Calcutta High Court (Appellete Side)
Gouri Sankar Roy vs South Bengal State Transport ... on 9 October, 2013
Author: Aniruddha Bose
Bench: Aniruddha Bose
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Aniruddha Bose
W.P. No. 13099(W) of 2011
Gouri Sankar Roy
Vs.
South Bengal State Transport Corporation & Anr.
Advocate for the Petitioner: Mr. Manas Kundu
Advocate for the State: Mr. Pantu Deb Roy
Advocates for the respondent
corporation; Mr. Abhratosh Majumdar
Mr. Ayan Banerjee
Judgment On: 9th October, 2013.
ANIRUDDHA BOSE, J.:-
1. The petitioner, who is employed with the North Bengal State
Transport Corporation as a driver questions in this proceeding the
validity of a departmental action initiated against him upon issue of
memorandum of charges on 2nd November 2010 and an order of
suspension passed against him on 28th October 2010 . The nature of
allegations for which these steps were taken would be apparent
from the articles of charges itself, which stipulates:-
" ANNEXURE-I
Statement of article of charges framed against
SRI GOURI SANKAR ROY, HVD OF DURGAPUR
DEPOT. : SBSTC.
CHARGE-I
It is reported that on 17.10.10 you were allotted
vehicle No. WB-39A/1069 for performing duty in
Durgapur-Kolkata route 1st day Car. The said
vehicle was being outshedded from Durgapur Depot
for plying as Durgapur-Kolkata service in the very
early morning. Sri Ajoy Sinha, on-duty Foreman &
Shift-in-charge, Durgapur Depot was checked the
vehicle before plying in the route and detected that
18(eighteen) Ltrs. (approx.) of H.S.D. (5ltrs. Each
in two Jerry Cane, 02(two) each in four pepsi
bottles) all in two bags kept with said vehicle.
It revealed from the report that it is clear that on
the said date you stole 18(eighteen) Ltrs. Of
H.S.D. from Durgapur Depot and was carrying it
out of the Depot in the vehicle only for personal
gain.
Your such type of activities in the derogatory to
the prestige of the Corpn. before the eyes of the
commutors in general. You failed to discharge your
duty faithfully & sincerely & to-prevent financial
loss to the Corpn.
You are charged for violation of provisions 25(1),
(2) & (6) of SBSTC ESR.
ANNEXURE-II
STATEMENT OF IMPUTATION OF MISCONDUCT
OR MISBEHAVIOUR IN SUPPORT OF THE
ARTICLE OF CHARGES FRAMED AGAINST SRI
G.S. ROY, HVD, DGP DEPOT.
(Same as mentioned in the Article of charge-I vide
Annexure-I with reference to Annexure-II).
ANNEXURE-III
LIST OF DOCUMENTS OF WHICH THE ARTICLE
OF CHARGES FRAMED AGAINST SRI ROY HVD
ARE PROPOSED TO BE SUSTAINED.
A photocopy of written report/statement of Sri
Ajoy Kumar Sinha, Foreman, Durgapur Depot and
on-duty Shirt-in-charge 'N' & 'A' shift dated
16.10.10 and 17.10.10, Durgapur Depot, SBSTC,
is annexed herewith.
ANNEXURE-IV
LIST OF WITNESSES BY WHOM THE ARTICLE
OF CHARGES FRMAED AGAINST SRI ROY HVD
ARE PROPOSED TO BE SUSTAINED.
1.Sri Ajoy Kr. Sinha, Foreman, DGP Depot
2. Sri Ajit Acharya, Security.
ORDER
In exercise of the power conferred by Regulation 38 of SBSTC ESR 1987, the undersigned hereby appoints to Sri S. Sanyal AM(Ad) Dgs. Divn SBSTC as Enquiry Officer to enquire into the charges leveled against Sri Gouri Sankar Roy, HVD, Durgapur Depot, SBSTC." (quoted verbatim).
2. The legal validity of the said proceeding has been assailed by the petitioner on the ground of prejudging the issue on the part of the disciplinary authority and non-supply of documents. It has been submitted by Mr. Kundu, learned counsel for the petitioner that the very fact of appointment of the enquiry officer before the petitioner was given opportunity to respond to the charges leads to the inference that the authorities had prejudged his guilt. The judgment relied on this point on behalf of the petitioner is the case of State of Punjab Vs. V. K. Khanna reported in [2001(2) SCC 330].
3. The other point on which the legality of the memorandum of charges has been questioned is that the authorities had already come to a conclusion that the petitioner had committed the acts of misconduct without waiting for conclusion of the departmental proceeding. According to the petitioner, it would be a futile exercise to go through the said proceeding as the employer had already come to a finding on the question of his guilt. Allegations have also been made in this writ petition over non-furnishing of certain documents, which the petitioner claims to have had asked for but his request was denied.
4. The corporation has contested this proceeding by filing affidavit. It is submitted on behalf of the corporation that the writ petition is premature, as the petitioner would have opportunity to deal with the allegations made against him. On the question of supply of documents, it has been submitted on behalf of the respondents that majority of the documents asked for were not relevant for the purpose of giving a reply to the charge sheet. The petitioner was given opportunity to come to the office of the corporation for taking inspection of the documents but he declined to do so and insisted on having copy of the documents. Case of the respondents is that since the petitioner was given opportunity to take inspection of the documents, requirement of adherence to the principles of natural justice stood satisfied.
5. In this writ petition, the petitioner has also challenged continuance of his order of suspension. On the question of supply of documents, it has been specifically stated in the affidavit-in-opposition that the disciplinary authority has no intention of holding back any document or information required by the petitioner and the documents sought for by the petitioner to enable him to defend the charges brought against him would be supplied to him within a timeframe which may be prescribed by this Court. As such the lis on the issue of withholding supply of documents does not survive anymore, and no adjudication is necessary on that question. Accordingly, in this judgement I shall examine the legality of the proceeding initiated against the petitioner on two factors. On the point that this proceeding is premature, my opinion is that the petitioner has raised issues on legality of initiation and continuance of the departmental proceeding at the threshold level, and the issues raised by the petitioner which shall be addressed by me in this judgement require to be examined at this stage only. The petitioner need not undergo the disciplinary proceeding in its entirety to get a decision on these points.
6. The first question which I shall determine is as to whether on account of appointment of the enquiry officer simultaneously with issue of memorandum of charges, and naming the enquiry officer in a separate order made and specified in the articles of charges itself, the departmental proceeding ought to be invalidated or not . A similar question was considered by the Supreme Court in the case of State of Punjab Vs. V. K. Khanna, (supra), and in that judgement it was held:-
"34. The High Court while delving into the issue went into the factum of announcement of the Chief Minister in regard to appointment of an enquiry officer to substantiate the frame of mind of the authorities and thus depicting bias - what bias means has already been dealt with by us earlier in this judgment, as such it does not require further dilation but the factum of announcement has been taken note of as an illustration to a mindset viz. :
the inquiry shall proceed irrespective of the reply - is it an indication of a free and fair attitude towards the officer concerned ? The answer cannot possibly be in the affirmative. It is well settled in service jurisprudence that the authority concerned has to apply its mind upon receipt of reply to the charge sheet or show-cause as the case may be, as to whether a further inquiry is called for. In the event upon deliberation and due consideration it is in the affirmative - the inquiry follows but not otherwise and it is this part of service jurisprudence on which reliance was placed by Mr. Subramanium and on that score, strongly criticised the conduct of the respondent (sic appellants) herein and accused them of being biased. We do find some justification in such criticism upon consideration of the materials on record."
7. But in a later decision, involving the same employer, South Bengal State Transport Corporation Vs. Ashok Kumar Ghosh, reported in [(2010) 11 SCC 71] the judgement delivered in the case of V.K.Khanna (supra) was distinguished. Dealing with clause 38 of the South Bengal State Transport Corporation Employees' Service Regulations, which specifies the procedure for imposing penalties, it was held by the Supreme Court:-
"12. From a plain reading of Regulation 38(2) it is evident that the disciplinary authority is required to draw or cause to be drawn up, the substance of imputation of misconduct into definite and distinct articles of charges and the statement of imputation of misconduct, to contain the statement of relevant facts including any admission or confession made by the employee. It also requires drawing up a list of documents by which and a list of witnesses by whom the articles of charges are proposed to be sustained. Regulation 38(3) of the Regulations obliges the disciplinary authority to deliver or cause to be delivered to the employee the articles of charges and the statement of imputation of misconduct requiring the employee to submit to the Enquiry Officer written statement of defence within a period specified. Neither Regulation 38(2) nor Regulation 38(3) provides that before the appointment of the Enquiry Officer the reply of delinquent employee is to be considered. In our opinion, it may be open for disciplinary authority to initiate the departmental proceedings on consideration of the reply of an employee but as an absolute proposition of law it cannot be said that before initiating departmental enquiry or appointing Enquiry Officer, reply of the delinquent employee is required to be obtained and considered unless it is the requirement of the rules. There may be cases where the charges are of such a nature that the disciplinary authority may not require any reply from the delinquent employee but straightway initiate the departmental enquiry and appoint Enquiry Officer. In the present case the Bus was checked by the flying squad of the appellant- Corporation itself and in view of what has been found by it, disciplinary authority while framing the charge had appointed the Enquiry Officer. We are of the opinion that mere appointment of Enquiry Officer while framing the charge-sheet, even before considering the reply of the delinquent employee, does not reflect any bias.
13. Now, referring to the authority of this court in the case of V.K. Khanna (supra), relied on by the High Court, same is clearly distinguishable. In the said case the charge-sheet dated 24.4.1997 was issued to the delinquent employee who happened to be the Chief Secretary of the State and he was asked to submit his reply within 21 days but even before his reply, the Chief Minister made a statement on 27.4.1997 that a Judge of the High Court would look into the charge against him. The aforesaid act of the Chief Minister coupled with other factors led this Court to conclude that the action was actuated by bias. In the present case the facts are completely different."
8. On behalf of the petitioner, it was contended that the judgment in the case of Ashok Kumar Ghosh (supra) was delivered considering provisions of clause 38 of the Regulation, which had undergone subsequent amendment and in this case, the amended version of the said clause would be applicable. Mr. Kundu, learned counsel for the petitioner brought to the notice of the Court the Regulation applicable in the case of the petitioner. On behalf of the respondents, the earlier form of Regulation 38 as well as the amended one has been compared, and it was submitted that there was no material difference between these two provisions and the basis on which the decision of the Supreme Court in the case of Ashok Kumar Ghosh (supra) was delivered remains applicable when the petitioner's case is tested in relation to the amended provision of the same clause of the said Regulation. The provisions of the said Regulation, before the amendment, on which the case of Ashok Kumar Ghosh (supra) was decided, and after amendment, which ought to guide the present proceeding, has been produced before me by Mr. Majumdar, learned counsel for the corporation. These provisions stipulate;-
"
Regulation 38, as Regulation 38, as it amended originally stood
38. Procedure 38(1). No order of for imposing dismissal, removal penalties.-(1) * * or reduction shall * be passed on an (2) The employee of the disciplinary Corporation (other authority shall than an order draw up or cause based on facts to be drawn up- which led to
(i) the substance conviction in a of the criminal court) imputations of unless he has been misconduct or informed in writing misbehaviour into of the grounds on definite and which it is distinct articles proposed to take of charge, action, and has
(ii) a statement been afforded an of imputations of adequate misconduct or opportunity of misbehaviour in defending himself.
support of each The grounds on
article of charge which it is
which shall proposed to take
contain action shall be
(a) statemen reduced to the
t of form of a definite
relevant charge or charges,
facts which shall be
including communicated to
any the person charged
admission together with a
or statement of the
confessio allegations on
n made which each charge
by the is based and of
employee, any other
(b) a list of circumstances
document which it is
s by proposed to take
which, into consideration
and a list in passing orders
of on the case. He
witnesses shall be required
by whom, to, within
the reasonable time to
articles a written
of charge statement of his
are defence and to
proposed state whether he
to be desires to be
sustained heard in person.
. If he so desires or
(3) The if the authority so
disciplinary directs, an oral
authority shall enquiry shall be
deliver or held. At that
cause to be enquiry oral
delivered to evidences shall be
the employee heard as to such
a copy of the of the allegations
articles of as are not
charge and admitted and the
the statement person charged
of imputations shall be entitled to
of misconduct cross-examine the
or witness, to give
misbehaviour evidence in person
prepared and to have such
under clause witness called, as
(ii) of sub- he may wish
regulation (2) provided that the
and shall officer conducting
require the the enquiry may
employee to for the special and
submit to the sufficient reasons
inquiring to be recorded in
authority writing, refuse to
within such call a witness.
time as may The proceedings
be specified a shall contain a
written sufficient record
statement of of the evidence
his defence and a statement of
and to state the findings and
whether he grounds thereof.
desires to be
heard in
person.
9. In my opinion, however, the amended regulation also does not render the action of the respondents invalidated solely on the ground of appointment of the enquiry officer before receiving the response or explanation of the petitioner, against whom the charge-sheet has been issued. In the case of Ashok Kumar Ghosh (supra) it was observed, dealing with judgment of the Supreme Court in the case of V. K. Khanna (supra) that prohibition on initiation of departmental proceeding before consideration of the reply of an employee is not an absolute proposition of law unless the applicable service regulation makes stipulation to that effect or consideration of such reply becomes otherwise necessary in the factual context of a specific dispute. The relevant passage from the decision in the case of Ashok Kumar Ghosh (supra) on this point has been reproduced in the earlier part of this judgement. I have considered the provisions of clause 38 of the Regulation as it stood before the amendment as well as after the amendment. The post-amendment clause 38 does not stipulate that appointment of enquiry officer would have to be preceded by consideration of the reply of the delinquent employee, and on satisfaction on the part of the disciplinary authority that the delinquent employee shall be proceeded against. This is also not a case where allegations against the petitioner are vague and in undefined form, and to make specific charge against the petitioner further information or response from the petitioner would be necessary. The authorities have come with specific set of charges against the petitioner in the memorandum of charges. In these circumstances, I am of opinion that the memorandum of charges ought not to be quashed at this stage on the sole ground that before considering the reply of the petitioner to the articles of charges, the employer has appointed the enquiry officer.
10. The next issue, which was urged on behalf of the petitioner, was that there was prejudging by the concerned authority the guilt of the petitioner. This is reflected, according to the petitioner, in the manner the articles of charges has been framed. It has been argued by Mr. Kundu that the disciplinary authority had come to the conclusion that the petitioner had stolen eighteen litres of diesel on 17th October, 2010 and a positive assertion has been made to that effect in the second paragraph of the first charge, which has been quoted above. Submission of the petitioner is that such positive statement about guilt of the petitioner made in the charge-sheet without considering reply of the petitioner shows closed mind on the part of the disciplinary authority, and in this background, the proceeding would be a mere formality, guilt of the petitioner being a foregone conclusion. In support of this submissions on this point, a decision of the Supreme Court in the case Oryx Fisheries Pvt. Ltd. Vs. Union of India & Ors. has been cited by the learned counsel for the petitioner. In this judgment, reported in [2010(13) SCC 427], it has been held:-
"31. It is of course true that the show-cause notice cannot be read hypertechnically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show-cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show- cause notice a person of innocence. 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 especially 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."
11. The same principle has been laid down in the judgment of a Division Bench of this Court in the case of Khaitan (India) Ltd. Vs. Learned Judge, Eighth Industrial Tribunal. In this judgment, reported in [2009( 4) CHN 380 ], it has been held:-
"13. The controversy in this matter started with the issuance of the chargesheet dated 21st January, 1996. It is an admitted position that this chargesheet was replied to and domestic enquiry was held and on fact finding, the Enquiry Officer held him guilty, thereafter the order of punishment was passed by accepting the report. It cannot be said, therefore, that no opportunity of being heard was given. However, the learned Tribunal found at the first instance the same was done in violation of principle of natural justice and as such the learned Tribunal conducted enquiry by itself to find whether order of punishment was justified or not. Both the sides adduced evidence, both documentary and oral. The learned Tribunal on fact found that there has been no evidence to prove the alleged misconduct of theft. We have gone through with great care the findings of the learned Tribunal. We do not see that the findings of the learned Tribunal is perverse or without any evidence. The learned Trial Judge has rightly followed the established principle of law that fact finding of the subordinate Tribunal should not be interfered with by the Writ Courts substituting its own finding. On careful reading of the chargesheet it appears to us that though it is urged before us for the first orally as it is point of law on admitted fact, the chargesheet has been issued with the prejudged mind. We therefore, quote the language of the chargesheet :
"It has been reported to the undersigned that at 8.30 a.m. on 18.01.1996 when you are passing the Mill gate, and being challenged by the security personnels like Rabindranath Sarkar, Gullu Rahaman, Santosh Biswas, Habul Roy & Iddris Sk. found some brass dust, about 3 kgs. inside your two pockets, it is a pure case of theft and management feel you are not fit for employment on this organization."
14. Thus the language above clearly suggest that before enquiry is held the disciplinary authority concluded theft is committed and only task remaining was to impose punishment of termination. The alleged confessional statement was also obtained by the same very person who has lodged complaint as has been found by the learned Tribunal. Therefore, such alleged confessional statement as evidence tantamount to testimonial compulsion of delinquent which is Constitutionally prohibited. According to us safeguard against testimonial compulsion as provided in Article 20(3) is equally applicable in domestic proceedings also, more so when charge is of criminal nature. The admitted fact as recorded by the learned Tribunal and the learned Trial Judge and also noted by us clearly depicts a case of unauthorised possession of brush dust belonging to the company. According to us in order to maintain a charge of theft it has to be alleged the following ingredients.
(i) Any movable property has to be taken from the possession of any person without his consent.
(ii) There must be intention to take the same dishonestly out of possession in order take such property for his own gain."
12. In the instant case, the way the articles of charges has been framed, as I have already observed, reflects that the issuing authority had already come to a finding that the petitioner had stolen 18 litres of High Speed Diesel. It is apparent from the second and third paragraphs of the first charge, which has been reproduced in the earlier part of this judgement.
13. The issuing authority, after recording that it was reported to him that certain quantity of diesel in different containers was detected in the vehicle which was allotted to the petitioner, came to the conclusion that the petitioner had stolen 18 litres of diesel. It is further recorded, in positive statement that such type of activities of the petitioner was derogatory to the prestige of the corporation and that the petitioner had failed to discharge his duty faithfully and sincerely and to prevent financial loss to the corporation. Such observations also reflect close and prejudiced mind, which has been found to be fatal to a proceeding of this nature in the cases of Oryx Fisheries Pvt. Ltd. (supra) and Khaitan (India) Limited (supra). Continuance of the departmental proceeding in such circumstances, to a reasonable person, would appear to be a mere formality. There would be too little to adjudicate or determine on in such proceeding, as the authority issuing the charge-sheet himself has revealed his conclusion before the petitioner filed his reply to the charges.
14. On this ground, I quash the memorandum of charges. But liberty is given to the respondents to initiate a disciplinary proceeding afresh if the concerned authority within the administrative hierarchy of the corporation is satisfied about the necessity for commencing such proceeding. As substantial time has lapsed since the alleged act of misconduct was committed, I am of the view that the employer ought to decide on the question of issuing fresh memorandum of charges within a prescribed time limit and I direct that such proceeding must be initiated, if the authorities are satisfied of the necessity to do so, within a period of eight weeks from the date the certified copy of this judgement becomes available to them. The copies of records or documents sought for by the petitioner, in such a situation, shall be made available to him within a period of two weeks thereafter, provided the petitioner applies for the same within one week from the date of receiving the fresh notice to show cause or memorandum of charges. The disciplinary proceeding, if commenced afresh, shall be concluded within a period of eight weeks from the date of commencement thereof. As the nature of allegations against the petitioner on the face of it appear to be serious, I direct the order of suspension to continue till final decision is taken by the concerned authority, if a fresh proceeding is initiated within the timeframe prescribed above. If no fresh proceeding is initiated within the said timeframe, the order of suspension shall lapse automatically on expiry of the said timeframe and the consequential steps in such a situation shall follow. The petitioner shall also be at liberty to seek revocation of the order of suspension in the manner which may be permissible in law, even if the proceeding is commenced afresh.
15. Certain other authorities were relied on in support of the case of the petitioner regarding his entitlement to get relevant documents. As I have directed the corporation to supply the documents, I do not think it is necessary to consider these authorities in this judgment.
16. The writ petition stands allowed in the above terms.
17. Urgent certified photocopy of this order be made available to the parties if applied for, subject to compliance with all necessary requisite formalities.
(Aniruddha Bose, J.)