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1991 DIGILAW 415 (CAL)

Wangel Zimba v. State of West Bengal

1991-09-03

Ruma Pal

body1991
Judgment : Burna Pal, J.: The petitioner is a member of the W.B.C.S. (Ex.) Service having joined the said service in 1978. His challenge in this writ petition is to a charge-sheet dated 30th April, 1991 by which disciplinary proceedings have been sought to be commenced against the petitioner. The second grievance is that by reason of the pendency of the disciplinary proceedings which have been wrongly initiated, the petitioner is being denied the revised scale of pay to which he is otherwise entitled. 2. This writ application was moved on 10th June, 1991 upon notice to the respondents. Directors were given for the filing of affidavits. No affidavits were filed. As such the allegations contained in the petition must be taken to be uncontroverted. 3. The facts are briefly as follows:- On 29.3.1988 the petitioner was issued a charge-sheet (referred to as the first charge-sheet) by which/disciplinary proceedings were sought to be taken against the petitioner on the allegation that the petitioner had appeared in the W.B.C.S. (Ex.) Examination by falsely declaring himself to belong to the Yolmo Community which is a Scheduled Tribe. The petitioner submitted a written statement of defence denying the allegations in the first charge-sheer. In particular it was pointed out that Zimbas belong to the Yolmo Tribe and that this had been confirmed by the Special Officer, Scheduled Castes and Scheduled Tribes, Welfare Department, Darjeeling. Evidence was taken. The petitioner was served with a second show cause notice on 24th October, 1989 in which it was proposed to impose the penalty of dismissal from service on the petitioner under Clause (viii) Rule 8 of the West Bengal Service (Classification Control and Appeal) Rules, 1971. 4. The petitioner challenged the enquiry proceedings and the first chargesheet and the said show cause notice under Article 226 of the Constitution of India. The matter which was marked as C.O. No. 14292(W) of 1989 was disposed of by a judgment of Paritosh Kr. Mukherjee, J. on 14th June, 1990. 4. The petitioner challenged the enquiry proceedings and the first chargesheet and the said show cause notice under Article 226 of the Constitution of India. The matter which was marked as C.O. No. 14292(W) of 1989 was disposed of by a judgment of Paritosh Kr. Mukherjee, J. on 14th June, 1990. By the said judgment the learned Judge held, inter alia, as follows : "Regarding point No.1, in my view, the Tribal Officer having issued a certificate after making necessary enquiries as for back as in 1970 and coming to the conclusion that the petitioner belonged to the Yolmo Community (Scheduled Tribe) the Disciplinary Authority should not have issued the charge-sheet dated March 29, 1988, after 10 years since the petitioner joined service in 1978." "Further, I am of the view that no charge-sheet at all could be issued on the basis of such evidence as produced on behalf of the disciplinary authority because it appears that there were no materials from the evidence of P.W. 2 Dawa Dhondop and P.W. 3 N. Wangdi, Special Officer, Scheduled Caste and Schedule Tribe, Darjeeling. Such, in my view, it cannot be suggested that the charges against the petitioner have been proved by the disciplinary authority beyond all reasonable doubts. In the result, the enquiry report dated June 19, 1989 the order of suspension and the second show cause notice dated October 24, 1989 (being Annexures 'H' and 'I' respectively) are set aside by issue of an appropriate writ in the nature of Certiorari." 5. Having held that the charges were not based on any material and therefore could not be proceeded with, the learned Judge held as follows: "This will not, however, prevent the disciplinary authority from proceeding with the charge-sheet on the basis of submission of statement and of defence filed on behalf of the petitioner afresh if the disciplinary authority is of the opinion that still there are materials against the petitioner for such proceedings and in accordance with law after giving reasonable opportunities to the petitioner to produce evidence, both oral and documentary, as referred to hereinabove." 6. The respondents have now issued the second charge-sheet, which is impugned in these proceedings. In the second charge-sheet it was specifically stated that it superseded the Department, Memo No. 419 Page (Vig) dated 29.5.1988. 7. This Memo is the first charge-sheet. The respondents have now issued the second charge-sheet, which is impugned in these proceedings. In the second charge-sheet it was specifically stated that it superseded the Department, Memo No. 419 Page (Vig) dated 29.5.1988. 7. This Memo is the first charge-sheet. The second charge-sheet has been issued on the identical materials on which the first charge-sheet had been issued. The Language of the charges is identical. The statement of Articles of Charge and imputations of misconduct and the list of documents by which the Articles of charge claimed against the petitioner was proposed to be sustained are verbatim reproduction of the Articles of charge, statement of imputation of misconduct and list of documents issued with the first charge-sheet. 8. In my view, the second charge-sheet in liable to be quashed. 9. By the judgment on the first writ petition this Court had allowed the disciplinary authority to proceed with the first charge-sheet provided that there was material against the petitioner to so proceed. It must be noted that this Court had itself found that the material produced or relied upon by the respondents were not sufficient to support the charge-sheet. 10. The respondent could not have therefore set aside the earlier chargesheet and issued a second charge-sheet on the identical material. 11. The contention of the petitioner that the proceedings are vitiated by reason of the fact that the office concerned was proceeding with a dosed mind as the finding had already been arrived at on identical charge, is not required to be decided in these proceedings. 12. As far as the merits of the case is concerned the petitioner has relied upon 'The Gorkha Conquests" by Kumar Pradhan (1991) wherein it has been stated at P-60 that Zimba is a clan name of the Yolmos. Even on the merits therefore, the respondents contention in the charge-sheet that Zimbas are not Yolmos appears to be incorrect. 13. For the reasons aforesaid, the impugned charge-sheet and all proceedings thereunder including the notice of hearing dated 17.5.1991 are quashed. Even on the merits therefore, the respondents contention in the charge-sheet that Zimbas are not Yolmos appears to be incorrect. 13. For the reasons aforesaid, the impugned charge-sheet and all proceedings thereunder including the notice of hearing dated 17.5.1991 are quashed. It has been stated in paragraph 51 of the writ petition that the petitioner has been working as Deputy Magistrate and Deputy Collector, Darjeeling and has served for over 10 years but that he was being denied Scale No. 17 in accordance with the Revision of Scale of Pay and Allowance Rules, 1991 on the ground of the pendency of the disciplinary proceedings against the petitioner. This position as noted, has not been controved by the respondents. Therefore, the respondents are directed to grant Scale No. 17 in accordance with the Revision of Pay and Allowance Rules 1991 to the petitioner, if the same has been witheld on the ground of the pendency of the disciplinary proceedings. Such pay scale shall be granted within three weeks from date with effect from the date on which the petitioner would have otherwise been entitled to such pay scale. 14. The application is disposed of accordingly. 15. There will be no order as to costs. Petition allowed.