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1982 DIGILAW 4 (CAL)

Himangshu Kumar Sen Gupta v. Union of India

1982-01-13

BIMALENDRA NATH MAITRA, PRADYOT KUMAR BANERJEE

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JUDGMENT Banerjee, J. This appeal is at the instance of the plaintiff who was appointed as a Poddar in the Cash and Pay Office of the Accounts Department of the East Indian Railway Administration having its office at 17, Netaji Subhas Road, Calcutta. It appears there was a shortage of Rs.10,000.00 on 14.8.57 from different Shroffs and immediately the plaintiff reported the same to the Assistant Chief Cashier. Subsequently a charge sheet was given as against the plaintiff and the charge sheet was revised thrice. We are, however, concerned with the last charge sheet dated 23.12.58, namely, failure to make over to the Assistant Chief Cashier Rs.10,000.00 out of the total collection of G.C. Notes made by you from the Shroff’s working in the Fairlie Place Cash Office amounting to Rs. 3,62,095.00 on 14.8.57 resulting in loss of Rs. 10,000.00 to the Government." The plaintiff replied in the second show cause notice. Inquiry was held. He was found guilty and thereafter the Deputy Chief Commercial Accountant issued second show cause notice against the plaintiff which is as follows :- "Ext. 6 show cause notice dated 4th December, 1959. No. C/M/Loss/57/1 Dated the 4th December, 1959. To Sri H. K. Sen Gupta Treasurer Sarkar, Fairlie Place Cash Officer, Calcutta Father Name Sri Upendra Nath Sen Gupta, Rate of Pay Rs. 800 P/F. A/Np. Ticket No. Headquarters Station Calcutta after considering. ii) Your written explanation dated 6.2.1959 in reply to the Charge Sheet No. dated 23.12.1958 and iii) (a) the finding of the departmental enquiry submitted 3.11.1959 (b) Certified copy enclosed. I have arrived at the conclusion that the following charge has been proved against you and that you are guilty of the same. Charge Vide statement enclosed 3. You are hereby given seven clear days time from the receipt thereof to show cause why the proposed penalty should not be inflicted on you. Any representation that you make in this connection will be taken into consideration before passing final orders. 4. You are to acknowledge receipt of this "show cause" notice on the date it is presented to you, by giving your signature or this impression on the sub-jointed form. 5. Your reply or explanation may be given in the reverse of this form or on a separate paper. State, Calcutta Date 4.12.1959. Signature Illegible 4.12.1959 Deputy Chief Accounts Officer General E. Rly., Calcutta. 5. Your reply or explanation may be given in the reverse of this form or on a separate paper. State, Calcutta Date 4.12.1959. Signature Illegible 4.12.1959 Deputy Chief Accounts Officer General E. Rly., Calcutta. List of charge/charges against Sri H.K. Sen Gupta, Treasurer Sarkar, Fairlie Place Cash Office, Calcutta. Gross carelessness in your duty and in dealing with Government Money which regulated in your failure to make over to the Assistant Chief Cashier, Eastern Railway, the sum of Rs. 10,000/- (Rupees ten thousand) only out of the total collection of G.C. Notes on 14.8.57. Sd /Illegible 4.12.59 Dy. Chief Accounts Officer (General) Eastern Railway, Calcutta. 2. Thereafter, the plaintiff preferred an appeal which was however rejected by the Appellate Authority. After the second show cause notice was issued the plaintiff replied to the second show cause notice but he was removed from service with effect from 11.3.60. An appeal was taken against the order of removal which having been dismissed the present suit was filed. In the said suit the plaintiff prayed for a declaration that the order of suspension passed on 15.8.57 is without jurisdiction as also the purported order of removal and the appellate order thereon and for a further declaration that the plaintiff is still in service. The suit was, however, dismissed. Hence, this appeal. 3. Mr. Maitra, appearing on behalf of the appellant, contended firstly that the charge sheet was not by a proper authority. It appears to us that the Deputy Chief Accounts Officer was the appointing authority of the plaintiff and the charge sheet was given by him. Therefore, there is no substance in this contention. Secondly, it has been contended by Mr. Maitra that there were three charge sheets. Therefore, the whole proceedings was wrong. In our opinion, the last charge sheet was the real one others being superseded and the inquiry having proceeded on the basis of that there is no defect in issuing the charge sheet. 4. Next question urged by Mr. Maitra is that second show cause notice was not a proper one because firstly there was no tentative finding about the guilt of the plaintiff by the appointing authority, neither was ' there a tentative punishment. 4. Next question urged by Mr. Maitra is that second show cause notice was not a proper one because firstly there was no tentative finding about the guilt of the plaintiff by the appointing authority, neither was ' there a tentative punishment. At the second show cause notice stage it is incumbent on the part of the appointing authority to keep an open mind and come to a tentative or provisional finding about the guilt is finally proved. Unless that is so, the second show cause notice as contained in Article 311 (2) of the Constitution of India becomes nugatory. In the Supreme Court case of (1) The State of Assam & another v. Bimal Kumar Pandit, reported in 1963 SC 1612 the nature and character of the second show cause notice has been stated in paragraph 6 of the report. Relevant portion may be quoted here :- "When the inquiry is over and the Inquiring Officer submits his report, the dismissing authority has to consider the report and decide whether it agrees with the conclusions of the report or not. ............... In issuing the second notice, the dismissing authority naturally has to come to tentative or provisional conclusion about the guilt of the public officer as well as about the punishment which would meet the requirements of justice in his case and it is only after reaching conclusions in both these matters provisionally that the dismissing authority issues second notice”. 5. Applying the principle to the facts and circumstances of this case we have no hesitation that the second show cause notice cannot be sustained and must be set aside which we hereby do. 6. As the plaintiff is a railway officer and bolding a civil post he has a status and the order being in violation of the constitutional provision, being Article 311 (2) of the Constitution read with the Railway Establishment Code Rules the plaintiff is entitled to the declaration as prayed for. 7. We, therefore, set aside the order of removal already passed' against the plaintiff and the plaintiff is declared to be continuing in service of the Railways as prayed for. He will be entitled to all his emoluments as if he was not removed from his service with effect from 11.3.60. 8. The judgment and decree of the Court below including the appellate order are set aside. He will be entitled to all his emoluments as if he was not removed from his service with effect from 11.3.60. 8. The judgment and decree of the Court below including the appellate order are set aside. The appeal is allowed and the suit is decreed accordingly. There will be no order as to costs. Oral prayer for leave to appeal to the Supreme Court is refused as in our opinion there is no substantial question of law of public importance which requires to be decided by the Supreme Court. Maitra, J.: I agree.