9911796707
TMI Blog1983 (11) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... 's order dated 28th April, 1981, has been discharged against respondent No. 9, Shri Ghanashyam Prosad Gupta. 2. The petitioner has stated that in or about December, 1945, he duly entered into the services of the Department of Food and Supplies, Government of West Bengal (hereinafter referred to as the said department), as Inspector, Food and Supplies through a competitive examination. It was his case that throughout his career and tenure he has discharged his duties and obligations faithfully, diligently and to the satisfaction to all his superiors and in fact, his service career is free from any blemish whatsoever. He has stated that considering his commendable services as rendered and more particularly during the course of disasters which occurred in 1950, he was temporarily promoted to the post of Inspector of the said department but he was subsequently reverted from such posting without any charge of any allegation. He has stated to have proved himself worthy of his appointment and has served the department in the satisfactory manner as indicated hereinbefore and as such, he has also claimed to have been promoted to the post of Inspector of the said department in or abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the same to the respondent No. 5 for irregularities and illegalities as detected, The petitioner has alleged that Shri Parimal Ghose was an influential member of a particular political group and as a result of the detection and checking as held by the petitioner, he became inimical with him and openly threatened him to exert his political influence and to commit mischief so far the petitioner's service career was concerned. It should be mentioned here that although the petitioner has stated that the said Shri Ghose belonged to a particular political party and which according to the petitioner was an influential party, he has not mentioned the name and colour of such political party. 4. It has been alleged by the petitioner that because of the circumstances as mentioned above, in or about May, 1974 an order was passed in was collusion and connivance with respondent Nos. 4 and 5 whereby he transferred from his posting and was posted in the District of West Dinaijpur. Such order of transfer was made on 23rd May, 1974 and the petitioner was released on 5th June, 1974. This order of transfer, according to the petitioner, was out-come of his detection of mischief caused in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m that the Governor proposed to hold an enquiry in a common proceeding under Rules 9 and 10 of the said Rules against Shri Benoy Bhusan Chakraborty, formerly Sub-Divisional Controller of Food Supplies, Jalpaiguri, and Samarendra Narayan Ghosh, Inspector Food and Supplies now posted at Darjeeling and Molay Pada Chakraborty Lower Division Clerk of the Sub-Divisional Controller Food Supplies Jalpaiguri. The petitioner was also served with the articles of charges, alongwith the said order. Those articles revealed that the petitioner, while functioning as an Inspector of Food and Supplies in Raiganj Zone of Jalpaiguri District in the month of January, 1968, submitted a misleading report of enquiry in connection with an application for food-grain license made by one Ghanashayam Prosad Gupta and suppressed material facts from the said report and such conduct on his part was improper and unbecoming of a public servant and violative of Rules 3 and 4 of the West Bengal Government Servants' Conduct Rules, 1959 and on 28th December, 1967 on Shri Ghanashyam Prosad Gupta, son of late Saraju Ram of Raiganj District Jalpaiguri submitted an application to the Block Development Officer, Raiganj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sciplinary authority shall be competent to impose any of the penalties mentioned in Rule 8 ibid, and 4. That the procedure prescribed in Rule 10 ibid shall be followed in such common proceedings. 7. The petitioner has claimed the departmental proceedings as short to be initiated to be a pretended one, based on no materials or any cogent evident of facts and it was his further assertion that the entire initiation was void ab initio and absolutely without jurisdiction. He further claimed that the allegations purporting to form the basis of the concerned charge sheet of the statement of imputation being non est, charge sheet was also void, ab initio and bad. 8. It was his case than on receipt of the charge sheet he submitted a petition as in Annexure I , in terms of said rules asking for inspection of the documents as mentioned in Annexure III to the charge sheet and so also some other additional documents which were not mentioned therein and he felt that those documents would be material and relevant for the purpose of his defence. He of course, categorically denied that he was guilty of any charges or there was any basis for the imputation of any misconduct against him. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No. 6, which he has obliged to make in the facts and circumstances of the case. 10. The deponent has also stated that Sub-Divisional Controller of Food and Supplies, Siliguri found some fraud in the checking done by the petitioner on 2nd November, 1973 and it was not a fact that the petitioner was authorised to renew any ration card. It has been stated that the petitioner was authorised only to replace old and defaced cards. The checking works as alleged by the petitioner, has been stated by the deponent not to have been conducted or undertaken by him individually but it has been stated that such checking was done jointly by one C.I.F.M.S. and the petitioner. The deponent has further stated that the petitioner in fact, did not report any abnormal shortage to the respondent No. 5 and it was not a fact that the said respondent No. 5 stopped supplies to the concerned shops on the basis of the report. It has been admitted that the petitioner submitted a report to the S.C.F.M.S. on 3rd November, 1973 regarding the M.R. Shop of D.N. Sikdar of Khokagram and the said Shri Sikdar surrendered his M.R. Shop which was accepted. But it has been denied that so far the suspension of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Sub-Division. That being the position the deponent has claimed that matters of grave and vital public interest was involved in this case. The deponent has stated that the petitioner was transferred because of such public interest involved and in any event, transfer being a matter of routine nature for inspecting staff and according to their terms of service and conditions of employment and more particularly they can be transferred anywhere in West Bengal at any time when exigencies would require, this Court in the facts and circumstances of the case should not interfere. The deponent has stated that there was no malice against the petitioner but his conduct lacked good faith. 11. It was the case of the deponent that the Inspectors of Food and Supplies Department are liable to work under the District Controller where they are to work relating to checking of rice mills, husking mills besides their other normal works and there is no rule or any order passed pursuant to any rule that such Inspectors should perform only works of checking of modified ration shops under the control of the concerned Sub-Divisional Controllers. The suspension order as indicated in the petition was iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... framed duly but the petitioner was also given all, every and reasonable opportunities to defend himself. The deponent, in short has claimed that there has been no illegality or any irregularity and misuse or abusive use or power for which the charges as framed, could be claimed to be irregular or inappropriate. It was the deponent's further lease that the report as made, was duly and appropriately considered and there was also no misuse or abusive and capricious use of power, competence and jurisdiction. On the question of supplying the certified copies or attested copies of the documents as asked for, the deponent has stated that there has been no system of supplying such copies as was asked for but the petitioner, in terms of the rules and principles as followed, was duly asked to take inspection of the documents or copies of them and so also the statements of witnesses on which and on whom the prosecution was intended to be based. In fact, it has been stated that the facilities as mentioned above, were given to the petitioner in respect of all documents which were intended to be used and relied on by the department, and the petitioner was given time till 25th 'August, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven a go-by. The petitioner has categorically' stated that he was not given reasonable, due and adequate opportunities to meet the charges before the enquiring authority and the authority also did not act bona fide. It was also the petitioner's case that the petition as claimed, would not be pre-mature but the same would be maintainable and the respondents have acted arbitrarily, unreasonably and illegally apart from being in violation of principles of natural justice. It was claimed by the petitioner that every attempt was made by the authorities concerned to victimise and harass him. He has categorically claimed that finding no other alternative, the authorities concerned have now came forward with a stale matter of 1967 and no explanation has been duly given in the concerned affidavit-in-opposition as to why the proceedings against the petitioner could not be initiated within a reasonable time of the alleged occurrence, if any. 15. The memorandum dated 25th June, 1975 (Annexure F) shows that the Governor proposed to hold the enquiry in a common proceedings under Rule 9 of the said Rules, which, without the notes, is quoted as under:-- Subject to the provisions of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt from relying on Rule 9 as quoted hereinbefore, also referred to Rules 6 and 12(2) of the said Rules, which are quoted hereunder:-- 6. (1) Appointments to Class I and Class II Services.--All appointments to the West Bengal State Service, Class I and Class II shall be made by the Governor:-- Provided that the Governor may, by a general or special order, and subject to such conditions as he may specify in the order, delegate to any authority subordinate to him the power to make such appointments. (2) Appointments to Class III and Class IV Services.--All appointments to the West Bengal State Service, Class III and Class IV, specified in the entries in Column (1) of Schedule I shall be made by the authorities mentioned in the corresponding entries in Column (2) of that Schedule. Note--A letter of appointment issued to a temporary employee shall specify the period of appointment. It shall also provide that the services of the employee will be liable to termination during that period by service of a notice terminating with the expiry of a period to be specified in the letter of appointment which period shall not ordinarily exceed of month. In cases where it may not be poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into accordance with the rules to which the Government servant proceeded against, is subject in consultation with the Public Service Commission of the State in which the lending authority functions, where such consultation is necessary. Mr. Moitra further contended that since the order of suspension as passed, was revoked, the transfer order as issued, was and should be deemed to be a penal one and the effect of such order in its entirety was nothing but a mala fide intention to harass the petitioner. That apart, Mr. Moitra claimed that the admitted refusal to give the concerned report was improper and that constituted violation of principles of natural justice. 16. It was further claimed and contended by Mr. Moitra that the charges as contained in the charge sheet in the instant case were vague and in fact, on a reference to the charge sheet, he claimed that from the same it was difficult for the petitioner to follow what he was to answer. Such being the position on the basis of the determinations in the case of Shri B.D. Gupta v. State of Haryana, 1973 (3) SCC 149. Which was a case under the Punjab Civil Services (Punishment and Appeal) Rules, 1952 and which in terms has laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance with the relevant disciplinary rules and the constitutional provisions, the order passed by such authority cannot be interfered with in proceedings under Article 226 of the Constitution, merely on the ground that it was based on evidence which would be insufficient for conviction of the delinquent on the same charge at a Criminal trial. 17. Mr. Moitra, on a reference to the case of Paresh Chandra Dana v. Collector of Calcutta and Ors., 1978 (2) CLJ 316, further claimed and contended that the charge sheet in this case was bad and liable to be set aside and quashed inasmuch as the same was based on suspicion. According to him, a suspicion of guilt could not be made the basis of the offence and as such a delinquent could not also be punished on suspicion nor can his position be jeopardised on such or mere suspicion. Such submissions were also sought to be supplemented on a reference to the determinations in the case of Nand Kishore Prosad v. State of Bihar and Ors., (supra), where it has been observed that disciplinary proceedings before domestic are of a quasi-judicial character; therefore, the tribunal minimum requirement of the rules of natural justice, is that the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion of violation of principles of natural justice, for non-supply of the report, a further reference was made by Mr. Moitra to the observation in the case of State of Gujarat Anr. v. Ramesh Chandra Mashruwala, AIR 1977 SC 1619 which lays down that the failure to give copies of certain documents as demanded by the delinquent, would be of case of depriving him of reasonable opportunity to defend his cause. 19. The said Rules came into force on 1st May, 1971 and since no other Or earlier date of effect has been mentioned. Mr. Moitra claimed that under the provisions of the General Clauses Act, the same would be prospective from the date as mentioned and cannot be retrospective from any other earlier date and that being the position, the said Rules according to him as indicated earlier, could not have any effect in this case Mr. Moitra thus contended that Rule 25 of the said Rules, which deal with Repeal and Savings and to the effect that, (1) any rules, orders or notifications concerning matters covered by those rules including:-- (i) those contained in Parts XII and XIII of the Civil Services (Classification, Control and Appeal) Rules issued with the Government of India, H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 4 of the said Rules, which classifies the services under the Government and so also to Rule 6, which lays down how appointment to Class I and Class II Services under the West Bengal State Services shall be made. In addition to the above, Mr. Moitra referred to Schedule I of the said Rules, disclosing the list of appointing, disciplinary and Appellate Authorities in Class III and Class IV Services. The references to all the Rules as mentioned above, were intended for the purpose of establishing that the common proceeding as initiated, was unauthorised, without jurisdiction, illegal, irregular and void. Apart from the above. Mr. Moitra further claimed that non-disclosure of the relevant rules in the charge sheet, also made the same ultra vires. 20. Submitting further on the question of due initiation of disciplinary proceeding in this case, the particulars whereof have been mentioned hereinbefore, Mr. Moitra made a further reference to the case of Mohanbhai Dungarbhai Parmar v. Y.B. Zala and another, 1980 Lab IC 89, where it has been observed that delay in initiating proceedings may itself constitute denial of reasonable opportunity to defend. Such being the position and on th ..... 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