1980 the disciplinary authority of the original writ petitioner is, therefore, the Joint Municipal Commissioner. Section 21(4) of the Act of 1980 allows an appeal against an order passed under sub-section (3) of section 21 to lie before the Municipal Commissioner in the case of an officer or employee holding a category 'B' post. The Appellate authority in terms of Section 21(4) for the original writ petitioner is the Municipal Commissioner.
In the present case the Municipal Commissioner has acted as the disciplinary authority. The Municipal Commissioner is not the disciplinary authority for the original writ petitioner in terms of Section 21(3) of the Act of 1980. This conduct of the authorities is sought to be justified on three counts. Firstly, it is contended on behalf of the Corporation authorities that, by virtue of the Circular dated February 1, 2002 the original writ petitioner has not been denied an appellate authority as such Circular has provided that an appeal from an order passed by the Municipal Commissioner in the disciplinary proceedings could be made to the Mayor-in-Council. Secondly, the Municipal Commissioner being higher in rank than the Joint Municipal Commissioner could have discharged all functions that Joint Municipal Commissioner have. Thirdly, due to the time constraint of the Order dated December 20, 1999 and since a Joint Municipal Commissioner was not available with the Corporation authorities, the Municipal Commissioner had considered the representation and passed his reasoned order awarding punishment.
The Circular dated February 1, 2002 is subsequent to the passing off the order impugned. The Circular does not speak of any retrospective effect being given thereto. On the date when the order impugned was passed, the Circular was not in effect. In any event, the Circular is contrary to the Sections 18 and 21 of the Act of 1980. A Circular cannot be issued to confer jurisdiction on authorities which the Act does not confer jurisdiction upon. The Circular dated February 1, 2002 has been issued by the Municipal Commissioner of the Kolkata Municipal Corporation. The Act of 1980 does not authorize the Municipal Commissioner of the Kolkata Municipal Corporation to issue such a Circular. The Circular dated February 1, 2002 is beyond the provisions of the Act of 1980. The Circular therefore is not valid.
The Circular is also not attracted in the present case as it has been issued subsequent to the order impugned. Therefore, the Circular dated February 1, 2002 does assist the Corporation authorities in justifying the Municipal Commissioner in passing the order impugned. The Municipal Commissioner is not the disciplinary authority in terms of Sections 18 and 21 of the Act of 1980. Moreover, an appellate authority available to the writ petition was sought to be denied by the Corporation authorities when the Municipal Commissioner had acted as the disciplinary authority. The contention that an appeal could be made to be Mayor-in-Council is without any basis. The Act of 1980 does not postulate that an appeal could be made to the Mayor-in-Council from an order passed under Section 21(3) of the Act of 1980. The impugned order is in violation of Sections 18 and 21 of the Act of 1980 and cannot be sustained. For the same reasons the three grounds of justification are not accepted.
The original writ petitioner had made a representation dated December 28, 1998 for the disciplinary authority to consider. The disciplinary authority not having considered the same, a writ petition being W.P. No. 2219 of 1999 was filed. Such writ petition was disposed of by directing the disciplinary authority to consider the representation dated December 28, 1998 in accordance with law within a period of eight weeks from the date of communication of the order.
The impugned order records that the representation of the original writ petitioner has not been able to bring out any material argument in favour of his defence. Such recording is the conclusion of the so-called disciplinary authority. None of the contentions that has been raised by the original writ petitioner in his representation dated December 28, 1998 has been dealt with by the so-called disciplinary authority in the impugned order. There is no material appearing on the face of the impugned order to establish that the so-called disciplinary authority had considered the representation dated December 28, 1998 of the original writ petitioner. The so-called disciplinary authority has not assigned reasons as to why the representation dated December 28, 1998 does not find any favour with it. The reasons leading to the arrival of the conclusion recorded in respect of the representation has not been recorded. An administrative order is required to be informed with reasons.
The order passed by the so-called disciplinary authority is uninformed with reasons so far as the representation dated December 28, 1998 of the original writ petition is concerned. Such order of the so-called disciplinary authority is, therefore, in violation of the directions contained in the Order dated December 20, 1999 passed by the Court. The impugned order being uninformed with reasons cannot be sustained on this ground also.
The writ petitioner has contended that the decision making process of the disciplinary authority stood vitiated due to breach of principles of natural justice. It is contended on behalf of the writ petitioners that, denial of the copies of the minutes of the day to day proceedings as well as the copy of the deposition is a serious breach of the principles of natural justice. It is contended on behalf of the Corporation authorities that the original writ petitioner did not suffer real prejudice by the lack of supply of such documents to him and in any event has not pleaded or established the same.
In Bishamber Das Dogra (supra), Asim Chatterjee & Ors. (supra), Debasis Das & Ors. (supra) and Amar Nath Chowdhury (supra) the Supreme Court has held that non-supply of relevant documents to a delinquent may be in breach of the principles of natural justice. However, such breach of the principles of natural justice does not automatically result in the order of punishment being set aside or the departmental proceedings being declared null and void. It is for the delinquent employee to plead and prove that the non-receipt of the documents by the delinquent has caused him prejudice and has resulted in miscarriage of justice.
In the instant case, the original writ petitioner has alleged that he did not receive the copy of the minutes of the day to day proceedings before the Enquiry Officer as also copy of the deposition of the witnesses examined before the Enquiry Officer. This complaint was made contemporaneously by a letter dated December 7, 1998 and which was duly received by the Corporation authorities. The affidavit in opposition used on behalf of the Corporation authorities in the instant writ petition does not disclose any evidence that the requisite minutes of the day to day proceedings before the Enquiry Officer as well as copy of the deposition of the witnesses examined before the Enquiry Officer were made available to the original writ petitioner. Therefore, the charge that the original writ petitioner did not receive the copy of the minutes of the day to day proceedings as well as the copy of the deposition of the witnesses examined before the Enquiry Officer stands established. The question of real prejudice has to be answered in favour of the original writ petitioner. True the order of the Enquiry Officer records the deposition of the witnesses. However, a copy of the deposition of the witnesses is required to be supplied to the original writ petitioner for him to appreciate the deposition quoted in the report of the Enquiry Officer. The minutes of the day to day proceedings before the Enquiry Officer as well the copies of the deposition of the witnesses are relevant and are essential for the original writ petitioner to make an effective and detailed representation to the disciplinary authority against the finding of the Enquiry Officer. That opportunity has been denied to the original writ petitioner by the non-supply of the documents. The non-supply of the documents being therefore in the given facts of this case has caused prejudice to the original writ petitioner and has resulted in miscarriage of justice. The writ petitioner has made relevant averments in this regard in the writ petition. The same has not been adequately denied by the Corporation authorities in their affidavit. The Corporation authorities do not deny that copies of such documents were not given. The Corporation authorities claim that, such stand of the original writ petitioner is a dilatory tactic.
The other points raised by the parties are not dealt with herein as I am of the view that the disciplinary proceedings stands vitiated due to breach of the principles of natural justice and that the order impugned cannot be sustained as it is in violation of Sections 18 and 21 of the Act of 1980 as well as being passed in breach of the principles of natural justice.
The impugned order awarding punishment against the original writ petitioner is set aside. Since the original writ petitioner has died, the departmental proceeding therefore against him has abated. Consequently, the Corporation authorities will consider the original writ petitioner not to be punished in terms of the order impugned and will proceed to disburse all monetary benefits including consequential benefits that the original writ petitioner was entitled to on the basis that the original writ petitioner was not punished, in favour of the persons legally entitled thereto. The Corporation authorities will undertake such exercise preferably within four weeks from the date of communication of this order on them.
W.P. No. 1358 of 2000 is allowed as aforesaid. No order as to costs.
[DEBANGSU BASAK, J.]