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2002 DIGILAW 379 (GAU)

Jaba Rani Ghosh v. Union of India

2002-09-05

D.BISWAS

body2002
D. BISWAS, J.: Heard Mr. D.P. Chaliha, learned senior counsel for the petitioner and also Mr. B. Sarma, learned Addl. CGSC for respondent Nos. 1,2, and 3. None appeared for the respondent No. 4, Regional Manager, Central Warehousing Corporation. 2. The petitioner was appointed as Warehouse Assistant Grade-II on compassionate ground against a regular vacancy by an order passed on 13.8.99 (Annexure-D). Sometime thereafter, a department proceedings was initiated against her on the allegation that she had submitted false information about her previous employment as a teacher in Uttar Hozai Nimna Buniadi L.P. School. On completion of the disciplinary proceedings, the respondent No. 4 as disciplinary authority terminated the services of the writ petitioner by the impugned order dated 17.8.2001 (Annexure-W). Mr. Chaliha, learned counsel submitted that the department proceedings is vitiated for non compliance of the mandatory provisions as well as the principles of natural justice. Mr. Chaliha pointed out that the writ petitioner was not furnished with the copies of the essential documents relied upon by the disciplinary authority. Her request for appointment of a particular person as a defence counsel was also rejected. 3. Rule 61 of the Central Warehousing Corporation (Staff) Regulations, 1986 lay down the procedure for imposition of major penalties. Clause (iii) of Rule 61 provides that when it is proposed to hold an inquiry, the disciplinary authority shall frame definite charges on the basis of the allegations and the charges so framed with a statement of the allegations, a list of documents and a list of witnesses be furnished to the employee. In the explanation appended to clause (iii) it has been provided that it will not be necessary to show the documents listed in the charge sheet or any other sheet or any other document to the employee at this stage. Mr. Chaliha, learned counsel submitted that this explanation to clause (iii) is contrary to the principles of natural justice and in a disciplinary proceedings, the delinquent officer has to be supplied with the copies of the documents or at least an opportunity to inspect the same if he/she so desires before the proceedings started. 4. I do not find any reason to hold a different view since the principles of natural justice require that at least the delinquent officer/employee in a disciplinary proceedings should be allowed to inspect the documents. 4. I do not find any reason to hold a different view since the principles of natural justice require that at least the delinquent officer/employee in a disciplinary proceedings should be allowed to inspect the documents. In the instant case, the petitioner requested for furnishing copies of the documents mentioned in the chargesheet In reply, the Regional Manager by the memorandum dated 3.11.2000 rejected the same and informed the writ petitioner that she will be allowed to inspect the listed documents only during the course of departmental enquiry as and when inquiry proceedings starts. 5. This act of the disciplinary authority clearly shows that the writ petitioner was deprived of going through the documents proposed to be relied upon in the proceedings and, therefore, she was not in a position to prepare her defence. This Court being a Court of equity as well, despite the provision in the explanation to clause (iii) of Rule 61, is of the opinion that refusal to furnish copies of the documents or permission to inspect the documents before the enquiry proceedings started, is a breach of the principles of natural justice and it vitiates the proceedings altogether. 6. Besides, Mr. Chaliha also referred to the memorandum dated 19.1.2001 issued by the respondent authority whereby the writ petitioner's prayer to allow Sri M. Dasgupta, Ex-Secretary of the Corporation to act as her defence assistant was rejected. By the aforesaid memorandum (Annexure-R) the respondent authority rejected here prayer on the ground that she is entitled to engage a serving employee of the Corporation. Rule 61 shows that the employees facing departmental proceedings may take the assistance of any employee of the Corporation, but not entitled to engage a legal practitioner for the purpose. The choice of a defence assistant cannot be restricted to the serving employees of the Corporation only. This, in my opinion, is also in clear breach of the principles of natural justice as because other employees serving under the Corporation are expected to have allegiance and loyalty to their employer and may fail in discharging their duty as defence assistant independently without fear and favour. Therefore, an employee cannot be deprived of his right to appoint a person of his choice as a defence assistant. 7. Therefore, an employee cannot be deprived of his right to appoint a person of his choice as a defence assistant. 7. The disciplinary authority, therefore, fell in error in rejecting the request/prayer of the writ petitioner for appointment of Sri Das Gupta as defence assistant and, thus, denied the opportunity to the writ petitioner to defend herself in the proceedings. This, in the considered opinion of this Court, amounts to breach of the principles of natural justice. Therefore, the inquiry report submitted by the Inquiry Officer having been in flagrant violation of the principles of natural justice is liable to be quashed. 8. Before the final order is recorded in this case, it is considered necessary to advert to the nature of the charge framed against the writ petitioner. The petitioner joined the services of the Corporation on 27.9.99. Annexure-B filled up by her at the time of joining, on which the department proceedings has been initiated, shows that the writ petitioner had written the word "nil" against column 11A meaning thereby that she was not employed any time before. This statement by the writ petitioner in column 11A may be by inadvertence since at the relevant time she was without any employment. The charge brought against her by the authorities that she was serving as teacher in Uttar Hozal Nimna Buniadi LP School during the period between 29.12.88 and 22.9.99 and the petitioner has suppressed this information at the time of joining the Corporation, it appears that the petitioner signed the aforesaid statement on 27.9.99 and on that date she was not in the service of the School as resignation submitted by her on 16.11.98 was accepted after about 10 months i.e. on 23.9.99. There is no dispute that on 27.9.99 she was not a teacher in the aforesaid school. Therefore, the statement made by her in column 11A is not of such magnitude to warrant termination or dismissal from service. 9. In the facts and circumstances of the case, this Court is of the opinion that the disciplinary proceedings is vitiated for breach of the principles of natural justice in refusing to allow the petitioner copies of the documents and inspect the same before the proceedings started and to appoint defence assistant of her choice. 10. The writ petitioner stands allowed and the impugned order dated 17.8.2001 (Annexure-W) is hereby set aside. 10. The writ petitioner stands allowed and the impugned order dated 17.8.2001 (Annexure-W) is hereby set aside. The petitioner shall be re-instated in service forthwith. Regarding backwages, the respondent authority shall consider and pass appropriate orders.