TaxTMI 
TaxTMI 
1987 (6) TMI 396
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....ows. At the relevant time the petitioner was holding the post of Assistant Director (Jute Scheme), Export Inspection Agency, Jute Scheme in the Cal. Office, Export Inspection Council of India (hereinafter referred to as Council) the officers of which are the respondents in the writ petition and the appellants before us. On 15th of October, 1970 the petitioner was appointed to the post of Junior Technical Officer in the Export Inspection Agency Calcutta (Jute Scheme). On 1st of November, 1974 the petitioner was promoted to the post of Assistant Director. In September, 1975 the petitioner visited Jammu and Kashmir along with the members of his family and other colleagues on obtaining Leave Travel Concession (hereinafter referred to as LTC). Apart from the petitioner, another Assistant Director, namely, Sri A. Dastidar of this office and one office Assistant namely, Samar Dey of the Calcutta Office also visited Kashmir. This was done under a package tour organised by one Maharaja Travels. In this connection the petitioner submitted a tour programme stating that on 1st of October, 1975 he along with the members of his family would be travelling to Kashmir and back. Under the heading "M....
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....cial Police Establishment Calcutta Branch on 27th of October, 1976 for alleged offence under sections 420, 468 and 471, IPC. By an order dated 12th of November, 1976 issued by Additional Director of the Council, New Delhi, the petitioner was put under suspension on the ground that a criminal offence is under investigation against him. On 22nd of December, 1976 the petitioner preferred an appeal to the Director (C.C.) in the Ministry of Commerce Government of India against the order of suspension assessed against him. On completion of the investigation against the petitioner, C.B.I. forwarded the Report to Dy. Inspector General of Police, C.B.I., New Delhi. On or about 2nd of May, 1977 the D.I.G. of Police, C.B.I., New Delhi, advised the Ministry of Commerce, Govt. of India for initiating regular departmental action against the petitioner and also to recover a sum of Rs. 1,381.90 from the petitioner which he was alleged to have drawn in excess. 2. By a memorandum dated 12th of May, 1977 Sri D.C. Majumdar, the Disciplinary Authority of the petitioner (hereinafter referred to as D.A.) informed the petitioner that it was proposed to hold an enquiry against him under Rule 11 of the E....
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....lass, although he never performed the journey in the 1st class, but had travelled in second class both ways and obtained payment of Rs. 1,618.70 as against entitlement of Rs. 226.80 by submitting false money receipt and certificate of journey procured from M/s. Maharaja Travels, Shri Mitra thus failed to maintain absolute integrity acted in the manner unbecoming of an Officer and thereby contravened Rule 3(1)(i)&(iii) of C.C.S. (Conduct) Rules, 1955 applicable to the employees of the Export Inspection Agency." 4. The "Statement of Imputation of misconduct", being Annexure II, stated as follows: "The said Sri Kalyan Kumar Mitra, was functioning as Asstt. Director (Jute Scheme) Export Inspection Agency, under Export Inspection Council, Calcutta, during the months of September to December, 1975. That the said Sri Kalyan Kumar Mitra, applied for L.T.C. advance for going to Pahelgaon (Kashmir) with his mother, wife and one son, aged 5 years and on his application accompanied by tour programme an amount of Rs. 1,540/- was sanctioned to him on 1.9.75. In this tour programme Sri Mitra mentioned that he would travel in the 1st class from Sealdah to Jammu and ba....
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....arty reached Calcutta on 30.10.75. The said Sri Mitra, obtained a money receipt from M/s. Maharaja Travels, Calcutta for his journey to Kashmir. In the said money receipt, 1st class rail fare from Sealdah to Jammu and back is stated to have been realised, although no journey was performed in the 1st class. It was further found that M/s. Maharaja Travels, Calcutta charged/realised a total amount of Rs. 2,495/- from the said Sri Mitra. This charge included (i) 2nd Class Railway fare from Sealdah to Jammu and back for 3 adults and 1 child, (ii) Bus fare from Jammu and Srinagar and back for 3 adults and 1 child (iii) Sightseeing expenses at Kashmir, (iv) Expenses on food during rail and bus journeys for 3 adults and 1 child, and (v) Boarding and lodging expenses at Srinagar for 12 days for 3 adults and 1 child. As per L.T.C. Rule, an employee is entitled to get only rail/bus fare from his Hd. Quarters to any place in India after deducting the fare of first 400 KM. on each side. The employee would get the railway fare in the class as per his entitlement, if actually travelled by him in the said class or would get the fare of the class in which the journeys hav....
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....ri Anjan Kr. Banerjee, employee of M/s. Maharaja Travels, Calcutta; (12) Sri Trilokesh Banerjee, partner of M/s. Maharaja Travels, Calcutta. 7. In reply thereto by a letter dated 28th of May, 1977 the petitioner denied the charges levelled against him and asked for a personal hearing. By his letter dated 17th of June, 1977 the Director of the Council appointed one Sri S.N. Razvi, a Joint Director of the Council, the Inquiring Officer to inquire into the charges framed against the petitioner. Upon objection raised on behalf of the petitioner, by an order dated 4th of August, 1977, the D.A. appointed one Sri D.P. Bhattacharya, who was the Joint Director of the Council at Calcutta as the Inquiry Officer to enquire into the charges framed against the petitioner in place and stead of the said Sri Razvi (hereinafter referred to as I.O.). By an order dated 2nd of September, 1978 D.A. appointed one Sri B.D. Roy who was then the Deputy Director of the Agency as the presenting Officer to present the case on behalf of the Disciplinary Authority (hereinafter referred to as P.O.). By an order dated 7th of October, 1977 Sri Lakshmikanthan, who was the Disciplinary Authority of Sri Samar Dey, ....
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....ust, 1979 the D.A. informed the petitioner that he was willing to hear the petitioner and that he deemed it necessary to examine Sri S. Sarkar, Senior Accounts Officer and T.N. Biswas, Accounts Officer both of Export Inspection Council of India, Calcutta (Jute Scheme) in the presence of the petitioner with a liberty to the petitioner to produce defence witnesses. On 3rd of September, 1979 the petitioner made a representation to D.A. in reply to above requesting therein to supply to him a copy of the report of the Inquiry Officer and wanted to know under what provision of the Rules the Director wanted to reexamine the two witnesses who had already been examined and cross examined by I.O. In reply thereto by a letter dated 14th of September, 1979 the Director informed the petitioner that he had decided to examine Sri Sarkar and Sri Biswas to ascertain as to why the factual information referred to therein was not incorporated in the relevant records. By a letter dated 27th of September, 1979 the petitioner informed the Director, inter alia, that there was no justification in examining Shri Sarkar and Biswas without examining Sri P. Roy Chowdhury, the Controlling Officer who actually s....
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....L COURT JUDGMENT (SYNOPSIS); 9. As already stated, the learned Judge allowed the application and made the Rule absolute. The learned Judge, inter alia, held as follows: (1) The Charge sheet shows that the mind of the Disciplinary Authority was made up before it was issued; (2) The finding was at variance with the Charge sheet. Neither there was any finding on the charge framed nor the findings were in respect of the charge framed; (3) The argument of Mr. Ginwalla that the petitioner had admitted his guilt was rejected. It was held that the petitioner had placed before the Senior Accounts Officer the actual state of affairs. The sanctioning officer did not refuse to sanction because of the prevalent practice in other organisations as regards admissibility of L.T.C. in package tour; (4) There has been violation of the principles of natural justice on the following grounds; (a) Refusal of a Lawyer; (b) The petitioner was not furnished with the material documents and defence witnesses. In this respect it has been held by the learned Judge that (i) Documents in connection with the proceedings in respect of Samar Dey would have helped the petitioner in his defence but the sam....
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....petitioner need not exhaust the statutory right of appeal; (e) The petitioner never claimed that he travelled by Railway First Class. 10. Being aggrieved by the same this appeal has been preferred by the respondents in the writ petition. SUBMISSION--On behalf of the appellant 11. Mr. Ginwalla appearing for the appellant has firstly made submission regarding the finding of the learned Judge that the Charge sheet shows that the Authority concerned was biased. In this connection he has placed before us the relevant charge sheet which we have quoted hereinabove. He has submitted that just as in the charge by the Magistrate under the Code of Criminal Procedure, a specific charge has to be made out, similar is the position here. It all depends on the facts and circumstances of the case as to whether the disciplinary authority is biased in initiating a disciplinary enquiry. In this case the Disciplinary Authority viz. Mr. Mazumdar, who was issued the charge sheet, was not biased. This will be borne out by following actions. At the request of the writ petitioner, the Inquiry Officer was charged by Mr. Mazumdar Subsequently the suspension order passed against the petitioner was rev....
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....g regard to the circumstances of the case, so permits. Rule 11(16)--When the case for the disciplinary authority is closed the Agency employee shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Agency employee shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the presenting Officer, if any appointed. Rule 11(17)--The evidence on behalf of the Agency employee shall then be produced. The Agency employee may examine himself in his own behalf if he so prefers. The witnesses produced by the Agency employee shall then be examined and shall be liable to cross-examination, re-examination and examination by the inquiring authority according to the provisions applicable to the witnesses for the disciplinary authority. Rule 11(18)--The inquiring authority may, after the Agency employee closes his case, and shall, if the Agency employee has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Agency employee to explain any circumstances appea....
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....any article of charge different from the original articles of the charge, it may record its findings on such article of charge. 13. Provided that the findings on such article of charge shall not be recorded unless the Agency employee has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge. (II) The inquiring authority, where it is not itself the disciplinary authority shall forward to the disciplinary authority the records of enquiry which shall include: a) the report prepared by it under clause (i); b) the written statement of defence if any submitted by the Agency employee; c) the oral and documentary evidence produced in the course of the enquiry; d) written briefs, if any, filed by the presenting Officer or the Agency employee or both during the course of the inquiry; e) the orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry. Rule--12(1) The disciplinary authority if it is not itself the inquiring authority may for reasons to be recorded by it in writing remit....
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.... concerned, our attention has been drawn to the letters dated 19th February, 1979, 23rd March, 1979 and the written being of 25th May, 1979. In support of this contention he has relied on the decision in S.K. Banerjee v. State of West Bengal, AIR 1980 SC 1170. 15. Next Mr. Ginwalla made his submission regarding the finding of the learned Judge regarding violation of the principle of natural justice on several courts. He has submitted that there has been no such violation in the present case and in any event the petitioner has not suffered any prejudice. So far as the scope of principal of natural justice is concerned, he has relied on K.L. Tripathi v. State Bank of India, AIR 1984 SC 273 at 281 (paragraph 29); N.C. Sarin v. Union of India, AIR 1976 SC 1686 at 1695 (paragraph 25) and State of U.P. v. Om Prakash Gupta, AIR 1970 SC 679. On the question of not providing a lawyer, he submitted that in the present case, no complicated question of fact or law was involved. So far as the question of fact is concerned there is no lis in the sense that there is an admission by the writ petitioner. The dispute between the parties is limited within a very narrow area. The petitioner obtaine....
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....that such report could not have assisted the petitioner. In this context he has referred to sub-rule (11) and (12) of Rule 11 which have been set out hereinabove. He has also drawn our attention to the letter dated 19th February, 1979 requesting inspection of the documents. He has submitted that this was for preparation of the defence statement and not for cross-examination. So far as the preliminary Inquiry Report and the documents relating to the same, it was submitted that they were not relevant. So far as the I.J.I.R.I. records are concerned, it was submitted that all efforts were made to obtain the documents and the witnesses. So far as the documents from Maharaja Travels are concerned, he has submitted that all steps had been taken by the I.O. to obtain the document asked for and he has done everything within his power to (make such document available. In any view of the matter no prejudice was caused for non-availability of such documents and accordingly the enquiry was not vitiated. In this connection he has referred to the following decisions : State of U.P. v. Om Prakash Gupta, AIR 1970 SC 679 at 684 and State of Mysore v. Shivabasappa Shivoppa, AIR, 1963 SC 375. 19. I....
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....al justice. Under this heading he has submitted as follows:-- A. Documents were asked for by the writ petitioner to prepare his defence but this was not supplied:-- 1. In the very first sitting of the enquiry proceeding held on 3rd of December, 1977 the petitioners asked for the following documents:-- a) Certified copies of the documents mentioned in the Annexure to the Charge sheet. b) If any other document was to be relied upon by the prosecution as stated in Item No. 22 of the charge sheet against Mr. Dastidar, copies thereof. c) All documents related to the criminal investigation by the CBI against the petitioners. d) Statements of all witnesses named in Annexure IV of the Charge sheet. e) Certified copies of all the documents relating to an enquiry on the same incident which had already been completed. f) Other L.T.C. bills settled by the office for certification. 23. After service of the charge sheet dated 12th May, 1977 the petitioner prayed for the following documents by a petition dated the 27th November, 1978:-- a) Full report of the Enquiry Officer. b) Statement of witnesses. ....
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....s follows. The Disciplinary proceeding was initiated on the basis of the said report. Admittedly a criminal investigation was started on some criminal charge but no criminal case was ultimately started. The said Investigating Officer of the C.B.I. was cited as a prosecution witness in the list of witnesses submitted along with the charge sheet. The said C.B.I. Inspector M. Mukherjee was examined as Prosecution Witness No. 1. He relied on and justified the findings accorded in the undisclosed Inspection Report. The persons who made statements before the C.B.I. inquiry, were all examined as prosecution witnesses and their statements were exhibited and relied on by the Prosecution. In the present case in fact the prosecution relied on the said report without disclosing it or making the same exhibit. The petitioner considered the same necessary for the preparation of his defence. 26. So far as the importance and relevance of the statements before the C.B.I. enquiry was concerned, he has submitted as follows. The witnesses, who gave statements before the C.B.I. were cited as Prosecution witnesses. The prosecution relied on the said statements. The prosecution ultimately made these st....
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....this connection he has referred to the Note sheet made Exhibit No. 15 and Minutes dated and of February, 1979. 28. In punishment order against Dey dated 7th of October, 1977 the similar money receipt of Maharaja Travels were not regarded as false. In the said punishment order Day was not charged as having preferred a bill upon the purported view that there was no self drawing Officer although in the case of the petitioner also the amount was sanctioned by the same Officer on the basis of the same Note sheet. If the records of proceeding against Dey were made available, the petitioners could have asked for a better finding in his favour. The said records of the enquiry proceeding against Dey were very vital and essential for the purpose of defence. 29. His next complaint was that the I.J.I.R.A. records were not produced and their officers were not summoned. In this context he relied on various facts, documents and correspondence in following facts, which we shall deal with in detail while dealing with this point. Regarding the importance and relevance of the Records of the I.J.I.R.A. Mr. Mukherjee submitted as follows : Firstly, the note sheet dated 25th of November, 1975 refe....
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....s stated therein as follows:-- "Another opportunity is being given to furnish the same. In the case it is not received by 12 noon on 19.2.79 it will be assumed that you have no defence witness to present." 34. This is contrary to Rules 11(16) and 11(17) but in bills of such threat the petitioner had to submit the names of defence witnesses which he did on 19th of February, 1979. He has submitted that the Rules relating to disciplinary proceedings have to be strictly complied with. In this connection he has relied on the following decisions. In State of U.P. v. Baburam reported in AIR 1961 SC 751 (at P 763); Vitarelli v. Seaton, 1959 US 535 (at page 547); Sukdeb Singh v. Bhagat Ram, AIR 1975 SC 1331; Ramana v. T.A.A.I., AIR 1979 SC 1628, refund Vitarelli v. Seaton by Justice Frankfurter referred to in Service v. Dulles, 354 U.S. 1st Lawyer's Edition 1403, Head Note 3 at Page 1410; A.C. Hongkong v. N.G. Yuen Sheiu (PC) reported in 1983 (2) AER 346 (at page 351 bottom). 35. The next submission was that the enquiry was hastily concluded without providing the petitioner with a reasonable opportunity to defend himself by producing his evidence. In this connection it wa....
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....sibility but a case of actual and real bias. 37. In support of the aforesaid contentions Mr. Mukherjee has relied on the following decisions. In Jagadish Prasad v. State of M.P., AIR 1961 SC 1070 (paras 11 and 13); State of M.P. v. Chintamoni, AIR 1961 SC 1523 (paragraphs 9 and 10); State of West Bengal v. Sailendra Nath Bose, AIR (1964) Cal 184 (DB) (paras 16 and 17); Trilok Nath v. Union of India, 1967 SLR 759 (SC); State of Punjab v. Bhagat Ram, AIR 1971 SC 2335 (paras 7 and 8); Union of India v. Indra Nath, 1978 (I) SLR 1 (Cal) DB; State of U.P. v. Md. Sharif, AIR 1982 SC 937 (para 3); Bhagat Ram v. State of Himachal Pradesh reported in AIR 1983 SC 454; Union of India v. Tulsiram Patel, AIR 1985 SC 1416; Kashinath Dikshita v. Union of India, AIR 1986 SC 2118; General Medical Council v. Spackman, 1943 (2) AER 337 at 345 (HL); Annamunthodo v. Oil Fields Workers Trade Union, 1961 (3) AER 621 at 625 (PC); Ridge v. Baldwin, 1963 (2) AER 66 (HL). 38. Mr. Mukherjee has then submitted that whatever might have been the earlier view it seems to be settled now that violation of principle of natural justice renders the decision void. In this context he has relied on the following dec....
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....l amenities provided by the travel agent". Comment of Mr. Mukherjee was that this was obviously an attempt to fill up the gap and only to penalties the penalty. He has submitted that Rule 12 does not permit the Director to hold an enquiry under such circumstances. 41. He has further submitted that earlier Rule (C.R. 15175(W) of 1979) was disposed of by the Hon'ble Mr. Justice D.K. Sen on 10.7.80. The Department wanted to withdraw and proceed denovo through another officer. Petitioner objected to the same on the ground that this was an attempt to obliterate the evidence already given. The petitioner, however, pointed out it was open to remove the defect by proceeding under Rule 12(1). Further the order dated 10th July, 1980 D.K. Sen, J. granted liberty to D.A. to appoint another I.O. in accordance with rules and remit the proceedings back to him for further enquiry and report. There is nothing on record to show why inspite of his own earlier findings and the order of the Hon'ble Court he did not proceed to remit the case but imposed the punishment of removal immediately. It is true that there was no direction regarding the remand, but liberty was given to the disciplinary....
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....petitioner, as an office bearer of the Association has been making serious allegations against the Director. Sri Mazumdar for obtaining house building loans in violation of the Rules and it was alleged that the charge sheet was the outcome of personal grudge of Sri D.C. Mazumdar. Sri Mazumdar in his A/O. held that the same are "false", "fabricated", 'Mischievous', 'concocted' and 'mala fide' allegations and have been deliberately made by the petitioners with a view to malign him before this Court and/or to mislead this Hon'ble Court. Identical allegations were made by the petitioner in the earlier writ application of November, 1979. Sri D.C. Mazumdar, however in his A/O. in the earlier writ dealt with the said allegations and alleged that the same are mala fide, baseless etc. It will appear from the statement of Sri Mazumdar that there were certain allegations and counter-allegations. Admittedly since in the first writ application, allegations were made against him, there was likelihood of bias by him. 44. The next ground of attack regarding bias of the Disciplinary Authority was that the case of the petitioner and that of Samar Dey was similar. This ....
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....quiry by C.B.I., there was no examination in chief as such but their evidence was merely the production of these statements before the C.B.I., which was without prior intimation. The procedure followed required to be dealt by a quick and trained mind like a lawyer. The scrutiny of the events in course of the enquiry show the unreasonableness of the refusal. Even if there was no motive behind it, extreme prejudice was suffered by the petitioner in consequence thereof. Had there been a legal practitioner there could be a better cross-examination and the proceeding possible would have been in a different shape and take a different course. In this connection he has relied on the following decisions : Vaswani v. Union of India, 1983 (1) Cal LJ 8 para 59; The Board of Trustees of the Port of Bombay v. Dilip Kumar, AIR 1983 SC 109, para 10; Pett v. Greyhound Racing Association, 1968 (2) AER 545 (Lord Denning) at page 549 AIR 1983 SC 109. 46. The next contention of Mr. Mukherjee was that the charges found against him were different from the charges levelled against the petitioner. The charges were three fold. Firstly, that the petitioner falsely claimed an amount of Rs. 1,618.70 by show....
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....avels. The finding appears to be that the petitioner had received payment to which he was not entitled. There is no finding that he falsely claimed Rs. 1,618.70 by showing that he travelled in the 1st class or that he obtained payment by submitting false money receipt and certificate. There is no finding that he "failed to maintain absolute integrity" or that he "acted in a manner unbecoming of a Government servant". The Disciplinary Authority held that it was not proved that amount mentioned in Maharaja's money receipt included any other charge like sightseeing, food, boarding and lodging. 49. It was next submitted by Mr. Mukherjee that in imposing the punishment, the Director had not considered the propriety of the quantum of punishment in relation to the charges levelled and ultimately found. A stand was taken by the D.A. in the present case which was different from the stand taken by him as the appellate authority in the case of Samar Dey which was disposed of by him just a day before i.e. on 18th July, 1980. He has not also considered whether or not there was any evil or dishonest motive on the part of the petitioner. He has submitted that the Writ Court has jurisdictio....
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....ecorded in the "note sheet" wherein it has recorded that the persons had made arrangement of the loan for undertaking such journey for package tour. It was presumed that they had travelled in the special compartment. Enquiries were made with D.D.C.I.S. and I.J.I.R.A. and it was ascertained that L.T.C. claims were settled on the basis of such money receipt. It was suggested that the Controlling Officer may release normal rules on his satisfaction. As Maharaja Travels had charged 1st class railway fare the claim may be restricted to such railway fare. The Controlling Officer expressly agreed. The note sheet does not find any reference either in the statement of allegation or in the list of documents. The charge sheet has been framed in deliberate disregard of the note sheet. Almost all the witnesses were called upon to prove the charges on the basis of their previous statements before the C.B.I. Officer who himself was called upon to depose on the basis of his report but neither the statement of the witnesses nor the report were included in the list of documents. Sri Samar Dey was the prosecution witness though he himself was an accused and he was called upon to dispose possibly with....
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....n any event nothing wrong has taken place. Regarding the question of bias, he has submitted that it cannot be held that there was any such bias at the initial stage merely because of some particular expression used in the charge-sheet as such. So far as the alleged bias at the punishment stage, he has submitted that no such bias can be presumed merely because there was some allegation against the Director in the first writ petition. Regarding the question of punishment, he has submitted that this Court has no power to go into the question as to whether punishment was proportionate to the charges. Regarding I.J.I.R.A. he has stated that during the hearing of the Appeal, all the correspondence between the I.J.I.R.A. and the Director of the counsel has been disclosed. He has further submitted that it was no part of the duty of the I.O. to collect evidence in support of the defence. In any event, he has submitted that the documents, that had not been supplied were not relevant. He also referred to Sovachand Mulchand v. Collector of Central Exist & Land Customs, 71 CWN 700 to which his attention was drawn by us. On the question of "misconduct" he has disputed the correctness of the cont....
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....poration which is violative of the principles of natural justice in matters of domestic enquiry involving termination of service of an employee. We are in agreement with the basic submission of Mr. Garg in this respect, but we find that the relevant rules which we have set out hereinbefore have been complied with even if the rules are read that requirements of natural justice were implied in the said rules or even if such basic principles of natural justice were implied, there has been no violation of the principles of natural justice, in respect of the order passed in this case. In respect of an order involving adverse or penal consequences against an officer or an employee of Statutory Corporations like the State Bank of India there must be an investigation into the charge consistent with the requirements of the situation in accordance with the principles of natural justice as far as these were applicable to a particular situation. So whether a particular principle of natural justice has been violated or not has to be judged in the background of the nature of charges, the nature of the investigation conducted in the background of any statutory or relevant rules governing such enq....
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....ision must be declared to be no decision. 62. In the case of Ridge v. Baldwin and Others, 1963 (2) AER 66 Lord Devlin observed that the decision given without regard to the principles of natural justice is void. It was said that the body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case. 63. In the case of Hoard of High School and Intermediate Education U.P. v. Kumari China Srivastava, AIR 1970 SC 1039 it was observed as follows: "Principles of natural justice are to some mind burdensome but this price--a small price indeed--has to be paid if we desire a society governed by the Rule of Law (para 9)." 64. On the question as to whether it has to be shown that inspite of violation of principle of natural justice the officer charged has been prejudiced, the following decisions were cited by the parties. 65. In the case of Annamunthodo v. Oil Fields Worker's Trade Union, 1961 (3) AER 621 it was a decision of the Privy Council. Therein Lord Denning dealt with the suggestion of the counsel of the respondent Union that a man could not complain of a failure of natur....
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....submitted that non-observance of the rule of audi alteram partum would not prejudice the Company, and thus make no difference. This contention was rejected by the Supreme Court following the decisions in Ridge v. Baldwin and Ors. (ibid) and S.L. Kapoor v. Jagmohan and Ors. (ibid) The passage quoted above from the case of S.L. Kapoor Jagmohan and Ors. was expressly approved in this decision (para 89). The relevant passages are set out here in below:-- "In the renowned case, Ridge v. Baldwin (ibid) it was contended before the House of Lords that since the appellant police officer had convicted himself out of his own mouth, a prior hearing to him by the Watch Committee could not have made any difference; but on the undeniable facts of that case, no reasonable body of men could have reinstated the appellant. This contention was rejected by the House of Lords for the reason that if the Watch Committee had given the police officer a prior hearing they would not have acted wrongly or unreasonable if they had in the exercise of their discretion decided to take a more lenient course than the one they had adopted (para 84)." "A similar argument was advanced in S.L. Kapoor v....
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....0 Supreme Court referred to the decision in the S.L. Kapoor v. Jagmohan and Ors. (ibid) and quoted with approval, the relevant passage therein which we have quoted hereinabove. 71. In the case of Kashinath Dikshita v. Union of India & Ors. reported in AIR 1986 SC 2118 it was held that the appellant had been denied a reasonable opportunity of exonerating himself. In this connection Supreme Court observed that whether or not refund to supply copies of documents or statements had resulted in prejudice to the employee facing the departmental enquiry depends on the facts of each case. The Supreme Court did not accept the submission urged on behalf of the respondent that there was no prejudice caused to the appellant in the facts and circumstances of that case. There the appellant had set out in his affidavit in detail as to how he has been prejudiced and the respondent had not been able to satisfy that no prejudice was occasioned to the appellant. 72. Next we shall examine some of the decisions regarding the object and scope of the disciplinary enquiry proceedings. In the case J of Jagadish Prasad Saxena v. State of Madhya Pradesh reported in AIR 1961 SC 1070 it was pointed out th....
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....rds of assuring that the public rules of conduct which result in benefits and prejudices alike are in fact accurately and consistently followed." 75. In this connection we may point out that we have approached the points involved and have come to our decisions on all the questions raised in the writ petition relying only on the contemporaneous records and documents including those produced by the appellants during the hearing of this appeal. We have not referred to or relied on any explanation offered in the affidavit-in-opposition filed on behalf of the respondents, which was prepared upon legal advice and which are not corroborated or supported by, but in some cases contradict, such contemporaneous documents and records. We are recording the same in view of the fact that in respect of various matters, in the affidavits affirmed by the appellants herein, there are clear departures from what appears from such documents and records. In various cases, what is not in the records, is sought to be introduced by such affidavits for the first time. Affidavits on behalf of the Government or State must be on the basis of records. Natural Justice (Contd.) Non-supply of documents 76.....
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.... Jagadish Prasad Saxena v. The State of Madhya Pradesh, AIR 1961 SC 1070 the petitioner was not given a copy of the report made by the Enquiry Officer in the earlier enquiry on the basis of which the particular disciplinary enquiry was started against the petitioner. It was held that the petitioner had not been given proper opportunity of showing cause as required by Article 311(2) of the Constitution of India. 80. In the case of The State of Madhya Pradesh v. Chintamani Sadashiva Waishampayan reported in AIR 1961 SC 1623 the Supreme Court observed that the documents which the respondent wanted were relevant and would have been of valuable assistance to him in making his defence and cross-examining the witnesses who gave evidence against him. The Supreme Court rejected the contention made on behalf of the appellant that as the enquiry officer was merely exercising his discretion it was not open to the Court to consider the propriety or the validity of his decision. The Supreme Court observed that it would be improper to contend that the infirmities on which the public officer relies, flows from the exercise of discretion vested in the enquiry officer. It was observe that the enq....
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....ed by the Vigilance Department during the preliminary, enquiry, which were not supplied to the respondent but only the synopsis of which was supplied, was that the Government servant will be able to refer to the previous statements of the witness proposed to be examined against the Government servant. Unless the statements are given to the Government servant he will not be able to have an effective and useful cross-examination. It was observed that it was unjust and unfair to deny the Government servant the copies of the documents examined during the investigation and produced at the enquiry in support of the charges levelled against the Government servant. The synopsis does not satisfy the requirement of giving the Government servant a reasonable opportunity of showing cause, against the action proposed to be taken. 84. In the case of Union of India & Ors. v. Indra Nath reported in 1978 (1) SLR 1 Cal certain documents which were not disclosed to the respondent at any stage and not even mentioned in the annexure to the charge sheet, were also proved through the witness. This was one of the grounds on which the Division Bench confirmed the judgment of the learned Single Judge whe....
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.... decided upon by the disciplinary authority should not be confirmed. A written explanation was submitted by the appellant. The enquiry officer after considering the same confirmed the penalty of removal from service. The appellant preferred an appeal to the Chief Conservator of Forest without success. Thereafter the appellant filed a revision petition to the Forest Minister. Before any reply was received to the same, a writ petition was filed and moved before the High Court of Himachal Pradesh and the High Court of Himachal Pradesh dismissed the writ petition. Against that an appeal was preferred to Supreme Court by Special Leave. In this connection the Supreme Court held as follows:-- "It is well-established that the delinquent has a right to cross-examine witnesses examined on behalf of the disciplinary authority and an opportunity to lead his own evidence and to present his side of the case. This is the minimum principle of natural justice which must inform the disciplinary proceeding. To be precise, the provisions contained in the 1965 Rules do make adequate provision for the same. The question is whether it has been substantially complied with." 87. In that case th....
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....ficer. It also included the report submitted by S.N. Banerjee the preliminary enquiry officer and the departmental investigating Officer. What was also withheld from the petitioner was a report submitted by the Special Police Establishment. It was held that it was obligatory on the part of the disciplinary authority to allow all the documents asked for by the delinquent officer, although the relevancy of the documents may not be very clear to the disciplinary officer. The power to refuse access to the Official records should however be used by recording in writing the reasons for such refusal and not by merely stating that the same is irrelevant. It was held that the enquiry proceeding was vitiated in view of the refusal of the disciplinary authority and the Enquiry Officer to give access to the documents to the Officer concerned which were relevant to his defence. Natural justice (contd.)--Non supply of documents-Statements of the witnesses in C.B.I., enquiry. 90. So far as the statements of the witnesses in the preliminary C.B.I., enquiry against the petitioner are concerned, as already pointed out, these were not included in the list of documents which was sent along with ....
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....ses concerned appeared to depose in the enquiry. In the case of State of Punjab v. Bhagat Ram (ibid) the statements of witnesses as examined by the Vigilance Department in the preliminary enquiry were not supplied but only the synopsis was given. It was held by Supreme Court that it did not satisfy the requirement of giving reasonable opportunity of showing cause. In the case of Union of India v. Indranath (ibid), documents which were not disclosed at any stage and which were not mentioned in the annexure to charge sheet were proved through the witness at the Inquiry. This was held to be bad. The right of the charged officer to obtain such copies of statements was re-asserted by Supreme Court in State of U.P. v. Md. Shariff (ibid) and Kashinath Dikshita v. Union of India (ibid). In this connection reference may also be made to Union of India v. Tulsiram Patel (ibid). There is no question of any discretion of I.O. regarding production of such documents, State of Madhay Pradesh v. Chintamani (ibid). Further the charged officer is entitled to inspection of the evidence collected against him before the commencement of the examination of the witness, State of West Bengal v. Sailendra Na....
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....was in violation of the rules of natural justice. It is hardly necessary to add that clause (8) of section 545 of the Bombay Police Manual cannot be held to be bad as contravening the rules of natural justice, (para 9)" 92. Mr. Ginwalla in this connection also relied on the decision in the case of State of U.P. v. Om Prakash Gupta (ibid). The Court therein held that the fact that the Statements of the witnesses taken at the preliminary stage of the enquiry were used at the time of formal enquiry does not vitiate the enquiry if those statements were made available to the delinquent officer and be was given opportunity to cross-examine the witnesses in respect of the statements. In this connection Supreme Court followed the decision in State of Mysore v. Shivabasoppa (ibid). However-it is to be noticed that the Supreme Court pointed out that it was clear from the records of the case that the respondent had been permitted to go through the statements recorded from the witnesses by the Deputy Commissioner and prepare their ' notes; he was supplied with the English translation of those statements and that he was permitted to cross-examine the witnesses in respect of those stateme....
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....y of the report of the Vigilance Commissioner should have been made available to him when he was called upon to show cause why the punishment of reduction in rank should not be imposed upon him. We do not see any justification for the instant request made by the appellant to the disciplinary authority that the report of the Vigilance Commissioner should be made available to him. In the preliminary findings of the disciplinary authority which were communicated to the appellant were those of the disciplinary authority and it was Wholly unnecessary for the disciplinary authority to furnish the appellant with a copy of the report of the Vigilance Commissioner when the findings communicated to the appellant were those of the disciplinary authority and not of the Vigilance Commission. That the preliminary findings of the disciplinary authority happened to coincide with the views of the Vigilance Commission is neither here nor there" (para 4). In our opinion the facts of this case are completely different from the facts of the case before us. Natural Justice (Contd)--Non-supply of documents (Contd.)--Records of proceedings Re:--Samar Dey: 96. The next question to be considered is....
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....examine Samar Dey effectively on this point. Samar Dey worked in the same office. He travelled in the same manner along with Dastidar in the same package tour. He was governed by the same L.T.C. Rules. He submitted similar documents. Similar money receipts were issued by Maharaja Travels. His L.T.C. was sanctioned on the basis of the same note sheet dated 25th November, 1975. There was similar investigation by C.B.I., so far as Samar Dey is concerned. Similar charge sheet was issued against Samar Dey on similar allegations. In this context the relevant portion of the Report of Enquiry against Mr. Samar Dey dated Nth September, 1977 is quoted here in below. 2. "Board features of the case under enquiry and the Articles of Charges. 2.1. Shri Samar Dey, Office Assistant, Export Inspection Agency--Cal. (Jute Scheme) approached to the Joint Director (Tax) Export Inspection Council, Calcutta on 19.8.1975 for L.T.C. advance indicating his desire to go to Pahalgaon, Kashmir with his family members viz. self, mother, wife, sister and daughter. Accordingly be J made an application for advance with a Tour programme in support thereof, duly sanctioned by Shri P. Roy Chowdhury,....
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....Officer was as follows:-- 8. Findings of the Inquiry Officer with reasons for the conclusion. 8.1. Shri Samar Dey did not submit any bill. The bill was drawn by this office on the basis of evidence produced. The gross evidence namely the money receipt of M/s. Maharaja Travel for Rs. 2,385/- covering the said journey is genuine. Shri Dey cannot be charged for the falsification of details in the money receipt which was duly printed and granted to other customers also in (8-1,) 8.2. However, Shri Dey should not have mentioned 1st class in his tour diary rather he could have mentioned Special compartment in his tour diary. Since he has paid such amount to M/s. Maharaja Travel against a genuine money receipt he could seek sanctioned of Controlling Officer relaxing the normal rules with a view to getting reimbursement to the maximum admissible extent. 8.3. In view of what has been stated in the note sheet of Accounts Section dated 25.11.1975 that they had taken into consideration before admitting the claim, the fact that such type of claims were being approved by other Govt. Offices viz. D.G.C.I. & S. Calcutta, and the point was also considered by the ....
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....er initiating the note sheet for re-imbursement of this claim had fully explained this point to the Controlling Officer, who knowing the prima facie of the case has exercised the discretionary power to relax the normal rules. 104. Besides above, Shri Samar Dey has also claimed that he has brought all aspects of the case to the notice of the Controlling Officer before and after the journey was over. Since the Controlling Officer, Shri P. Roy Chowdhury did not respond to the summons, the veracity of Shri Dey's statement could not be proved. However, from the note sheet indicated above. there are ample grounds to deduce that the Controlling Officer after considering all aspects has passed the claim using his discretion relaxing the norms. Submitted please. Sd/- P.K. Chatterjee Inquiry Officer Deputy Chief Executive ETA-Cal. 105. In Samar Dey's case after the Report, it was remitted back to the I.O. by an order dated 30th of September, 1977 which is set out here in below:-- Findings of the Disciplinary Authority on the Inquiry against Shri Samar Dey Office Assistant, Export. Inspection Agency, Calcutta (Jute S....
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.... take a lenient view and impose a minor penalty. Accordingly, I am ordering the following:-- (i) Shri Samar Dey should pay back the amount drawn by him in excess of the actual second class fare and (ii) one increment shall be withheld for one year S. Lakshmikanthan Addl. Director 7 October, 1977 ORDER Whereas the Inquiry under Rule 11 of the Export Inspection Agency Employees (Classification, Control and Appeal) Rules against Shri Samar Dey, Office Assistant, Export Inspection Agency, Calcutta (Jute Scheme) has been completed and it is established that the delinquent official derived a pecuniary advantage by making a wrong declaration in his L.T.C. tour diary, the following minor penalty is imposed: One increment shall be withheld for one year. Further, Shri Samar Dey should pay back the amount drawn by him in excess of the second class fare. S. Lakshmikanthan Additional Director 111. It is apparent from the above that if the petitioner had been given access to the records of the enquiry proceedings against Samar Dey, including the report, subsequent noting of the Inquiry Officer therein, the order of rem....
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....ndia Rules in granting and settling TA/DA claims including the L.T.C. claims to the I.J.I.R.A. Staff. They were also requested to give confirmation regarding "the present position and with special reference to the year 1975". It was not recorded in the said letter or any contemporaneous document for what purpose such visit was made by him upon receipt of the letter of the petitioner and what was the nature of such discussion. Thereafter on the morning of 6th of March, 1979 the I.O. had a telephonic conversation with the Jt. Director of I.J.I.R.A. This is recorded in the letter of 6th March, 1979 written by the I.O. to the Jt. Director of I.J.I.R.A. Again, it does not appear from the said letter or any other contemporaneous document as to what was the necessity of such telephonic conversation and what transpired during such conversation. I.O. wanted the Jt. Director to enlighten him on this subject. On 9th March, 1979 the Jt. Director of I.J.I.R.A. wrote a letter to I.O. wherein it was stated, inter alia, that IJIRA settle L.T.C. claims of staff according to Government Rules and that this practice was being followed from the year 1975. The letter also dealt with TA/DA and entitlemen....
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....aims of staff according to the Government Rules. This view is now subsequently being changed obviously at the persistence and persuasion of the I.O. 115. On the 23rd March, 1979, the I.O. wrote to the petitioner stating that regarding the records of I.J.I.R.A. and the depositions of I.J.I.R.A. is neither a Government body nor they are obligated to settle the L.T.C. claims of their staff as per Government Rules. He was informed that hence it has been decided that the documents or deposition of officer belonging to a non-governmental organisation will be no use so far as this enquiry was concerned. Very conveniently no reference was made to the correspondence or the visit or the conversation made privately by the I.O. with I.J.I.R.A. particularly about the earlier stand of I.J.I.R.A. as expressed by their letter dated 9th March, 1979 that L.T.C. claims of their staff were settled according to Government Rules. By his letter dated 27th March, 1979 the petitioner protested against such decision of the I.O. and pointed out that in the note sheet dated 25th November, 1975 by which his and another L.T.C. claims were prepared by the Accounts Department and sanctioned by the Controlling ....
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.... tour conducted by M/s. Maharaja Travels, Calcutta. I shall be grateful if you kindly let us know the documentary evidence and certificates etc. that are required to be submitted by your staff for reimbursement of L.T.C. claims when they have availed of the same on package tour conducted by the travel agent. This has reference to my discussion with you today." 116. Promptly came the letter of 21st May, 1979 from the said Director of I.J.I.R.A. who stated as follows:-- "In response to your enquiry, the documentary evidence and certificates that are required to be submitted by our staff for reimbursement of L.T.C. claims are as follows: 1) A signed statement from the staff member regarding the particulars of his travel. 2) Such other documents/certificates money receipts from the Railway or accredited travel agents as will convince us of his actual class and mode of travel. In cases where we have not been convinced by the documents produced, either at the time of their production or subsequently the claims have not been entertained and actions taken to obtain refunds. This also includes the type of package tour conducted by travel agent....
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....n my earlier letters Further, it is learnt from some reliable sources that between the period from 7.3.79 (the day you declared the hearing of the enquiry as closed) and 26.5.79 you had some dialogue and also written communications with I.J.I.R.A. regarding I.T.C. claims of the person whom I desired to examine as defence witnesses and as such your are requested kindly to supply me the copies of the said communication and also arrange to call Shri J.M. Mitra, Secretary of I.J.I.R.A. as another defence witness in addition to those already named." 119. Inspite of the same, no such copy of any such communication was provided to the petitioner. On 11th of June, 1979 the I.O. wrote a letter to the Secretary, I.J.I.R.A. referring to the letter of the petitioner dated 19th of February, 1979 referred to above. The names of eight Officers were also given there but not the name of Shri J.M. Mitra, Secretary, I.J.I.R.A. as requested by the petitioner in his letter dated 30th May, 1979. 120. Then comes an interesting stage. From the minutes of Enquiry held on 19th June, 1979 it appears as follows: "Till 11.15 A.M. none of the witnesses requested from I.I.T.R.A. did prese....
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.... the appellant that the I.O. had no duty to call for any document or call any person to give evidence if he did not belong to the department concerned. In our opinion it is the duty of the I.O. to see that a fair enquiry takes place. It is certainly his duty to take all necessary steps in the matter in respect of any document or witness in the custody or possession of any person or authority, whether inside or outside the Government. No power of issuing summons has been conferred even so far as the documents and witnesses belonging to the Government departments are concerned. The duty of the I.O. in such a case is to see that all necessary efforts are made for production of the same. In this case no serious attempt was made by the I.O. On the other hand he entered into secret correspondence, made private visits to and had telephonic conversation with the officials of the I.J.I.R.A. from time to time. All these were kept concealed from the petitioner. Even when the letter of 9th of March, 1979 was received by him from I J.I.R.A., which clearly stated that such L.T.C. claims were paid according to the Government Rules, this was not disclosed to the petitioner. This would have certain....
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....er this no reasonable person could possibly contend that this would have no relevance to the enquiry. The I.O. was fully aware of the same and that is why he behaved in such a clandestine fashion. He has disgraced the role he was appointed to play. In our opinion there has been violation of the principle of natural justice and no reasonable opportunity was given to the petitioner. Further, in our opinion the I.O. was biased. Natural Justice (contd.) Non-supply of documents (contd.) Maharaja Travels: 124. The next grievance of the petitioner is that the documents of Maharaja Travels were not caused to be produced. Sri S. Sengupta a partner of Maharaja Travels, and who was one of the persons who made statements to C.B.I. was examined as one of the Prosecution Witnesses on 16th of February, 1979 when his statement before C.B.I. was exhibited. He was also cross-examined and re-examined on that date. It is alleged in the petition that the Enquiring Officer directed one of the witnesses viz. Sri S. Sengupta of M/s. Maharaja Travel to furnish the following information and records:--(1) Whether he had any rate for package tour from Calcutta to Kashmir other than the two rates mention....
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....ation and documents, he would be in a position to prepare his written defence statement. 125. In reply thereto by a letter dated 26th May, 1979 I.O. informed the petitioner that he had neither received the information nor the records from Maharaja Travels. It was further stated that efforts were made by I.O. for production of such records in the enquiry. It was further stated that he was not in a position to produce such records in the enquiry. What efforts had been made had not been disclosed either in the said letter or any other contemporaneous document. In our opinion, it was the duty on the part of the I.O. to make all attempts for the purpose of obtaining the necessary information and necessary documents from Maharaja Travels though it is not a Government concern. This case involves the package tour arranged by Maharaja Travels and the question was what was done by Maharaja Travels in respect of the petitioner and others including Samar Dey. He had applied for L.T.C. on the basis of such package tour and particularly the money receipt of Maharaja Travels. One of the grievances of the petitioner was that he has been misled by Maharaja Travels. According to the petitioner, t....
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....ion of the prayer without giving any reason was not justified in the facts and circumstances of this case. The reasons put forward by the petitioner were justified reasons. As the petitioner sought to call Sri Roy Choudhury in view of such statement made by him-such prayer should have been allowed particularly when it is nobody's case that Roy Choudhury was not available. By such arbitrary and peremptory refusal, the defence of the petitioner was prejudiced. In our opinion such rejection amounts to violation of the principle of natural justice. Natural Justice (contd.) Refusal to allow further examination of Sri B. Sarkar, 128. The next complaint of petitioner is with regard to the refusal of the I.O. to allow the prayer of the petitioner made on 7th of February, 1979 requesting that Sri B. Sarkar be directed for further examination on some specific points. Sri Sarkar, who was P.W. 5 in the enquiry, was examined and cross-examined on 6th of February, 1979. On the very next day, such request was made by the petitioner on the ground that in reply to the question made by P.O. during re-examination (though objected to by the defence counsel) it was observed that the answer gi....
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....s of 7th March, 1979 it would appear that the I.O. requested the P.O. to submit his written brief in support of his prosecution so as to reach the enquiry Officer by 20th of March, 1979 stating that "the bearing in this case was concluded". Before this was recorded the petitioner was requested in the said meeting to state whether or not he wished to admit any of the charges in view of the evidences marshalled against him by the Disciplinary Authority and it was recorded by the I.O. that the petitioner did not admit any of the charges. The petitioner submitted the list of the witnesses on the 19th February, 1979 but no step was taken by I.O. to arrange for the production of the witnesses. As would appear from the rules aforesaid, question of submission of any written brief by the I.O. at that stage could not and did not arisen. As already stated, after the close of the case of the Prosecution i.e. after the P.W. witnesses' examinations were over, the next step was that the charged officer shall be called upon to state his defence. A copy of the statement of defence if it is in writing is to be given to the Presenting Officer. Only thereafter, that the evidence on behalf of the c....
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....n the background of the conduct of enquiry by the I.O. as a whole which we have already discussed and which we shall also, discuss hereinafter. These Rules are meant to set out a norm for providing adequate safeguard to the petitioner. In our opinion the Inquiring Officer acted improperly and illegally in blatant and flagrant defiance and violation of the Rules. The enquiry was a sham enquiry. It had prejudicially affect the petitioner's chance for having a proper hearing to prove his innocence. Bias--Inquiry Officer. 132. The next question is whether the Inquiry Officer was biased. In this context we may point out that in the real question is not whether there was actual bias but whether there was a real likelihood of bias. As pointed out he had entered into a private correspondence, had several private telephonic conversations and private visits with I.J.I.R.A. without informing the petitioner. 133. There is another aspect of this matter. In this case from time to time the Inquiry Officer has been contacting the disciplinary authority. We are unable to accept the contention of Mr. Ginwalla that because the Inquiring Officer has been appointed by the disciplinary auth....
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....dictate of the Disciplinary Authority or whether he had applied his mind independently. In this connection we shall rely on the records produced on behalf of the appellant at the time of hearing of this appeal which was not disclosed before. The Inquiring Officer was appointed by an order of the disciplinary authority dated 4th August, 1977. By his letter dated 18th August, 1977, he requested the Disciplinary Authority to appoint the Inquiring Officer. By a letter dated 19th September, 1977 addressed to the Disciplinary Authority he stated that certain documents were necessary to start the enquiry. He again wrote a letter on 29th September, 1977. This refers to certain discussions he held with the Director. He sought to seeked certain direction regarding holding of the enquiry. By another letter dated 5th December, 1977 he referred to the preliminary enquiry held on 3rd of December a copy of the records of which was sent to the D.A. He has referred to the question No. 4 in the said enquiry whereby the petitioner has asked for a number of documents as referred to above. He also referred to reply to 4(b) and 4(f). The Inquiring Officer sought for the "guidance" of the Director in thi....
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....O. requested the D.A. for a clarification as to whether the original documents should be typed and handed over to the persons concerned or they should be only shown to them and they may be allowed to take extracts from those. It was further stated that on the date of writing of the said letter the I.O. had received a letter each from Shri Kalyan Kumar Mitra and Shri Amalendu Dastidar copies of which were forwarded therewith. It was stated that from this letter it will be seen that they had now agreed for 2 officers of EIC/EIA as their defence counsel in Shri G.C. De, Joint Director EIC, Calcutta and Shri I.P. Kapoor, Asstt. Director EIA, Calcutta (Jute). The I.O. also stated that he had also received a letter on that day from Shri B.D. Roy requesting for permission for Shri A.K. Basu DD (Admn.) to assist him in this case. The copy of the letter was enclosed. The I.O. expressed that he felt that the request of Shri Roy can be acceded to since similar request for the delinquent officers had been accorded to. He also asked for advising him as to whether Shri Mitra and Shri Dastidar should be informed of granting permission to Shri B.D. Roy. He stated that he will be grateful for the p....
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....se. He asked for the advice of Mr. Majumdar in the matter. By an express telegram dated 29th November, 1978 to Mr. Majumdar, the I.O. asked him for telex instructions immediately to petitioner informing that separate enquiry means separate for Dastidar and Mitra and not with respect to Samar Dey. By his letter dated 18th December, 1978 the I.O. sent him a copy of the proceedings of the enquiry held on 16th of December, 1978. He also enclosed the original of the representation of the petitioner dated 15th of December. Copy of his letter permitting the petitioner to Defence Counsel was also enclosed. Similar action was taken in respect of subsequent proceedings. By a telex dated 14th February, 1979 the I.O. was asking the D.A. as to whether prayer for postponement of the proceedings as made by the petitioner on the ground that one of the Defence Counsel was on leave, should be allowed or not. The petitioner wrote a letter dated 27th of March, 1979 to the I.O. This was with reference to I.O.'s letter dated 23rd of March, 1979 written in reply to the D.A.'s letter dated 19th of February, 1979 which was delivered to the petitioner on the late afternoon of 23rd of March, 1979. Th....
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....owing information and documents : (a) whether M/s. Maharaja Travel had any rate for package tour from Calcutta to Kashmir other than the two rates mentioned in his depositions i.e. Rs. 700/- per adult and Rs. 600/- per adult (vide the proceedings of the hearing held on 16.2.79), (b) whether he received any amount from our party in addition to the total amount of the money receipts bearing numbers 120, 121 and 122 issued to the party (vide the proceedings of the hearing held on 16.2.79) (c) whether the amount stated to have been refunded to Shri K.K. Mitra at Kashmir had been entered in the Cash Book of M/s. Maharaja Travel as refund (vide proceedings of the hearing held on 16.2.79), (d) Current Money Receipt book and the relevant cash book of M/s. Maharaja Travel for verification. 136. The petitioner submitted that since the said information and the documents were essential for preparation of his defence I.O. was requested to supply the petitioner with those information so as to enable him to prepare written defence statement. It was further stated that the enquiry had not yet been concluded and after examination of the defence witnesses as mentioned earlier and receiving the ab....
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....d to please the D.A. who was his superior authority. He also did not want to displease C.B.I. at whose instance the enquiry was initiated. This particular conduct of I.O. along with others clearly show that the I.O. did not really apply his mind independently and properly. His conduct and attitude throughout does not disclose an intention to hold a proper and real enquiry. Such an enquiry does not require that the procedure to be followed must be the same as followed in a court of law but the principle that "justice must not only be done but seem to be done" is not applicable in respect of the ordinary Courts of Law only. It must be made applicable also in respect of any authority, administrative or quasi judicial, whose decision may prejudicially affect the rights or property of a citizen. His report also reflects his state of mind. It does not record the correct state of facts. It does not properly record the course of proceedings before him. The objections raised have not been properly dealt with by him. It may be pointed out that after a cursory reference to the evidence before him, in an one line sentence he gave his finding. Only after coming to such finding he condescended t....
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....circumstances of this case. 139. The next question is even if such violation is established, is it still the duty of the charged officer to prove that he has actually suffered prejudice as a result of such violation and if so whether such actual prejudice has been proved in the facts and circumstances of this case. We shall take up this question in relation to the violation of the principles of natural justice first. 140. In our opinion where there has been a violation of the principles of the natural justice, there is no proper or reasonable bearing and accordingly the proceeding are a nullity. In that case the charged officer does not have to prove further that in fact be has suffered prejudice as a result of such violation. The question is not of actual prejudice but of fair play. As pointed out by House of Lords in the case of General Medical Council v. Spackman, (1943) 2 All ER 337 it is in material whether the same decision would be arrived at in the absence of the departure from the essential principles of natural justice. As Lord Denning pointed out in the Privy Council decision of Annamunthodo v. Oil Field, Workers' Trade Union, (1961) 3 All ER 621 if there is de....
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....isions is illegal. Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331. Reference may be made in this connection also to Ramana v. I.A.A.I., AIR 1979 SC 1628. However, if there is any solitary or isolated violation of a Rule which is not mandatory in nature then that may not violate the proceeding as a whole S.K. Banerjee v. State of West Bengal (ibid) R.C. Sharma v. Union of India, AIR 1976 SC 2037. But in the present case there was gross violation of such Rules in various aspects which Rules are the basis of a fair enquiry. This along with the violation of natural justice on various counts has in our opinion caused prejudice to the charged officer because it was not a fair trial. Refusal of Disciplinary Authority to remand: 143. Next we shall deal with the complaint of the writ petitioner as to the stand taken by the Disciplinary Authority in not remanding the case pursuant to the liberty given by the Court. Whereas it is quite clear that there was no direction given by the learned trial Judge in the first writ petition, however a liberty was given to that effect, that is, it was left to the discretion of the D.A. However such a discretion was to be properly exercised. What he did wi....
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.... wanted to examine Shri Sarkar and Biswas again only to fill up the gap in the evidence and such examination is not really for the purpose of giving them further opportunity to substantiate by defence. Earlier vide this office letter dated 14.9.79, those two officers were informed that if they were not willing that two Officers (Shri Sarkar and Biswas) would be further examined on behalf of the disciplinary authority, then these two officers would not be examined and a conclusion will be drawn up by the undersigned on the basis of the records and evidence already produced in the inquiry. Keeping this in view as well as the submissions made by these two officers in their writ petition referred to above, before the Hon'ble High Court and alto the legal advice tendered by and also the fact that the submission made by Shri S.S. Ray, learned Sr. Advocate before the Hon'ble Mr. Justice D.K. Sen on 10.7.80 that the entire inquiry may be withdrawn and a fresh inquiry be made by appointing another Inquiry officer under the rules was opposed by the petitioners in the Hon'ble High Court on the round that it would destroy the evidences on record in the inquiry which were in favour ....
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....of the liberty given by the Court to exercise his power to remand, he acted hastily and on extraneous grounds decided not to remand but passed an order of punishment immediately. 146. On the question of bias, so far as the disciplinary authority is concerned there are two aspects of this matter. So far as the bias regarding initiating the proceedings are concerned was may point out that this was based mainly on the language of the charge sheet. We shall examine this aspect of the matter latter separately. It was also alleged in the petition that the petitioner was an office-bearer of the office union and that the petitioner took part in the complaint made against the director. In this context we refer to paragraph 14 of the petition which is set out here in below:-- "Your petitioner states that your petitioner was the Joint Secretary of All India Export Inspection Council/Agency Officer's Association which was a registered Society. The petitioner and other office-bearers of the said Association incurred the displeasure of Sri D.C. Mazumdar, Respondent No. 4 herein, who was previously holding the post of Senior Additional Director as they pointed out certain illegali....
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....#39;ble Court. I deny that at any stage whatsoever, I had the intention to shift the office of the Export Inspection Council From Calcutta to Delhi. I also deny that I have committed any irregularity in the matter of House Building Advance. I am not aware that the All India Export Inspection Council/Agency Officers' Association have ever pointed out any alleged irregularity on my part in the matter of drawing of House Building Advance as alleged by the petitioner. The allegations that the alleged office-bearers of the said unrecognised Association were not in my good book is wholly misconceived and I emphatically deny the same. As a matter of fact, the All India Export Inspection Council/Agency Officers' Association had not been recognised by the Export Inspection Council or Agency. In the Export Inspection Council and Export Inspection Agencies, there are 3 Officers' Association out of which only one officers 'Association, namely, All India Export Inspection Officers' Association, has been recognised by the Export Inspection Council on 11th October, 1979. I further say that according to my information and knowledge, the allegations now levelled by the petitione....
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....such contention because in that event in every case before some final order is pasted the aggrieved person may challenge the proceeding in a writ petition by making some allegation against the Disciplinary Authority and if that was rejected or withdrawn may subsequently challenge the final order on the ground that it was passed because of the allegations made against the disciplinary authority in the first writ petition. Accordingly we do not entertain this contention. Order of punishment--whether harsh and/or disproportionate 150. There is merits in the contention on behalf of the petitioner that the punishment inflicted on him was harsh and disproportionate. In our opinion it is open to a Writ Court to interfere with an order for punishment if the same is found to be harsh and disproportionate. Reference may be made in this connection to R. v. Barely, 1976 (3). All ER 452 at 456 and Bhagat Ram v. State of Himachal Pradesh, AIR 1983 SC 454 (para 15). As we have pointed out, the case of the petitioner and that of Samar Dey was similar. By this letter dated 4th July, 1979 the Director informed that the appeal would be considered after submission of the report of inquiry agains....
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.... this connection reference may be made to State of Punjab v. Dewan Chunilal, AIR 1970 SC 2086, Collector of Customs v. Rebati Mohan Chatterjee, 1976 CHN 792 and Mr. R. Govindan v. Director of Government Examinations & Anr., 1978 SLR 637. Assistance of a lawyer-- 151. On the question of assistance of a lawyer, ordinarily unless the Presenting Officer himself is a legally trained person or when the enquiry involves complicated question of facts or law refusal of lawyer is not a ground for holding the proceeding to be in violation of the principles of natural justice. K.C. Tandon v. Union of India, 1974 SC 1589 at 1593 (para 17). However in the present case simultaneous proceedings were going on against the petitioner both before the Disciplinary Authority and under the Criminal Procedure Code which might have likelihood of a great repercussion. The petitioner's future career, who was holding a high post at the relevant time, was at jeopardy. As it actually happened, in view of the ultimate order of punishment, his career with the Government has come to an end. This is one of the matter which should have been taken into consideration by the proper authority. Reference may be....
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....ule or no rule the services of a professional lawyer should be made available at a departmental enquiry when asked for was not accepted. What was held in that case was that the disciplinary authority brushed aside the request of the appellant before the Supreme Court on a wrong ground completely ignoring the circumstances which were relevant. It was therefore said at page (490 of SCR--(at page 2180 of AIR SC). "Therefore that authority clearly failed to exercise the power conferred on it under the rule. It is not unlikely that the Disciplinary Authority's refusal to permit the appellant to engage a legal practitioner in the circumstances mentioned earlier had caused serious prejudice to the appellant and had amounted to a denial of reasonable opportunity to defend himself" (para 22). In Tara Singh v. State of Rajasthan, (1975) 3 SCR 1002 : AIR 1975 SC 1487 the importance which is to be attached to the note appended the rule has been emphasised by Ray, C.J. delivering the judgment on behalf of the Division Bench of this Court to which one of us (Krishna Iyer, J.) is a party, in these terms:-- "The notes are promulgated with the rules in exercise of leg....
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.... for good reasons. The appellant was not entitled under the Rules to the assistance of an advocate during the course of the enquiry. The learned Judges were right in pointing out that all that the appellant had to do in the course of the enquiry was to defend the correctness of his assessment orders. Clear indications had been given in the charge with regard to the unusual conduct he displayed in disposing of the assessment cases and the various flaws and defaults which were apparent on the face of the assessment records themselves. The appellant was the best person to give proper explanations. The circumstances in the evidence against him were clearly put to him and he had to give his explanation. An advocate could have hardly helped him in this. It was not a case where oral evidence was recorded with reference to accounts and the petitioner required the services of a trained lawyer for cross-examining the witnesses. There was no legal complexity in the case. We do not, therefore, accede to the contention that the absence of a lawyer deprived the appellant of a reasonable opportunity to defend himself" (para 17). 155. The other aspect of the matter is that this case proceeded o....
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....ime of payment of their wages and also from assisted emigrant labourers when they want to sign 'J' forms and also from non-workers in the lines." The charge sheet further added that Sri Allison had checked on the information furnished to him against Gohain and had been satisfied that Gohain had been guilty of the said misconduct. Gohain was, therefore, called upon to offer his explanation why action should not be taken against him for taking bribes from labour on the estate The charge concluded with suspension of Gohain with immediate effect. The Supreme Court in this context observed that this charge, no doubt, is not happily worded and the expressions used in it would seem to indicate that the Disciplinary Authority had already made up his mind that the employee concerned was guilty of the misconduct set out in charge. However, the Supreme Court held that in the circumstances of this case it did not purpose to base their decision on this infirmity in the charge. The Supreme Court merely assumed that the charge intended to say that the Disciplinary Authority was prima facie satisfied that a case for enquiry had been made out against the charged officer. 158. The decisio....
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....arges will not ipso facto establish a closed mind. In my view, Mr. Das is justified in his contention that the charge sheet read with memorandum makes it clear that the allegations were stated and on the basis of the allegations the charges were framed and the allegations on the face showed that the petitioner was guilty of the said charges. But the said documents do not establish that the disciplinary authority had absolutely made up his mind about the guilt of the delinquent." 160. In the case of the Collector of Customs Calcutta and Ors. v. Biswanath Mukherjee, reported in AIR 1972 Calcutta 401 the expressions used in the charge sheet were "Shri B.M. ..................was found to be in possession of assets.....................giving rise to a presumption that........................". The trial court quashed the order in disciplinary proceedings on the ground that the words 'found' and giving rise to presumption' indicated bias of the Collector who himself was the punishing authority and the whole proceedings were vitiated the charge being defective and being in violation of principles of natural justice. On appeal the Division Bench held that the two words '....
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.... authorities what the form of the changes of the expression used do not disclose any bias or and unfair or closed mind, there also seem to exist some misapprehension about the form of the charges. The charges should be definite and clear and it would not be bad so long as it is made clear that the statements in the form of charges are charges and not findings. In the instant case if the charges are read as a whole along with the memorandum of which it forms a part, they do not seem to imply a finding already made or indicate a close mind. The addition of the two adjectives 'highly irregular' and 'serious misconduct' in the charges seem to be indicative of the gravity of the charges rather than of a closed mind on the part of the authorities." 162. In the case of Sunil Kumar Mukherjee v. State of West Bengal reported in 1976 (2) Cal LJ 529 the charge sheets read as follows: "Charge I: That the said Sri Sunil Kumar Mukherjee, while functioning as M.V. Inspector (Technical) P.V. Deppt. Calcutta during the period from 1965 to 1967 was found in possession of assets disproportionate to the known sources of his income to the extent of Rs. 10,061.02 in ....
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.... which is utterly disproportionate to the known sources of your income and the acquisition of which property has not been satisfactorily accounted for by you with the result that there is warrant for the reasonable inference that the said property was acquired by you in criminal misconduct in the discharge of your official duties. (2) That the declaration of assets as they stood on different dates......are materially incomplete and/or misleading and/or false inasmuch as the sum of Rs. 5,000/- stated to have been spent by you after August, 1961 in constructing three living bed rooms and one varandah on the first floor of the building situate at 15 (subsequently numbered 15B) N.N. Ghosh Lane, Tollygunge was mentioned by you in the aforesaid declaration of assets......... (3) That the declaration of assets on.........are materially incomplete, misleading and/or false. (4) That you are guilty of contravention of Rule 15(2) of the West Bengal Governments' Conduct Rule, 1959 inasmuch as the leasehold land in Siliguri held in the name of your wife was sold...... without previous knowledge or sanction of you appointing authority. And where as for the aforesai....
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....tated--"And whereas for the aforesaid reasons of you are prima facie unsuitable to be retained in the service of Government And Whereas on the grounds set forth above it is proposed to impose upon you the penalty of dismissal from the Civil Service of Government under clause (vii) of Rule of the Bengal Subordinate Service (Discipline & Appeal) Rules, 1936" it was held that in view of such expressions in the charge sheet about the guilt of the petitioner with the proposal for the dismissal of the petitioner and the final order of dismissal this case was prejudiced. It was held that mere proposal of several punishments in the charge sheet will not by itself indicate that the disciplinary authority was biased or prejudiced against the delinquent as it Indicates the flexibility and openness of mind of the disciplinary authority. This will riot vitiate the disciplinary proceedings where in fact the enquiry is held according to the rules and principles of natural justice. It is however desirable that punishments should not at all be mentioned in the charge sheet consistent with provisions of Article 311(2) since proposal for punishment arises only after charges are established. The posit....
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....rwise this would result in untold and unlimited misery to all Government employees and a been to other Government or non-Governmental employees who may want to prejudice the career of the employee concerned. Therefore, it is fit and proper that before such a formal statutory disciplinary inquiry is ordered, some preliminary enquiry be made to ascertain whether there is even a prima facie case, that is, a case for a disciplinary enquiry under the Rules. Of course, there may be some cases where there is already such material and there is no necessity of holding a formal preliminary enquiry. Further absence of such preliminary enquiry does not by itself vitiate a proper domestic enquiry if it is otherwise valid an proper. The admitted position is that in various cases firstly a fact finding enquiry is held in some of which investigation is made by the C.B.I. Upon the findings of these bodies that a decision is taken whether to initiate a disciplinary enquiry. This is a salutary principle and in our opinion where it is shown that an enquiry is sought to be held after such preliminary enquiry, the question of a "closed mind" cannot arise. Mere use of some expression in the charge sheet ....