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2001 DIGILAW 231 (CAL)

CHINMOY GUHA THAKURATA v. STATE OF WEST BENGAL

2001-04-25

A.K.MATHUR, GIRISH CHANDRA GUPTA

body2001
ASHOK KUMAR MATHUR, C. J. ( 1 ) THIS is an appeal directed against the order passed by the learned single Judge dated May 9, 1996 whereby the learned single Judge has dismissed the writ petition filed by the petitioner. ( 2 ) THE brief facts which are necessary for the disposal of the present appeal are that the petitioner filed a writ petition under Article 226 of the Constitution of India praying for revocation and cancellation of the charge-sheet served on him; the suspension order, all disciplinary proceeding including the alleged show cause notice; proposed termination from service and for a direction for reinstatement of the petitioner with all back wages. The petitioner was working as an Assistant Fitter in general shift in the Kalyanl Spinning Mills limited Unit No. 1 (hereinafter referred to as the Mill ). He was a permanent employee of the said mill. On September 23, 1982 about 30-40 members of the rival Unions went out of the mill's premises from the main gate without gate pass disregarding the security staff on duty to attend a mass rally organised by the said Union at 1. 00 p. m. On that date the workers left duty without any permission and by force. That fact was brought to the notice of the Management, including the Officiating Manager, Sri D. K. Biswas and S. N. Sengupta. But no notice was taken by the representatives of the Management of the said unlawful act of the workers. It is alleged that peaceful demonstration was arranged immediately thereafter by some of the members of the Kalyani Spinning Mills workmen's Union, of which the petitioner was a member and they stormed into the chamber of the Manager before the Officiating manager, Labour Officer, Sri D. K. Biswas and others. It is alleged by the Management that the petitioner had wilfully used abusive and threatening words to the Labour Officer and shri D. K. Biswas. When both the said Labour officer and Mr. D. K. Biswas protested against the said unruly behaviour of the petitioner, they were physically pushed by this petitioner. For this misconduct the petitioner was charge-sheeted and departmental inquiry was directed against him. An Inquiry Officer was appointed to conduct the inquiry. When both the said Labour officer and Mr. D. K. Biswas protested against the said unruly behaviour of the petitioner, they were physically pushed by this petitioner. For this misconduct the petitioner was charge-sheeted and departmental inquiry was directed against him. An Inquiry Officer was appointed to conduct the inquiry. The petitioner filed a reply to the charge-sheet and he admitted that a demonstration was arranged by his Union on that date at the relevant time and place and there was a hot discussion as the Management refused to hear the peaceful demonstrators. The inquiry Officer on the basis of the facts found the petitioner guilty of abusing the Labour officer, in particular, in a most abusive and vulgar words and he submitted his report. The disciplinary authority agreeing with the aforesaid finding of the Inquiry Officer and being satisfied that the petitioner was given all reasonable opportunity to defend himself in the inquiry proceeding, proposed a penalty against the petitioner by dismissing him from service of the mill by issuing the second show cause notice dated November 28, 1984. Thereafter the Company by its order dated March 25, 1986 dismissed the petitioner from service of the company. Hence the petitioner filed the present writ petition challenging the order of the Management dismissing him from service. The petitioner challenged the order on the ground that the charge-sheet was vague and it does not disclose any offence. It was alleged that the statement of allegations and the charge-sheet are different. It was also alleged that the Inquiry Officer found the petitioner guilty of the charges which was not in the charge-sheet. It was also alleged that the petitioner was not permitted to have legal assistance though he had prayed for the same. It was alleged that the disciplinary authority has taken extraneous consideration, that is past record of the petitioner, while issuing the second show cause notice. It was also alleged that the copies of the written complaints filed by different officers of the mill were not supplied to him. The writ petition was opposed by the management and they denied all the allegations made by the petitioner and it was contended that the petitioner was given all reasonable opportunity during the inquiry and there is no violation of principles of natural justice. The writ petition was opposed by the management and they denied all the allegations made by the petitioner and it was contended that the petitioner was given all reasonable opportunity during the inquiry and there is no violation of principles of natural justice. It was also pointed out that the petitioner had the alternative remedy of filing an appeal as per the standing order which he has not availed. The learned single Judge examined all these contentions raised by the learned counsel for the petitioner and after considering over the matter, dismissed the writ petition of the petitioner by his order dated May 9, 1996. Hence the present appeal has been filed by the petitioner. ( 3 ) WE have heard learned counsel for the parties and perused the records. Learned counsel for the appellant has repeated all the arguments which were raised before the learned single Judge and submitted that the principles of natural justice has not been followed. In this connection learned counsel for the appellant invited our attention to the decision namely bhagat Ram v. State of H. P. reported in AIR 1983 SC 454 : 1983 (2) SCC 442 : 1983-II-LLJ-1; Deputy Inspector General v. Shib Kumar Ray, reported in 1994 2 CLJ 193; gopal Krishnaji Ketkar v. Mohammed Haji latif reported in AIR 1968 SC 1413 ; and State of U. P. v. Narain Singh reported in 1973 Lab ic 717 (All ). ( 4 ) THE petitioner was charged with the following charges. The charge-sheet reads as under:"on September 23, 1982 while on duty in general shift during the demonstration between about 1. 30 p. m. and 3. 30 p. m. made by the Workmen's Union in the chamber of the Management before the officiating Manager, Labour Officer, welfare Officer, Sri A. Roy and Sri P. Mukherjee both Carding and Spinning assistant, Sree Tapan Roy, Debajit Ghosh and Haripada Paul, Textile Supervisors, Sri b. Roy Chowdhury. Asstt. Carding and spinning Master, you wilfully used abusive, threatening and nasty vulgar words to the labour Officer such as: (Vernacular matter omitted)when both the Labour Officer and Sri D. K. Biswas, Asstt. Electric Engineer (Officiating manager) stood up to protest against such nasty behaviour you also physically pushed and dashed both the Labour Officer and the officiating Manager. Asstt. Carding and spinning Master, you wilfully used abusive, threatening and nasty vulgar words to the labour Officer such as: (Vernacular matter omitted)when both the Labour Officer and Sri D. K. Biswas, Asstt. Electric Engineer (Officiating manager) stood up to protest against such nasty behaviour you also physically pushed and dashed both the Labour Officer and the officiating Manager. The acts alleged above, if proved, constitute gross misconduct in accordance with the provisions of the certified Standing Orders of the Company applicable to you. you are, therefore, called upon to show cause in writing within 24 hours from the receipt hereof as to why you should not be suitably punished for the following misconduct:1. Riotous and disorderly behaviour during working hours at the establishment and an act, subversive of discipline (certified standing Order No. 18 (c) (viii) ). 2. Threatening, intimidating, abusing and assaulting employees within the mill premises (certified Standing Order No. 18 (c) (xxiv) ). If you fail to submit your written explanation within the stipulated time limit it will be presumed that you have accepted the charges brought against you and you have no explanation to offer in your defence and the matter will be determined ex parte. Further, you are to note that you are placed under suspension pending enquiry on and from October 7, 1982. " ( 5 ) THE basic charge against the petitioner was of his unruly behaviour on September 23, 1982 in the chamber of the Officiating manager, Labour Officer and Welfare Officer. All these persons have come in the witness box and the Labour Officer (PW1, S. N. Sengupta)has deposed before the Inquiry Officer about the misbehaviour of the petitioner using most obscene words, PW3, Mr. S. K. Mukherjee deposed about the abusive language used by the delinquent against the Labour Officer. S. K. Mukherjee and PW4, Mr. A. K. Mukherjee supported the allegation of the so called unruly behaviour of the delinquent against the Labour officer. PW 5, Sri Bimalendu Roy Chowdhury has also deposed about the unruly behaviour of the delinquent and using abusive words for the labour Officer and Sri D. K. Biswas. On the basis of this evidence the Inquiry Officer has found the petitioner guilty. It cannot be said that the charge is vague or indefinite. PW 5, Sri Bimalendu Roy Chowdhury has also deposed about the unruly behaviour of the delinquent and using abusive words for the labour Officer and Sri D. K. Biswas. On the basis of this evidence the Inquiry Officer has found the petitioner guilty. It cannot be said that the charge is vague or indefinite. This kind of conduct of the delinquent of entering into the chamber of the Management and abusing the labour Officer is hardly becoming of the disciplined worker of the mill and this is a finding of fact recorded by the Inquiry Officer on the basis of the evidence. Therefore, we are of the opinion that the finding recorded by the inquiry Officer on the basis of the relevant evidence goes to show the guilt of the delinquent. The argument that the charge-sheet is vague and evidence is not consistent, has no merit and the same is overruled. In this connection our attention was invited to the decision in the case of State of U. P. v. Narain singh, (supra) wherein the learned single Judge of the Allahabad High Court held that the charge-sheet did not disclose the information and the evidence which was sought to be produced and the same amounts to denial of reasonable opportunity, but that is not the case here. Here, the charges are definite and the allegations are also definite, therefore, nothing turns in this case. Our attention was also invited to the decision in the case of Gopal Krishnaji ketkar v. Mohammed Haji Latif (supra), where the question was not leading the best evidence in support of a charge and if that best evidence is withheld then, it was held that adverse inference can be drawn. There is no such situation in the present case. The Labour officer who was manhandled appeared in the witness box and substantiated the allegations. Hence this case is also of no help to the petitioner. ( 6 ) IT is also pointed out that the delinquent was not given legal assistance in departmental proceeding. Legal assistance cannot be given as a matter of right, it depends upon the nature of the case involved. If the case is of a very complex nature or that the other side is being assisted by a legal expert, then only legal assistance can be made available in order to do justice to the delinquent. Legal assistance cannot be given as a matter of right, it depends upon the nature of the case involved. If the case is of a very complex nature or that the other side is being assisted by a legal expert, then only legal assistance can be made available in order to do justice to the delinquent. But in the present case both the questions are missing. It was a case of simple misbehaviour on the part of the delinquent and evidence was laid in his presence. He has exercised his right of cross-examination of the witnesses, therefore the argument that on account of the lack of legal assistance has caused any prejudice to the petitioner cannot be accepted. In the departmental enquiry one has to see that whether any prejudice has been caused to the delinquent or not. In the present case, as mentioned above, it is a case of plain and simple misbehaviour by the delinquent to the Officers of the Management and in that there was no legal complications involved, nor the management was assisted by any trained legal person. Therefore, no prejudice was caused to the petitioner. He has exercised his right to cross-examine the witnesses. Hence nothing turns on the question of not providing legal assistance to the petitioner/appellant. In this connection our attention was invited to decision of the Apex Court in the case of Bhagat Ram v. State of H. P. (supra ). In this case the question was breach of principles of natural justice for not providing help of a departmental representative during the inquiry. In the present case the petitioner has sought the help of a legal practitioner which was not permissible. As far as the departmental proceedings are concerned, the petitioner had fully exercised his rights by cross-examining the witnesses. Therefore, there is no breach of the principles of natural justice. ( 7 ) IT is also pointed out that some extraneous matters of past record was taken into consideration for imposing punishment on the petitioner. It is always open to the management to consider at the time of imposing the quantum of punishment about the antecedent of the delinquent. Sometimes it can happen that only a solitary incident in which the delinquent is found guilty but his past record was good, then that can be relevant factor in mitigating the quantum of punishment. It is always open to the management to consider at the time of imposing the quantum of punishment about the antecedent of the delinquent. Sometimes it can happen that only a solitary incident in which the delinquent is found guilty but his past record was good, then that can be relevant factor in mitigating the quantum of punishment. Likewise, if it is found that the past record of the delinquent has been notorious and he is guilty of repeating this kind of delinquency repeatedly then in that case the past conduct of the delinquent can be taken Into consideration before awarding the quantum of punishment. In the present case the petitioner has been guilty of omission and commission on a number of times. It is recorded that in the past as many as on seven occasions he has been involved in various offences of similar nature of abusing, threatening and disorderly behaviour with various persons like Maintenance superintendent-cum-Safety Officer and a domestic inquiry was also held against him and he was let off on account of expressing his repentance with a warning only to give a chance to the delinquent to mend his ways, that seems to have no effect. There is nothing wrong in taking into consideration the past behaviour of the delinquent at the time of deciding the quantum of punishment. Learned counsel of the appellant referred to the case of Bhagat Ram v. State of H. P. (supra) wherein it was held that the punishment should not be disproportionate to the gravity of the misconduct. In the present case the petitioner is a habitual trouble maker and in the last delinquency he has surpassed all limits by man handling the Labour Officer in the chamber of the Manager. Such kind of unruly behaviour cannot be countenanced. In the case of Deputy Inspector General v. Shib Kumar Ray (supra), the question was with regard to disproportionate punishment and it was held that the punishment is disproportionate to the misconduct. We have already held above that the conduct of the petitioner was highly unbecoming of an employee, he has taken law into his own hand and assaulted the Labour officer in the chamber of the Manager and his past record also does not speak very high of him. Therefore, in the present case it cannot be said that the punishment was disproportionate to the guilt. Therefore, in the present case it cannot be said that the punishment was disproportionate to the guilt. ( 8 ) HENCE, as a result of the above discussion, we are of the opinion that the appeal has no merit and the same is dismissed. ( 9 ) GIRISH CHANDRA GUPTA, J. I agree.