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2003 DIGILAW 636 (CAL)

AJOY KUMAR CHATTERJEE v. STATE OF WEST BENGAL

2003-12-16

MAHEMMAD HABEEB SHAMS ANSARI

body2003
MAHEMMAD HABEEB SHAMS ANSARI, J. ( 1 ) THIS is the third writ petition filed by the petitioner questioning the order of termination of his probation during the extended period of probation. Petitioner was appointed on probation to the post of General Manager of sugar Mill, Ahmedpur on November 15, 1994. The probation period prescribed was for six months, however, the same was extended twice firstly by six months by letter dated June 19, 1995 with effect from May, 1995 and thereafter, by letter dated October 20, 1995 upto March 31,1996. ( 2 ) DURING the said period petitioner was issued a show-cause-notice being Annexure P-4 dated November 24, 1995 and on December 12,1995 an order was passed terminating the service of the petitioner with effect from December 12, 1995. Petitioner questioned the said order of termination and by an order of Court dated August 28, 2001 in W. P. No. 1982 of 1998 writ application was allowed holding that even the probationer's service can be discontinued on some other grounds but on such serious charges impugned order could not have been passed without granting the petitioner ample opportunity in appropriate proceedings. The impugned order of termination dated December 12, 1995 was quashed and it was further observed as under:"and the respondents are not entitled to impose any penalty without appropriate proceedings granting opportunity to the petitioner. Admittedly as the petitioner moved the writ petition quite late, the said aspect has to be considered in deciding the payability of back wages and for this purpose the petitioner is granted liberty to approach the respondents when the respondents will decide the same in accordance with law. " ( 3 ) THEN review application was filed and the same was disposed of by an order dated June 21, 2002 whereby liberty was granted to the petitioner to file his reply to the show-cause-notice dated November 24, 1995, afresh within a period of two weeks from date and respondent authorities to complete the proceedings in accordance with law taking into consideration the said reply. Such decision to be taken within a period of six weeks from date of filing such reply. ( 4 ) ANNEXURE-P-12 is the reply of the petitioner to the show-cause- notice dated November 24,1995. Such decision to be taken within a period of six weeks from date of filing such reply. ( 4 ) ANNEXURE-P-12 is the reply of the petitioner to the show-cause- notice dated November 24,1995. ( 5 ) ANNEXURE-P-13 is a letter addressed to the petitioner communicating the decision dated August 12, 2002 purported to be in terms of the order of Court dated June 21, 2002. ( 6 ) SECOND writ application being W. P. No. 2075 of 2002 was filed by the petitioner questioning the said order. The impugned order in the said writ application dated August 12, 2002 was quashed and set aside with a direction upon respondent authorities "to hold a regular departmental enquiry against the petitioner in accordance with law by giving him appropriate opportunity to defend himself in the said proceedings. The respondent authority would be entitled to proceed from the stage of submission of the reply to the show-cause-notice. " ( 7 ) IT appears that pursuant to the above orders of Court an enquiry officer was appointed to conduct and enquiry with respect to the show- cause letter dated November 24, 1995 issued by the General Manager. ( 8 ) ENQUIRY officer submitted his report to the disciplinary authority which in turn was forwarded to the petitioner to make his representation against the same within a period of five days therefrom. ( 9 ) ANNEXURE-R-11 dated January, 2002 is the reply to the petitioner. The substantial defence or rather the only defence taken by the petitioner is as under:"i requested to the Enquiry Officer that if I am not allow to join in my service than all actions taken is void and illegal and contrary to the order of the Hon'ble High Court order dated 25. 09. 02 passed by hon'ble Justice Mr. Ashim Kumar Banerjee. Sir, for your kind information I am coming under Article 311 of the Constitution of india. " ( 10 ) THEREAFTER, the impugned order being Annexure P-18 dated january 18, 2003 was passed in the following terms ,:"sri Chatterjee was on probation when his service was terminated earlier on 12. 12. 95, afternoon. Upon consideration of the enquiry report and the abovesaid documents, it is decided that there is a general unsuitability of Sri Chatterjee for the post in question and consequently his services should not be continued. Accordingly, the termination order dated 12. 12. 95 stands. 12. 95, afternoon. Upon consideration of the enquiry report and the abovesaid documents, it is decided that there is a general unsuitability of Sri Chatterjee for the post in question and consequently his services should not be continued. Accordingly, the termination order dated 12. 12. 95 stands. In view of this position the question of paying subsistence allowance or back wages to Sri chatterjee does not arise. " ( 11 ) AS modified by Corrigendum Annexure R-12 dated March 7, 2003 by incorporating therein the following: "accordingly since the termination order dated 12. 12. 95 stands quashed, payment for the non-working period from 13. 12. 95 till date could not be made due to absence of requisite leave entitlement. " ( 12 ) LEARNED Counsel for the petitioner contended that the impugned order is liable to be quashed as the same is contrary to the order of Court. Referring to the order passed by Ashim Kumar Banerjee, J. dated september 25, 2002 in W. P. No. 2075 of 2002 it was submitted that the respondent authorities were required to conduct a regular departmental enquiry. No charge-sheet having been issued and petitioner not having been given opportunity to defend his case there has been violation of Article 311 of the Constitution of India that the impugned order suffers from violation of principles of natural justice. It was further submitted that there ought to have been a fresh order of appointment and suspension no such order having been passed by the respondent authorities the impugned order is liable to be quashed and set aside as being void. ( 13 ) I cannot accede to the above submissions. In the order of Court dated September 25, 2002 relevant portion of which has been extracted supra, respondent authority was entitled to proceed from the stage of submission of reply to the show-cause-notice. There was therefore no question of issuing fresh order of appointment and or suspension or fresh show-cause-notice as was sought to be contended by the learned Counsel for the petitioner. ( 14 ) AS regards the issuing of a charge-sheet is concerned, no doubt, as contended by the learned Counsel for the petitioner Mr. Sanat Chowdhury and as held by the Supreme Court in The Managing Director, u. P. Warehousing Corporation and Ors. ( 14 ) AS regards the issuing of a charge-sheet is concerned, no doubt, as contended by the learned Counsel for the petitioner Mr. Sanat Chowdhury and as held by the Supreme Court in The Managing Director, u. P. Warehousing Corporation and Ors. v. Vijay Narayan Vajpayee, reported in AIR 1980 SC 840 , a regular departmental enquiry takes place only after the charge-sheet has been drawn up and served upon the delinquent and the latter's explanation is obtained. However, being a matter of procedure and the object of such proceedings being to provide fair, adequate and reasonable opportunity of being heard to the person arraigned, in other words, principles of natural justice are required to be complied with. This was considered by the Supreme Court in State Bank of Bikaner and Jaipur and ors. v. Prabhu Dayal Grover, reported in 1995 (6) SCC 279 and it was, inter alia, held:". . . . . . . OF course, it may be said that the letter communicating the accusation made against Grover which we have reproduced above does not answer the description of a 'formal charge-sheet' but then the contents thereof specifically disclose the charge levelled against him, namely, that of accepting a bribe of Rs. 300 from Shri maniram in the year 1978 for issuing a demand draft in favour of him and his father. It may also be said that the exact date of acceptance of bribe was not disclosed therein but then along with the letter was enclosed a copy of the complaint received from maniram which not only discloses that date but also satisfied the requirement of a 'statement of allegations' envisaged in Regulation 68 in that all the details regarding the demand and acceptance of the bribe have been stated. It cannot, therefore, be said that Grover was not fully apprised of the accusation levelled against him to enable him to effectively reply thereto, In other words, the provisions of the regulation have been substantially complied with, though not formally. This conclusion of ours is strengthened by Grover's reply to the charge-sheet which clearly indicates that he fully understood the charge levelled against him. . . . . . . . . This conclusion of ours is strengthened by Grover's reply to the charge-sheet which clearly indicates that he fully understood the charge levelled against him. . . . . . . . . " ( 15 ) IN the instant case the show-cause-notice dated November 24, 1995 was not quashed and the directions of Court was to proceed with the same from the stage of the reply to the said show-cause-notice. ( 16 ) MR. Ashok Sarkar appearing along with Ms. Anupa Ghosh, learned counsel for the respondents contended that the show-cause-notice dated november 24, 1995 being Annexure P-4 clearly brings out the imputation of charge. The thrust of the imputations, it was contended, is with regard to the actions of the petitioner which had been taken by him while on probation. It was further contended that petitioner has not raised any objections with regard to denial of fair opportunity or nor has any allegation been made with respect to the vagueness of any charge. Even in the reply submitted by the petitioner the only objection taken is that the entire action is void as petitioner has not been allowed to join in service. Petitions, it was contended, has not been able to establish any prejudice caused to him by the said procedure followed by the respondent authorities in conducing the enquiry based on which the impugned order of termination being Annexure P-18 dated January 18, 2003 has been passed. It was thereupon contended that no case has been made out to warrant interference with the impugned order dated January 18, 2003. ( 17 ) AT first blush, the submissions made by the learned Counsel for the petitioner as regards the absence of the charge-sheet looked plausible but on closer scrutiny and more particularly in view of the submissions made on behalf of the respondent authorities by their learned Counsel this court is of the view that the said contentions of petitioner cannot be accepted. ( 18 ) AS already noticed supra, by the orders of Court a regular enquiry was directed to be conducted from the stage of reply to the show-cause- notice. The respondent authorities considered the reply and decided to conduct a departmental enquiry by appointing an enquiry officer. Petitioner though he appeared before the enquiry officer, he made no submissions in his defence. The respondent authorities considered the reply and decided to conduct a departmental enquiry by appointing an enquiry officer. Petitioner though he appeared before the enquiry officer, he made no submissions in his defence. The only grievance made before the enquiry officer by the petitioner was that he had not received any charge-sheet and that as he was not allowed to join duty, so he will not answer any questions. Similar stand has been taken before the disciplinary authority in the representation made by the petitioner with respect to the conclusions arrived at by the enquiry officer (Annexure R-11 ). The thrust of the imputation of charges in the show-cause-notice dated November 24,1995 are with respect to certain acts attributed to the petitioner while he was on probation which were beyond his competence namely, seeking loan from a bank without approval, writing letter to the Principal of Polytechnic to sponsor candidates. The other charge was leaving station even without submitting routine information to the Managing Director and overstaying without applying for leave. ( 19 ) THE matters were thus within the special knowledge of the petitioner. It was open to the petitioner to have placed his side of the case before the enquiry officer, opportunity for which purpose was afforded to him. Petitioner failed to avail of the same. Enquiry officer has given reasons in support of the conclusions arrived at by him. ( 20 ) I am therefore of the view that petitioner having raised no valid defence before the enquiry officer/ disciplinary authority nor were any objections which he ought to have raised before the enquiry officer as regards prejudice, if any, caused to the petitioner by non-issue of charge- sheet were raised nor petitioner has been able to establish before this court any prejudice caused to him by non-issue of formal charge-sheet there is no ground to interfere with the impugned order merely on the ground that no charge-sheet had been issued. Petitioner was afforded an opportunity to make his submissions before the enquiry officer/disciplinary authority. Petitioner has not availed of the said opportunity and has not placed any defence to the charges/imputations levlled against him which have been noticed in the orders of Court being of serious nature. For the reasons aforestated, writ application is liable to be and is accordingly dismissed. No costs.