Sunil Kumar Mukherjee v. State of West Bengal — 1976 DIGILAW 341 (CAL)

JUDGMENT The petitioner, Sunil Kumar Mukerjee, is an Inspector (Technical) of Motor Vehicles, Malda. Certain allegations were made against the petitioner and after a preliminary investigation by the Vigilance Commission, a charge sheet dated March 17, 1976 issued by the Deputy Secretary to the Govt. of West Bengal was served upon him. The charge sheet contained two items of charge which are set out below : Charge I : That the said Sri Sunil Kumar Mukerjee, while functioning as M.V. Inspector (Technical) P.V. Deptt., 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, 06102 in 1965, Rs.2,203.46 in 1966 and Rs. 8,252.80 in 1967 and that his conduct as such is un becoming of a Govt. Servant. Charge II. That the said Sunil Kumar Mukerjee, while functioning as above permitted his wife Sm. Bharati Mukerjee to purchase a car on 19.7.1965 and sell the same on 9.1.1967, without obtaining prior permission from his appointing authority and thus violated Clause (b) of Sub-rule (2) of Rule 15 of the West Bengal Govt. Servents Conduct Rules, 1959. In the Charge sheet, the assets of the petitioner on the basis of his declaration as on 1.1.65 and 1.1.66 and his income and expenditure during 1965, 1966 and 1967 have been stated. It has been alleged, inter alia, that his assets during the these years were disproportionate to his income. Further, it has been alleged that on enquiry, it was found that on 19.7.1965 his wife purchased an old car for Rs. 2,550/- from one Bhabani prosad Dutta and sold the same on 9.1.1967 to one Asim Bhusan Biswas for Rs. 3,501/- without obtaining prior permission from his appointing authority. 2. It has been already stated that there was an investigation before the charge-sheet was issued. During that investigation, the Investigating Officer examined a number of witnesses and thereafter submitted a report. The petitioner by his letter dated May 19, 1973, addressed to the Enquiring Officer prayed for allowing him to take copies of the depositions of all the witnesses examined by the Investigating Officer and the copy of the original complaint made against him. He also asked for a copy of the report submitted by the Investigating Officer. The petitioner by his letter dated May 19, 1973, addressed to the Enquiring Officer prayed for allowing him to take copies of the depositions of all the witnesses examined by the Investigating Officer and the copy of the original complaint made against him. He also asked for a copy of the report submitted by the Investigating Officer. The Enquiring Officer by his order dated May 19, 1973, directed that the petitioner would get copies of statements of only those witnesses on whom the prosecution would rely. The copies of depositions of those witnesses were supplied to the petitioner along with the copies of some other documents as mentioned in the charge sheet. He, however, refused to supply to the petitioner a copy of the report of the Investigating Officer on the Ground that the same would not be relied upon by the prosecution. The petitioner also by an application dated May 19, 1973, asked for allowing him to engage a lawyer of his choice to conduct the defence case on the ground that Sri. A.K. Roy Chowdhury who was to conduct the prosecution case was well conversant with the procedural matters as well as an expert in conducting prosecution cases. The Enquiring Officer did not accept to the request of the petitioner for engaging a lawyer to conduct his case on the ground that there was no legal or factual complications in the case. Thereafter, the petitioner submitted his explanation to the charges. 3. In the enquiry, certain witnesses were examined on behalf of the prosecution. The petitioner cross-examined the said witnesses and filed documents in support of his case. He also examined some defence witnesses. After the close of the evidence, the petitioner filed an application before the Enquiring Officer praying for allowing him to examine himself as a defence witness. He also prayed that he would depose by referring to certain documents which he had brought with him. The Enquiring Officer by his order dated April, 1975, allowed the petitioner to examine himself but refused him to file any documents or to refer to the same during his evidence. 4. After the conclusion of the enquiry, the Enquiring Officer found the petitioner guilty of both the charges. The Enquiring Officer by his order dated April, 1975, allowed the petitioner to examine himself but refused him to file any documents or to refer to the same during his evidence. 4. After the conclusion of the enquiry, the Enquiring Officer found the petitioner guilty of both the charges. Thereafter, by an order dated July, 31, 1975 of the Government a notice was issued to the petitioner calling upon him to show cause why the penalty of dismissal should not be imposed upon him. By another order of the same date, the petitioner was put under suspension. In this Rule, the petitioner has challenged the legality and propriety of the chargesheet, the report of enquiry, the order of suspension and the second show cause notice. 5. Mr. Nani Coomer Chakraborty, learned Advocate appearing on behalf of the petitioner has advanced the following contentions : (1) The chargesheet shows that the authority concerned issued the same with a closed mind. (2) The petitioner not having been supplied with the copies of depositions of all the witnesses examined during the preliminary investigation and the copies of the complaint made against him and the report of the Investigating Officer, the entire proceeding was vitiated as having been conducted in violation of the rules of natural justice. (3) The respondents acted illegally and in violation of the principles of natural justice in not allowing the petitioner to file and refer to certain documents during his evidence. (4) The petitioner not having been allowed the assistance of a lawyer was seriously prejudiced and deprived of a reasonable opportunity to defend himself. (5) The order of suspension is opposed to the provision of rule 7(1) (a) of the West Bengal Services (Classification Control and Appeal) Rules, 1971 and, as such, illegal and invalid. (6) In the facts and circumstances of the case, the second show cause notice is illegal and should not be given effect to. 6. Before I deal with the above contentions of the petitioner, I may dispose of a preliminary objection raised by Mr. Mukul Gopal Mukerjee, learned Advocate appearing on behalf of the respondents. It is contended by him that as no penalty has yet been imposed upon the petitioner, the writ petition at this instant is not maintainable. 6. Before I deal with the above contentions of the petitioner, I may dispose of a preliminary objection raised by Mr. Mukul Gopal Mukerjee, learned Advocate appearing on behalf of the respondents. It is contended by him that as no penalty has yet been imposed upon the petitioner, the writ petition at this instant is not maintainable. In support of his contention, he has placed strong reliance on a recent decision of, the Supreme Court in (2) Chanan Singh v. Registrar, Co-op. Societies Punjab, AIR 1976, SC 1821. In that case, the second show cause notice was challenged by the appellant before the Supreme Court. Krishna Iyer, J. in dismissing the appeal observed as follows : "Other obstacles in the way of granting the appellant relief were urged before the High Court and before us, but we are not inclined to investigate them for the short reason that the writ petition was in any case premature. No punitive actions has yet been taken. It is difficult to state, apart from speculation, what the outcome of the proceedings will be. In the case the appellant is punished, it is certainly open to him either to file an appeal as provided in the rules or to take other action that he may be advised to resort to. It is not for us, at the moment, to consider whether a writ petition will lie or whether an industrial dispute should be raised or whether an appeal to the competant authority under the rules is the proper remedy, although these are issues which merit serious consideration. We are satisfied that, enough upto the day being the evil thereof, we need not dwell on problems which do not arise in the light of the view we take that there is no present grievance of punitive action which can be ventilated in court ........" His Lordships, however, did not uphold the order of suspension as the co-operative society had no power to suspend an employee pending an enquiry. 7. On the strength or the above decision of the Supreme Court, it is contended that in the present case also no punitive action has yet been taken against the petitioner and it will be a mere speculation to say what the disciplinary authority would do after considering the explanation that may be submitted by the petitioner to the second show cause notice. There can be no doubt that this decision of the Supreme Court supports the contention of the respondents so far as the second show cause notice is concerned, but in the instant case, the petitioner has not only challenged the second show cause but also he has challenged the chargesheet, the legality of the enquiry proceeding and also the conduct of the Enquiring Officer in refusing the petitioner to supply copies of certain documents in violation of the rules of natural justice. Over and above, it is alleged that he has not been afforded a reasonable opportunity to defend himself by a lawyer. If the petitioner's challenge had been directed only against the second show cause notice as in the case before the Supreme Court, in that case, the writ petition would have been dismissed, but as other challenges have been made which go to the root of the matter it cannot be said without considering the contentions of the petitioner that the writ petition is not maintainable as no punitive action has yet been taken against him. In these circumstances, the preliminary objection is overruled. 8. Now coming to the merits of the case, the first contention of the petitioner in that the charge sheet shows that the authority concerned had a prejudiced or closed mind in issuing the charge sheet against the petitioner. In support of this contention reliance has been placed on behalf of the petitioner on an unreported judgment of P. K. Banerjee, J. (2) Amar Nath Sur v. State of West Bengal in CR No. 6042 (W) of 1974 disposed of on 9.1.1976. In that case, the charge against the petitioner was that his assets were disproportionate to his income during his service career between November 12, 1962 and March 3, 1964. Banerjee, J. came to the finding that the respondent concerned made up his mind about the guilt of the petitioner before him and about the disproportionate assets worth Rs. 12,000/-. He took the view that the same indicated that the respondent had a closed mind about the guilt of the petitioner. In that view of the matter, he, inter alia, set aside the charge sheet and the order of suspension and made the rule absolute. 12,000/-. He took the view that the same indicated that the respondent had a closed mind about the guilt of the petitioner. In that view of the matter, he, inter alia, set aside the charge sheet and the order of suspension and made the rule absolute. I have already set out the charges and I do not find that the disciplinary authority who issued the charge sheet had made up his mind against the petitioner. In my opinion, the charges levelled against the petitioner can not be read as the findings of the disciplinary authority regarding the guilt of the petitioner, but those are only imputations or allegations made against him which he was to meet. I have perused from the records the charges made against the petitioner in CR No. 6042 (W) of 1975, and I find that the language used there is different from that used in the charge sheet in the present case. In these circumstances, the same unreported judgment does not support the contention of the petitioner that the disciplinary authority had a closed mind when he issued the charge-sheet against the petitioner. This contention of the petitioner therefore, fails. 9. So far as the second contentions of the petitioner is concerned, it is true that he was not given copies of the depositions of certain witnesses examined during the preliminary investigation and the copies of the complaint made against him and of the report of the Investigating Officer. It is the case of the respondents that they did not propose to rely on the said documents, and, as such, the petitioner was not at all prejudiced because of the non-supply of the copies of the same to him. It has not been stated by the petitioner how he has been prejudiced for the absence of the said documents. The petitioner was granted copies of all documents including the depositions of some witnesses examined in the preliminary investigation on which the prosecution relied. The petitioner could have cited any of the witnesses examined in the preliminary investigation as a witness in the enquiry proceeding but he did not cite any of them. The issue in the enquiry was whether the assets of the petitioner was disproportionate to his income. The petitioner was to explain the disparity which is within his special knowledge. The petitioner could have cited any of the witnesses examined in the preliminary investigation as a witness in the enquiry proceeding but he did not cite any of them. The issue in the enquiry was whether the assets of the petitioner was disproportionate to his income. The petitioner was to explain the disparity which is within his special knowledge. He was afforded ample opportunity to explain the same and indeed he examined witnesses and filed documents in support of his case. I do not think that the petitioner was prejudiced as he was not supplied with the copies of the depositions and documents referred to above. A similar contention was made before the Supreme Court in (3) Krishna Chandra Tandon v. The Union of India, AIR 1974, SC 1589. In that case, on complaints being received about the work of the appellant, the Commissioner of Income Tax had asked the Inspecting Assistant Commissioner Sri. R. N. Srivastava to make a report. He made a report. It was observed by Palekar, J. that it was obvious that the appellant was not entitled to a copy of the report made by Mr. Srivastava or any other officer unless the Enquiry Officer relied on these reports, and that it is very necessary for an authority which orders an enquiry to be satisfied that there are prima facie grounds for holding a disciplinary enquiry, and, therefore, before he makes up his mind he will either himself investigate or direct his subordinates to investigate the matter and it is only after he receives the result of these investigations that he can decide as to whether disciplinary action is called for or not. Thereafter, it was observed by his Lordship "Therefore, these documents of the nature of inter-departmental communications between officers preliminary to the holding of enquiry have really no importance unless the enquiry officer wants to rely on them for his conclusions. In that case, it would only be right that the copies of the same should be given to the delinquent. It is not the case here that either the Enquiry Officer or the Commissioner of Income Tax relied on the report of Sri. R. N. Srivastava or any other officer for his finding against the appellant. Therefore, there is no substance in this submission", This contention of the petitioner has merits and is, accordingly, rejected. 10. It is not the case here that either the Enquiry Officer or the Commissioner of Income Tax relied on the report of Sri. R. N. Srivastava or any other officer for his finding against the appellant. Therefore, there is no substance in this submission", This contention of the petitioner has merits and is, accordingly, rejected. 10. The third contention of the petitioner is equally devoid of any merit. It was contended on his behalf that as he was not allowed to refer to certain documents which were not filed earlier but which were with him at the time he examined himself as a witness in the enquiry, the respondents acted illegally and in violation of the principles of natural justice. In the petition, the documents upon which the petitioner wanted to reply have not been disclosed. This court, is therefore, unable to consider whether the said documents would have been relevant for the purpose of the defence of the petitioner. If the alleged documents were important for the petitioner's defence the petitioner should have disclosed the same in the petition, but he has not. In the circumstances, it is difficult to accept the contention of the petitioner that the respondents acted illegally and in violation of the principles of natural justice is not allowing him to file and refer to the alleged documents during his defence. 11. The next point for consideration is whether the petitioner was seriously prejudiced in defending himself as the respondents refused him the assistance of a lawyer. It has been already stated that one A. K. Roy Chowdhury was conducting the prosecution case. According to the petitioner, the said A. K. Roy Chowdhury is well conversant with the procedural matters and is an expert in conducting prosecution cases. In support of his contention Mr. Chakraborty has placed reliance on some decisions. In (4) Nripendra Nath Bagchi v. Chief Secretary Govt. of West Bengal, AIR 1961 Cat 1 (SB) P. B. Mukherjee, J. (as he then was) observed as follows : "If on the particular facts and complexity of a case, assistance of a lawyer is regarded as a part of reasonable opportunity, then denial of such an opportunity is violation alike of the constitutional protection under Art., 311 (2) and the principles of natural justice..... Assistance of a lawyer cannot always be regarded as a part of "reasonable opportunity to show cause". Assistance of a lawyer cannot always be regarded as a part of "reasonable opportunity to show cause". Courts in India on the particular facts of some cases have held that assistance of a lawyer was not part of a reasonable opportunity. It may on the facts of a particular case be a luxury, unnecessary or immaterial. What is reasonable opportunity in the Indian constitutional context of Art. 311 (2) will depend on the: facts of each case and the constitution has laid down no hard and fast rule be defining reasonable opportunity for all cases". The Bench decision in (5) Director General of Posts and Telegraphs v . Nani Gopal Majumder, 77 CWN 752 is a case on Rule 15 (5) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 which provides for the representation of a Govt. servant charged with dereliction of duty by another Govt. servant or in appropriate cases by a legal practitioner. Accordingly, it was held that it was incumbent upon the disciplinary authority to consider the facts and circumstances of the case before him and come to a decision whether the Govt. servant concerned should be permitted to engage a legal practitioner to assist him in the presentation of his case, and that the refusal of such permission on the part of the disciplinary authority merely on the ground that no legal practitioner had been nominated to present the case of the Government servent would be a breach of the above rule and violation of the principles of natural justice and of Article 311 (2) of the Constitution. The Supreme Court also in (6) C. L. Subramanium v. The Collector of Customs, Cochin, AIR 1972 SC 2178 has laid down that rule 15 (5) of the said rules is mandatory and regulates the guarantee given to Government servants under Article 311. The Central Civil Services (Classification, Control and Appeal) Rules, 1957 are inapplicable to the petitioner and his case is governed by the West Bengal Services (Classification, Control and Appeal) Rules, 1971 which do not contain any such rule like Rule 15 (5). 12. After considering the above decisions, I am of the view that whether or not legal assistance should be allowed to a delinquent Government servant in a departmental proceeding against him depends upon that facts and circumstances of the case. 12. After considering the above decisions, I am of the view that whether or not legal assistance should be allowed to a delinquent Government servant in a departmental proceeding against him depends upon that facts and circumstances of the case. If the case, is of a complex nature and involves points of law, in that case, legal assistance may be allowed. I may once more refer to the decision of the Supreme Court in (3) Krishna Chandra Tandon v. The Union of India. In that case also, the appellant asked for legal assistance at the enquiry but that was refused. Palekar, J. observed as follows :– "the appellant was not entitled under the rules to the assistance of an advocate during the course of inquiry. The learned judge 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 indication had been given in the charges with regard to the unusual conduct the displayed in disposing of the assessment cases and various flaws and defaults which were apparent on the fase 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 witnesses of a trained lawyer for cross-examination the witnesses. There was no legal complexity in the case. We do not, therefore, acceed to the contention that the absence of a lawyer deprived the appellant of a reasonable opportunity to defend himself." The observation of the Supreme Court referred to above apply with equal force to the facts and circumstances of the instant case. I am unable to accept the contention of the petitioner that he was not afforded a reasonable opportunity inasmuch as he was denied that assistance of a lawyer at the enquiry. 13. The petitioner has also challenged the order of suspension. It is contended on his behalf that he was put under suspension in violation of Rule 7 (1) (a) of the West Bengal Services (Classification, Control and Appeal) Rules, 1971. 13. The petitioner has also challenged the order of suspension. It is contended on his behalf that he was put under suspension in violation of Rule 7 (1) (a) of the West Bengal Services (Classification, Control and Appeal) Rules, 1971. It has been already noticed that after the Enquiry Officer found the petitioner guilty of both the charges, he was suspended by the same order by which the impugned notice calling upon him to show cause was issued. The contention of the petitioner is that after the termination of the enquiry, he could not be suspended. Rule 7(1)(a) provides that the appointing authority or any authority to which it is subordinate or any authority empowered by the Governor in that behalf may place a Government servant under suspension where a disciplinary proceeding or departmental enquiry against him is contemplated or is pending. It is said that the departmental enquiry came to an end by the submission of the report of the Enquiry Officer. In support of the contention, my attention has been drawn to Article 311(2) which provides for an enquiry against the delinquent government servant in which he has been informed of the charge against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such enquiry, to impose on him a penalty of dismissal, removal or reduction in rank, until he has been given a reasonable opportunity for making representation on the penalty proposed etc. It is true that under Article 311(2), the second show cause notice for any of the above penalties is issued after the enquiry, but in my opinion the words" departmental enquiry" in Rule 7(1) (a) contemplate the entire departmental proceeding including the imposition of penalty. In Article 311 (2) the departmental enquiry has been devided into two stages, namely (1) the actual enquiry and (ii) the issue of the second show cause notice regarding imposition of penalty. I am unable to accept the contention of the petitioner based on the analogy of Article 311(2). In any event under Rule 7(1) (a), the delinquent government servent may be suspended where a 'disciplinary proceeding' is pending. There can be no doubt that the disciplinary proceeding was pending against the petitioner when he was put under suspension. I am unable to accept the contention of the petitioner based on the analogy of Article 311(2). In any event under Rule 7(1) (a), the delinquent government servent may be suspended where a 'disciplinary proceeding' is pending. There can be no doubt that the disciplinary proceeding was pending against the petitioner when he was put under suspension. In these circumstances I do not find that the disciplinary authority acted illegally or without jurisdiction in suspending the petitioner after the Enquiring Officer submitted his report against him. 14. The petitioner has no doubt challenged the order of the Governor proposing to dismiss him from service and accordingly, asked him to show cause against the imposition of the penalty of the dismissal. The petitioner will be at liberty to show cause against the same and to challenge the findings of the Enquiring Officer. It is for the disciplinary authority to consider the representation that may be made by the petitioner against the imposition of penalty and also the findings of the Enquiring Officer. At this stage, this court should not embark upon an adjudication of the merits of the case which is exclusively within the jurisdiction of the disciplinary authority. No other point has been argued on behalf of the petitioner. 15. All the contentions of the petitioner having failed, this rule fails. The petitioner is. granted liberty to submit his representation against the impugned second show cause notice within a month from date. If any such a representation is made, the disciplinary authority is directed to consider the same in accordance with law. This judgment will not in any way prejudice the contentions of the petitioner before the disciplinary authority. 16. Subject to the above observation, the Rule is discharged, but there will be no order as to costs. As prayed for, let operation of this judgment remain stayed till three weeks after the long vacation so as to enable the petitioner to prefer an appeal against the judgment.