Calcutta High Court (Appellete Side)
Prabir Kumar Kundu vs The State Of West Bengal & Ors on 17 December, 2008
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice S.P. Talukdar
W.P. No. 7593 (W) of 2008
Prabir Kumar Kundu
Vs.
The State of West Bengal & Ors.
For the Petitioner: Mr. Arun Kumar Maiti,
Mrs. Kaberi Sengupta (Maiti),
Mr. S. N. Roy Chowdhury,
Mr. Purnasis Bhunia.
For the Respondents: Mr. Milon Bhattacharjee.
Judgment on : 17.12.2008.
S.P. Talukdar, J.: By order dated 27th February, 2008, the Chief Operating
Manager of the Calcutta Tramways Co. (1978) Ltd., appointed Shri Jaharlal Dutta, as Inquiring Authority to enquire into charges framed against the writ petitioner, Shri Prabir Kundu. Shri Sachin Haldar was appointed as Presenting Officer. The respondent authority in the annexed charge sheet, which was issued along with the said order, brought the following charge against the petitioner:-
The petitioner was on duty as a Bus Conductor at route E-5 on 6th of March, 2006. At Howrah Station, Checking Squad checked his cash bag and detected an amount of Rs. 139.50 in excess after considering the total tickets issued and sold as well as the bag money and the personal money. The petitioner failed to justify the excess cash before the senior officials of the Company. No passengers balance and lost property was marked in the waybill. Along with the charge sheet, list of documents by which the article of charge framed was proposed to be sustained as well as the list of witnesses were served.
Challenging such initiation of the disciplinary proceeding, the petitioner approached this Court with the instant application under Article 226 of the Constitution.
It was alleged on behalf of the petitioner that the authority concerned issued the purported charge sheet with a closed and/or preconceived mind. Initiation of the enquiry and simultaneously appointing inquiring authority and the presenting officer, even before filing of the written statement of defence, clearly manifests bias and mala fide on the part of the authorities. Initiation of such an enquiry proceeding thereby caused prejudice to the writ petitioner and it was in violation with the provision of Calsue-13 of the Amended Standing Order of the Calcutta Tramways Co. (1978) Ltd.
The factual backdrop of the present case may briefly be stated as follows:-
The petitioner is a Bus Conductor No. 759/7558 at Khidderpore Depot under the Calcutta Tramways Company (1978) Ltd. On 22nd of November, 2008, the Chief Operating Manager of the said Company issued purported order thereby giving appointment to the Inquiring Authority as well as the Presenting Officer and enclosing thereto the Memorandum of Charge sheet containing articles of charges against the petitioner. The petitioner submitted a representation on 7.2.2008.
Mr. Maiti, as learned Counsel for the petitioner, at the very outset, submitted that the issuance of charge sheet was not preceded by giving the petitioner an opportunity to show cause. The very fact that the authority concerned while issuing charge sheet gave appointment to the inquiring authority as well as the presenting officer, according to learned Counsel, Mr. Maiti, clearly manifests 'closed mind' and mala fide as well as bias of the respondent authorities. It was categorically submitted on behalf of the writ petitioner that the authority concerned by initiating the disciplinary proceeding in such biased manner has displayed its mala fide intention to punish the petitioner even before the guilt is established. It is true that one cannot place the cart before the horse. There is no doubt that the principles of natural justice demand that a delinquent employee must be given an opportunity to explain the charges against him and if the authority concerned does not find such explanation satisfactory, then and then only they would initiate a proceeding.
In course of hearing, attention of the Court was invited to the Amended Standing Order and order No. 13 of the same which relates to charge sheets. It may be that there is no express provision for issuance of a show cause notice or for giving the delinquent employee an opportunity to explain by way of filing a show cause but principles of natural justice demand that this must be read into the relevant provision. Question, however, arises as to whether any show cause was at all issued and served upon the petitioner before issuance of the charge sheet.
Mr. Milon Bhattacharjee, appearing as learned Counsel for the respondent authority, submitted that in absence of any prejudice being caused to the writ petitioner, there could be nothing wrong in appointing the inquiring authority as well as the presenting officer while issuing charge sheet against a delinquent employee.
Referring to order No. 13 of the said Amended Standing Orders of the respondent company, it was submitted that there is clear provision for giving such an opportunity. It follows from the said standing order that any employee charged with a major misdemeanour is required to be served with a copy of the charge or charges and must have to be given opportunity to rebut the charge. It is for the employee to respond to the same by submitting a written reply and thereafter, an enquiry is to be instituted by the departmental head and such employee so charged must also be given every opportunity to rebut the charge or charges and shall have the right of cross-examination. According to Mr. Bhattacharjee, the anxiety of the writ petitioner, as ventilated in the instant application, is rather misplaced.
It is true that the authority concerned while issuing charge sheet has appointed inquiring authority as well as presenting officer. But that by itself, particularly in absence of prejudice being caused to the said delinquent employee, cannot be the basis for any grievance.
In the case of K.E.B. Vs. T.S. Venkatarangaiah, as reported in 1992(1) SLR 769, the learned Division Bench of the Karnataka High Court held that when the delinquent denies the charges and participates in the inquiry without any objection and no prejudice is caused to him, nominating the inquiry officer even prior to the framing of charges would be a mere formality.
Mr. Maiti submitted that the very language used in the charges clearly establishes that the authority concerned is proceeding on the basis that the delinquent employee is guilty of the charges.
It is true that Article of Charge-I had been drafted in the following manner:-
"You failed to justify the senior officials of the Company regarding this excess cash. Your such acts are the conclusive proof of your malafide intention. You have committed gross misconduct and major misdemeanour under Amended Standing Order of the Company............" and that, "no passengers balance and lost property was marked in the waybill. You failed to justify the senior officials of the Company regarding this excess cash."
Mr. Maiti then submitted that if the authority concerned had already held the petitioner guilty, what was left for enquiry, if anything, at all.
Significantly enough, there is an endorsement dated 3rd May, 2006 of an authority signing for Chief Operating Manager to the effect that 'on the basis of the deposition of the delinquent and the reporters, charge sheet may be served against the delinquent'. It clearly indicates that there was some sort of a preliminary enquiry and the petitioner was given ample opportunity in course of the same to offer his explanation and defend himself.
The grievance relating to alleged denial of an opportunity of hearing, thus, does not seem to have any sound rational basis. So far the language is concerned, even for the offence of murder under Section 302 of the Indian Penal Code, the language of charge is as follows:-
"That on or about the ........... day of ............ at .................... you committed murder by intentionally (or knowingly) causing the death of (name of the deceased), and thereby committed an offence punishable under Section 302 of the Indian Penal Code, and within the cognizance of Court of Session................." It will be preposterous to suggest that the manner of framing of charge indicates that the Court of Sessions has already found the accused guilty of murder.
There can be no justification whatsoever for missing the woods for the trees. In course of hearing, reference was also made to the West Bengal Services (Classification, Control and Appeal) Rules, 1971. Having regard to the nature of the controversy raised in the present application and the discussion made earlier, I do not think it necessary to deal with the said rules.
So far the present case is concerned, it may be necessary to mention that the materials on record do not clearly reflect any bias on the part of the authority. Mr. Bhattacharjee deriving inspiration from the decision in the case State of Punjab Vs. V.K. Khanna & Ors., as reported in AIR 2001 S.C. 343, submitted that the test is as to whether there is a mere apprehension of bias or there is a real danger of bias. The Apex Court in the said case further held that general allegation of personal vendetta without any definite evidence therefor, cannot be said to be a sufficient assertion worth acceptance in a Court of law.
Mr. Bhattacharjee in course of argument expressed his concern and anxiety for having a better society with people holding public offices acting in a responsible and honest manner. In this context, he referred to the decision of the Apex Court in the case of Uttaranchal Transport Corporation Vs. Sanjay Kumar Nautiyal, as reported in 2008 AIR SCW 1901. Mr. Bhattacharjee emphatically submitted that a conductor holds a post of trust. A person guilty of breach of trust does not deserve to be dealt with lightly.
The Apex Court in the case of U.P. SRTC Vs. Mahendra Nath Tiwari & Anr., as reported in (2006) 1 SCC 118, observed that the conductor is really in a position of trust as far as the employer is concerned. He is duty-bound to collect fare from every passenger on behalf of his employer. Reference was further made to the decision in the case of V. Ramana Vs. A.P. SRTC & Ors., as reported in (2005) 7 SCC 338 in this regard.
As discussed earlier, it cannot be said that the authority concerned initiated the inquiry in an arbitrary manner and with a mala fide intention since it was not preceded with issuance of a notice thereby offering the writ petitioner an opportunity to explain. The charge sheet was issued well after the alleged act and the authority concerned did not sit tight over the mater but proceeded with a preliminary inquiry. The writ petitioner participated in the same. Thus, I find it difficult to accept the contention that the proceeding was started in a biased manner or it was in violation of the principles of natural justice. No prejudice could have been caused to the petitioner in the factual backdrop of the present case or for nominating the inquiring authority and the presenting officer simultaneously with the issuance of charge sheet.
Considering all such facts and circumstances, I find no rational justification for any manner of interference. The present application being W.P. No. 7593(W) of 2008 fails and be dismissed.
There is no order as to costs.
Xerox certified copy of the judgment be supplied to the parties, if applied for, as expeditiously as possible.
(S.P. Talukdar, J.)