Subrata Chaki v. STATE OF WEST BENGAL — 1985 DIGILAW 413 (CAL)

JUDGMENT 1. THE appellants of these six appeals at the material time were working as Lower Division Assistants in the Office of the Collector of Calcutta, Government of West bengal. On 13th March, 1981 the Collector of Calcutta had purported to place them under suspension because distribution proceedings for gross in disciplinary acts committed by them on 3rd March, 1981 were contemplated. On 7th April, 1981 the collector of Calcutta issued Memoranda of Charge-sheets against the said appellants. 2. THE Article of Charge I was that on 3rd March 1981 at 12 noon while at his office chamber the Collector was discussing matters relating to appointment of Enumerators for revision of Electoral Rolls of five Assembly Constituencies with five persons mentioned in the charge-sheet, the appellants along with 25 persons had entered his room in rage without asking any permission and without any previous engagement. The appellants had began to talk in an unmannerly way exceeding decency and decorum and started a violent demonstration including utterances of filthy language. The further charge was that the appellants had demanded that the files regarding confirmation of the Upper Division Clerks and appointment of two Lower Division Clerks should be signed by the Collector instantly. The collector was compelled to sign those files in their presence. The appellants alleged to have threatened the Collector and asked him to issue appointment letters to Enumerators unless persons of their choice were; accommodated in the selection list. It is further alleged that the appellants had taken way the papers from his table and had threatened him. The Collector of Calcutta had appointed B. K. Biswas, deputy Secretary, Home Department, Government of West Bengal as Enquiring Authority to enquire into the charges framed against the appellants. The appellants had denied the charged framed against them. On or about 7th May, 1981 the appellants moved in this court applications under Article 226 of the Constitution of India challenging their suspension and also the aforesaid disciplinary proceeding started against them. The respondents contested by filing affidavits. . . . . 3. ON 21st April, 1981 G. N. Ray, J. disposed of the said writ applications. The learned trial judge declined to interfere with the orders suspending the appellants. The learned trial judge further recorded that Mr. The respondents contested by filing affidavits. . . . . 3. ON 21st April, 1981 G. N. Ray, J. disposed of the said writ applications. The learned trial judge declined to interfere with the orders suspending the appellants. The learned trial judge further recorded that Mr. Chatterjee, learned Senior standing Counsel, appearing on behalf of the State, had submitted that as the charge-sheets contained allegations relating to the instances happening in the presence of the Collector of Calcutta, the respondent no. 2, it would not be proper for him to act as the Disciplinary Authority and Mr. Chatterjee had suggested that the Commissioner of Presidency Division should act as the Disciplinary Authority after taking into consideration the report of the Enquiring Officer. The petitioners would be "entitled to prefer appeal if the decision of the Commissioner, Presidency Division went against them J, to the Chief Secretary, Government of West Bengal. The learned trial judge had accepted the said suggestion that the Commissioner of Presidency Division would act as the Disciplinary Authority. The learned Judge further observed that it was desirable that the disciplinary proceedings should be completed as early as possible preferably within a period of three months from date. 4. THE appellants preferred these appeals against the aforesaid decision of G. N. Ray, J. On 14th September, 1982, Murari mohan Dutt and Monoj Kumar Mukherjee, JJ, disposed of, their applications for interim stay of the operation of the orders of the learned trial judge dated 21st April, 1982. The learned judges of the Division Bench recorded that the appellants had urged that although more than three months' had elapsed from the date of, the trial court's; order, nothing had been done in regard to the disciplinary proceedings. The respondents did not file any affidavit -in- opposition traversing the allegations, particularly the allegation that no steps have been taken in regard to the disciplinary proceedings. According to the Division Bench, the respondents had not complied with the order of the trial judge, that the disciplinary proceeding should be completed as early as possible preferably within a period of three months from the date of his judgment. It might be reasonably inferred, that 'they were not very keen on proceeding against the petitioners. According to the Division Bench, the respondents had not complied with the order of the trial judge, that the disciplinary proceeding should be completed as early as possible preferably within a period of three months from the date of his judgment. It might be reasonably inferred, that 'they were not very keen on proceeding against the petitioners. The Division Bench was of the view ' that "as no steps hold been taken against the appellants by starting disciplinary proceedings, the orders of suspension could not be sustained. The respondents were directed to forthwith re-instant them in service and to pay their arrears of salary still due. The Division Bench also directed expeditious hearing of the appeals'. In these appeals on 5th September, 1985 the appellants filed applications for taking consideration, the subsequent facts mentioned in the applications. It was stated that during the- pendency of the appeals Subrata Chaki and Dilip Kumar Mukherjee, two of the appellants during the pendency of their appeals had been promoted as Upper Division Clerks. All the six appellants also stated that inspite of the fact that there was no interim order regarding continuance and conclusion of disciplinary proceedings, no steps in the proceedings have been taken by' the respondents. According to the appellants, this, showed that the respondents were not only not keen about holding the proceeding but they had abandoned the same. 5. BHABABHUTI Bhattacharya, the respondent no. 2, the Collector of Calcutta, affirmed affidavits-in-opposition against the said applications for taking note of subsequent events. In paragraph (2) of his affidavits-in-opposition the. respondent no. 2 averred that on 5th May, 1983 and 19th May, 1983 all papers,and files relating to the instant case were went to the Commissioner, Presidency 'division, who was to act as the disciplinary Authority, according to the observations of G. N. Ray, J. in his judgment dated 21st April, 1982. In relaxation of the West Bengal Services (Classification, Control and Appeal) Rules, 1971, the Commissioner,, Presidency Division had been appointed as the Disciplinary Authority. The respondent no. 2 claimed that at present the entire matter was lying under the disposal of the Commissioner of Presidency Division, who had been intimated about the present position. The respondent no. 2 denied that he was not keen about the holding of the departmental proceedings and there was nothing to believe that the proceedings had been abandoned or given up. The respondent-no. The respondent no. 2 denied that he was not keen about the holding of the departmental proceedings and there was nothing to believe that the proceedings had been abandoned or given up. The respondent-no. 2 admitted that on the basis of seniority Dilip Kumar Mukherjee, one of the appellants had been promoted to Upper Division post- In terms of the interim injunction made in Civil Rule no. 1 4496 (W) of 1984, Subrata Chaki had been continuing in upper Division post from 1st April, 1984. 6. NEITHER the Commissioner, Presidency Division, who was to act as the Disciplinary Authority, nor Mr. B. K. Biswas, the Deputy Secretary, Home Department, Government of West Bengal, who had been appointed as the Enquiring Officer, has filed any affidavit disclosing the reasons why the disciplinary proceedings against the appellants had not been started although there was no order of the court restraining them from proceeding with the said enquiries. Suspension orders passed against the appellants under orders of the Division Bench dated 14th September, 1982 have remained in abeyance. In their said order the Division Bench came to the finding that the orders of suspention would not be sustained as no steps had been taken against the appellants for starting disciplinary proceedings. We may note that two of the appellants in the meantime have been promoted as Upper division Assistants. The Learned Standing Counsel has not very seriously urged that the respondents ought to be now allowed to again place the appellants under suspension. In our view, because of the facts and circumstances of the cases and the conduct of the respondents the impugned suspension orders ought to be quashed. 7. MR. Mukherjee, learned advocate appearing on behalf of the appellants has submitted that the respondents have not furnished any reason for not completing the disciplinary proceedings against the appellants which have been pending for more; than 5 years. While disposing of the writ petition the learned trial judge had observed that the petitioners had been suffering from a long time and it was desirable that the disciplinary proceeding should be completed as early as possible preferably within a period of three months from the date of his judgment, i.e. April 21, 1982. While disposing of the writ petition the learned trial judge had observed that the petitioners had been suffering from a long time and it was desirable that the disciplinary proceeding should be completed as early as possible preferably within a period of three months from the date of his judgment, i.e. April 21, 1982. Again on 14th September, 1982 the Division bench consisting of Murari Mohan Dutt and Monoj Kumar Mukherji, J. had recorded that the State respondents did not file any affidavit before them controverting the allegations that no steps had been taken in regard to the disciplinary proceedings. The respondents, therefore, had not' complied with the orders of the learned trial judge "it may be reasonably inferred that they are not very keen on proceeding against the petitioner". As already noted, the Division Bench had come to the finding that the suspension order could not be accordingly sustained. 8. THE respondents had not: produced any further material before us to show that apart from transmitting the records to the Commissioner, Presidency Division, they have taken any steps so far for conducting the disciplinary proceedings against the appellants. Mr. Mukherjee has submitted that the court ought to conclude that the respondents have abandoned the disciplinary proceedings. He has also urged that in any view of the matter holding of disciplinary proceedings more than five and half years from the date of alleged incident would amount to denial of reasonable opportunity to the appellants to defend themselves. In this connection Mr. Mukherjee has placed reliance upon the observations of a learned Judge of the Gujarat high Court in the case of Mohanbhai Dungarbhai Parmer v. Y. B. Zala and Another 1 980 (1) Labour and Industrial Cases 89 at page 91. The learned judge had observed that having regard to the very nature and the content of the charge, delay of about 1 and half years in issuing the charge-sheet must be considered fatal from the point of view of affording opportunity to the Constable concerned to show cause against the charges levelled against him. The learned judge had observed that having regard to the very nature and the content of the charge, delay of about 1 and half years in issuing the charge-sheet must be considered fatal from the point of view of affording opportunity to the Constable concerned to show cause against the charges levelled against him. The Supreme Court in the case of Union of India v. M. B. Patnaik and Others 1981 (2) Supreme Court cases 159, had upheld the similar view taken by the Orissa high Court against some Railway Employees that it would be inequitable to make fresh enquiry into the charges framed against them or to go into the merits of the case against one of them having regard to the long lapse of time, the offences having been committed in about 1 955 (vide page 165 of the said reports). It would depend upon the facts and circumstances of each particular case whether because of inordinate delay either to initiate or to conclude the disciplinary proceedings, the same ought to be quashed and such proceedings have been delayed because of the conduct of the delinquent himself, he cannot certainly plead that he had been denied reasonable opportunity because of lapse of time. Again delay would not be fatal in case the disciplinary authorities remain restrained by order of the court or are prevented by any other sufficient cause from concluding the proceedings. In the instant case, atleast from the date of the disposal of the writ application by the learned Single Judge, there was no injunction upon the respondents from proceeding with the enquiries Against the appellants. On the other hand, the learned trial judge had directed that the same be disposed of preferably within three months. The division Bench in passing interim order in Respect of suspension of the appellants had made edverse observation because the respondent had not taken any steps in regard to the disciplinary proceedings- No explanation for the delay of more than five and half years has been furnished either by the C6mmissioner, presidency Division,, who was to act as the Disciplinary Authority, or by Mr. B. K. Biswas, who was appointed as the Enquiring officer. 9. IN the instant case the charges framed in respect of the incident which allegedly occurred at the chamber of the collector of Calcutta, the respondent no. 2, on 3rd March, 1981. B. K. Biswas, who was appointed as the Enquiring officer. 9. IN the instant case the charges framed in respect of the incident which allegedly occurred at the chamber of the collector of Calcutta, the respondent no. 2, on 3rd March, 1981. In substance, the charge against the appellants was that they, inter- alia, held a violent demonstration. The annexure of the charge-sheet indicated that the charges against the appellants were proposed to be sustained by oral evidence of eight persons. The charge-sheet did not mention any documentary evidence in support of the prosecution case. Presumably, on the basis of the oral evidence the respondents proposed to establish' the said charges against the appellants. The appellants are likely to be seriously prejudiced if the disciplinary proceeding against them is now started. We are not prepared to allow the respondents further time to hold enquiry when they themselves have not explained why they did not hold the disciplinary proceedings for such along time. 10. WE accordingly allow these appeals, set aside the order/ judgment of the learned trial judge and allow the writ applications. We quashed both the charge-sheets and the disciplinary proceedings. There will be no order as to costs. Appeal allowed.