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2001 DIGILAW 175 (CAL)

Dulal Chandra Das v. State of West Bengal

2001-03-28

MAHEMMAD HABEEB SHAMS ANSARI

body2001
JUDGMENT M.H.S. Ansari, J.: The petitioner is a Conductor and was proceeded with departmentally in respect of the two charges levelled against the petitioner, which are as under: "1. 12(twelve) unbooked passengers were travelling from Hazaribag to Ranchi, actual fare Rs. 19.00 cash only, after detection proper tickets were issued and thereafter seized by the checking personnel. Hence, you are charged for violation of regulation Nos. 26 and 29 of the NBSTCESR. Article of charge-II In course of verification of cash a sum of Rs. 43.00 was found as excess in your cash bag." 2. Based upon the findings of guilt arrived at by the enquiry officer, the disciplinary authority agreeing with the same passed an order imposing the punishment of dismissal of service from the Corporation. 3. Being aggrieved thereby, petitioner preferred an appeal. The same was also dismissed; questioning the same the instant writ application has been filed. The writ application was entertained and directions for affidavits were issued by Court by its order dated 10.2.97. 4. Neither affidavit in-opposition has been filed nor was there any representation made on behalf of the respondents. When the matter appeared before this court on 27.2.2001 arguments of learned counsel for the petitioner were heard and matter was adjourned to afford an opportunity to the respondents. However, on the adjourned date also, none appeared on behalf of the respondents nor was any representation made on their behalf. 5. As the writ petition had been entertained, I did not consider it appropriate to relegate the petitioner to avail of the alternate remedy under the Industrial Disputes Act. 6. The enquiry has been conducted in accordance with the principles of natural justice and the petitioner has been afforded every opportunity thereat. The conclusions arrived at are based upon the material on record. The disciplinary authority has passed a detailed order and disciplinary authority agreed with the findings of the enquiry officer and held the petitioner guilty of the charges brought against him. 7. Learned counsel for the petitioner raised two fold contentions before this court. One, that the driver of the vehicle in question on the date of incident was not produced as defense witness during the enquiry. The other contention advanced is with regard to the imposition of the punishment. 8. 7. Learned counsel for the petitioner raised two fold contentions before this court. One, that the driver of the vehicle in question on the date of incident was not produced as defense witness during the enquiry. The other contention advanced is with regard to the imposition of the punishment. 8. As regards the first contention, learned counsel submitted that the petitioner's specific plea was that the passengers boarded the bus forcibly despite objection from the driver. Therefore, the petitioner wanted the driver to be produced as a defence witness and was denied of the said opportunity by the enquiry officer. 9. The above submission is without any foundation. No supporting record has been placed before Court that the petitioner ever made any request for examination of the driver as defence witness. On the contrary, from the order of the disciplinary authority, it will appear that the disciplinary authority has dealt with this aspect of the matter as under: ".......... Shri Das pleaded that those passengers boarded the bus forcibly despite objection from the Driver for which he produced one witness who claimed to be a passenger in the bus, but not the Driver of the service......" In the circumstances, the said contention of the learned advocate for the petitioner is only an after thought and has to be rejected. There is no warrant, therefore, for interfering with the findings of the enquiry officer or the order of the disciplinary authority as regards the guilt of the petitioner in relation to the charges brought against him. 10. As regards the second contention viz, awarding of punishment of dismissal, it is the contention of the learned counsel for the petitioner that the disciplinary authority while awarding the said punishment has taken into account the past record of the petitioner. Reliance has been placed upon that portion of the disciplinary authority's order which reads as under: "Shri Das was demoted to the post of Cleaner earlier and after certain period of service was again given the opportunity to be posted as Conductor, but he did not safe-guard the financial interest of the Corporation and preferred to continue misappropriation of Corporation revenue. He does not deserve any mercy and I pass following orders." The Appellate Authority has also arrived at similar conclusion in the following terms: . "...........I., therefore, agree with the E.O. in respect of his findings of the case. He does not deserve any mercy and I pass following orders." The Appellate Authority has also arrived at similar conclusion in the following terms: . "...........I., therefore, agree with the E.O. in respect of his findings of the case. I have also consulted the previous records of the appellant and found that on many occasions he was punished for committing offences. In the past, he was also removed from the services of the Corporation for misconduct and on appeal the then appellate authority given him a chance to rectify himself. But again he tried to misappropriate Corporation revenue while he was deputed to conduct the Siliguri-Ranchi Service." 11. Mr. Partha Sarathi Bhattacharjee, learned advocate appearing along with Mr. Ashoke De, on behalf of the petitioner relied upon the judgement of the Supreme Court in the case of State of Mysore vs. K. Manche Gowda, AIR 1964 SC 506 . Therein, as regards the imposition of punishment based upon previous misconduct which was not disclosed to the petitioner either at or before the disciplinary enquiry or by any notice issued by the disciplinary authority before imposition of the said punishment, the Supreme Court held as under. "Under Article 311 (2) of the Constitution, as interpreted by this Court, a Government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the Government servant must be told of the grounds on which it is proposed to take such action: see the decision of this Court in the State of Assam vs. Bimal Kumar Pandit, Civil Appeal No. 832 of 1962 dt. 12-2-1963: ( AIR 1963 SC 1612 ). If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment: he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment: he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment was mainly based upon the previous record of a Government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the knowledge of the Government servant. It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him, nor would it be an adequate answer to saw that he saw that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record. This contention misses the real point, namely, that, what the Government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. It is not possible for him to know what period of his past record or what acts or omissions of his in a particular period would be considered. If that fact was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers. Even if the authority concerned took into consideration only the facts for which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable. but whether he has been given an opportunity to give his explanation. He may have many other explanations. The point is not whether his explanation would be acceptable. but whether he has been given an opportunity to give his explanation. We cannot accept the doctrine of "presumptive knowledge" or that of "purposeless enquiry" as their acceptance will be subversive of the principle of "reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record. this should be included in the second notice so that he may be able to give an explanation." (Emphasis supplied) 12. The Supreme Court in that case without deciding the question whether such record should be made the subject matter of charge at the first stage of enquiry, however, observed that nothing in law prevents the punishing authority from taking that fact into consideration during the second stage of enquiry, for essentially it relates to the domain of punishment rather than to that of guilt. It must be observed that the Mysore case (supra) arose in the context of Article 311(2) of the Constitution. 13. A Division Bench of this Court in Indian Oil Corporation vs. Panchanan Manna, 1998 (2) C.L.T. 511 (HC), while dealing with a similar contention in a matter arising under the 'standing order', relevant portion of the said 'standing order' clause 20 (V) (g) whereof was in the following terms; "In awarding punishment of dismissal under these Standing Orders, the disciplinary/appellate authority shall take into account the gravity of the misconduct, the previous record of service, if any, of the workman concerned and any other extenuating or aggravating circumstances that may exist." The Division Bench negatived the contention in the following terms: "The disciplinary authority could always take into consideration the past record of the delinquent without giving hearing in the facts of this case and particularly in the context of the 'standing orders.' The finding of the learned single Judge that the punishment imposed should be set aside on this ground could not be accepted................." 14. The instant case is not governed by the 'standing orders' but by the Regulations called the North Bengal State Transport Corporation Employees Service Regulations. The instant case is not governed by the 'standing orders' but by the Regulations called the North Bengal State Transport Corporation Employees Service Regulations. The said Regulations have been framed with previous sanction of the State Government and in exercise of the power conferred by sub section (1) read with clause (c) of sub-section (2) of section 45 of the Road Transport Corporation Act, 1950 (64 of 1950). The said Regulations regulate the conditions of appointment and service and the scales of pay of officers and servants of the Corporation. Regulation 38 prescribes the penalties, which may for good and sufficient reason be imposed upon employees. 15. Regulation 41, inter alia, lays down that no order of dismissal removal or reduction shall be passed on an employee unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. There is thus no regulation akin to the 'standing order' quoted supra. The ratio laid down by the Supreme Court in Mysore case (supra), though in the context of Article 311 of the Constitution would in the circumstances apply to the case on hand. 16. In the instant case, the petitioner was not informed by the disciplinary authority either during the course of enquiry or by any notice before the impugned punishment was imposed that the past conduct of the petitioner would be taken into consideration. The petitioner thus had no opportunity to give his explanation in relation to his past conduct. It must, therefore, be held that it was incumbent upon the disciplinary authority to give the petitioner a reasonable opportunity to show cause against the proposed punishment based on his previous punishments or his previous record. Not having complied with this requirement of law, the order passed by the disciplinary authority as affirmed by the Appellate Authority with respect to the imposition of penalty cannot be sustained and has to be set aside. 17. Accordingly, the punishment imposed by the disciplinary authority and as affirmed by the appellate authority be and is hereby quashed and set aside. 18. 17. Accordingly, the punishment imposed by the disciplinary authority and as affirmed by the appellate authority be and is hereby quashed and set aside. 18. The matter is remitted back to the disciplinary authority to issue appropriate notice calling upon the petitioner to show cause against the punishment proposed and if the proposed punishment is sought to be baseds on the previous punishments or the previous bad record of the petitioner, the same should be included in the notice with particulars thereof so that the petitioner may be able to give an explanation. Thereafter the petitioner shall be afforded .an opportunity of being heard in the matter and the disciplinary authority shall be at liberty to pass appropriate orders in accordance with the law. The aforesaid exercise shall be completed within a period of three months from date of communication of a copy of this order. 19. It is hereby clarified that for the aforesaid period of three months, the petitioner shall not be entitled to join duty nor entitled to any remuneration or allowances or any arrears of salary. The same shall, however, be subject to and abide by the orders that may be passed by the disciplinary authority. 20. The writ application is accordingly allowed in part in terms as above. There shall, however, be no order as to costs. Let urgent xerox certified copy of this judgment and order be furnished to the parties, if applied for, on priority basis. Application allowed in part and case remitted with directions on the question of imposition of the punishment.