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2008 DIGILAW 1076 (CAL)

Chairman, Kolkata Port Trust v. Basudeb Soren

2008-12-18

KUMAR CHATTOPADHYAY, TAPAN MUKHERJEE

body2008
JUDGMENT: CHATTOPADHYAY, J. (1). This appeal has been preferred at the instance of the Kolkata Port Trust authorities assailing the judgment and order passed by the learned Single Judge whereby and. whereunder the said learned Judge allowed the writ petition filed by the respondent herein. (2). Going through the materials on record we find that three charge-sheets were issued against the respondent/writ petitioner on three different occasions on the charge of gross misconduct due to unauthorised absence from duties for a prolonged period. (3). The first charge-sheet was issued against the writ petitioner on 8th February, 1991 containing the following charges : " Article-I That Shri Basudeb Soren, L. D. Clerk, P and E Division, Haldia Dock Complex is charged with gross misconduct inasmuch as he has been reported to be absenting from duties unauthorisedly since 12.11.1990 without any intimation or prior permission whatsoever. The above fact of the said Shri Soren amounts to desertion from service under Haldia Dock Complex, Calcutta Port Trust which is a gross misconduct. Article-II The said Shri Basudeb Soren, L. D. Clerk, P and E Division, Haldia Dock Complex is charged with gross misconduct inasmuch as, he had a poor record of attendance and had remained unauthorisedly absent from duties for 8 days in 1989 just after joining service under Haldia Dock Complex on 2.9.1989 and for 130 days in 1990 (upto 15.10.90). Details of the aforesaid record of absenteeism is given in the imputations of the charge under Annexure-ll. The above act of the said Shri Soren amounts to habitual unauthorised absenteeism on his part which is a gross misconduct." (4). The respondent/writ petitioner was, however, absolved of the aforesaid charges by the order dated 12th September, 1991 passed by the Disciplinary Authority which was communicated by the Assistant Manager of the Kolkata Port Trust to the writ petitioner by the Memo dated 25th September, 1991. The aforesaid Memorandum is quoted hereunder: "Memorandum Shri Basudeb Soren, Lower Division Clerk, P and E Division, Haldra Dock Complex was issued with a charge-sheet memorandum No. Disc./ 339/1047 dt. 8.2.91 on the allegation of gross misconduct for unauthorisedly absenting from duties for a prolonged period. 3. On careful consideration of the representation dt.9.8.91 submitted by the said Shri Soren, the Dy. Chairman, the Disciplinary Authority, has passed an order dt. 8.2.91 on the allegation of gross misconduct for unauthorisedly absenting from duties for a prolonged period. 3. On careful consideration of the representation dt.9.8.91 submitted by the said Shri Soren, the Dy. Chairman, the Disciplinary Authority, has passed an order dt. 12.9.91 as follows:-seen the medical report and the representation of the CSE, it appears that the CSE has been suffering from mental imbalance and insanity. . He has been under treatment in the CPT Hospital and elsewhere. CMO, CPT has since certified that the CSE is fit to resume his duties. I am inclined to take a compassionate view about the CSE in view of his mental disorder. It is therefore ordered that the CSE should be warned that he should improve his attendance in office. There should not be recurrence of unauthorised absence on his part in future, in view of the fact that the Medical Board has certified his to be fit. Sd/-12.9.91 Dy. Chairman 4. Accordingly the order of warning is hereby communicated to Shri Basudeb Soren, Lower Division Clerk, P and E Division, Haldia Dock Complex with the directions contained in the Dy. Chairmans order quoted above. Shri Soren shall acknowledge receipt of this communication. Sd/-R. Choudhuri Asst. Manager por Manager (P and IR)" (5). The second charge-sheet was issued against the writ petitioner on 17th October, 1992 containing the following charges: "Article of Charge-I That Shri Basudeb Soren, L.D. Clerk, P and E Division, Haldia Dock Complex is charged with gross misconduct inasmuch as he has been reported to be absenting from duties unauthorisedly since 8.10.91 without prior permission. The above act of said Shri Soren, if proved, will amount to unauthorised absence from duties for a prolonged period implicating desertions from service, which is a gross misconduct. Article of Charge-ll The said Shri Basudeb Soren, L. D. Clerk, P and E Division, Haldia Dock Complex is charged with gross misconduct inasmuch as, it is alleged that he had a poor record of attendance as given under Article of Charge-l above. Inspite of the fact that he was warned that he would improve his attendance in office and there should be no recurrence of unauthorised absence on his part in future vide Memorandum No. Disc./339/549 dt. 25.9.91 issued to him. Inspite of the fact that he was warned that he would improve his attendance in office and there should be no recurrence of unauthorised absence on his part in future vide Memorandum No. Disc./339/549 dt. 25.9.91 issued to him. The above act of said Shri Soren, if proved, will amount to recurrence of committing similar misconduct on his part showing severe lack of discipline, which is a gross misconduct." (6). During pendency of the proceeding arising out of the aforesaid second charge-sheet, respondent/writ petitioner was, however, allowed to join duties by the respondent Kolkata Port Trust authorities as would appear from the written communication issued to the said respondent/writ petitioner on 14th December, 1992 by the Manager, P and E Division, Haldia Dock Complex. (7). Thereafter, the respondent/writ petitioner again remained absent for a prolonged period on and from 4th October, 1993. The writ petitioner made a representation on 1st June, 1995 explaining the reason behind such absence and upon consideration of the same, the writ petitioner was allowed to resume his duties with effect from 16th June, 1995. (8). Referring to the aforesaid facts submission has been made on behalf of the respondent/writ petitioner that during subsistence of the aforesaid proceeding arising out of the second charge-sheet, said respondent/writ petitioner remained absent for the following two spells : (a) 8.10.1991 to 13.12.1992; (b) 4.10.1993 to 15.6.1995. (9). A departmental enquiry was held in relation to the charges mentioned in the aforesaid second charge-sheet. The respondent/writ petitioner was admittedly found guilty and was imposed the penalty of reduction of pay to the lowest stage in his time scale of pay for three years. Even after imposition of the aforesaid penalty, respondent/writ petitioner absented himself from duties and, therefore, third charge-sheet was issued on 21st July, 1998 to the said respondent/writ petitioner for unauthorised absence on the following charges : "Article of Charge-l That Shri Basudeb Soren, L. D. Clerk, P and E Division, Haldia Dock Complex is charged with gross misconduct inasmuch as it has been reported that he has been unauthorisedly absenting from duties for 294 days in 1994,156 days in 1995, 38 days in 1996,108 days in 1997 and 31 days in 1998. The details of the aforesaid records of the unauthorised absenteeism is given under Annexure -II. The details of the aforesaid records of the unauthorised absenteeism is given under Annexure -II. The above act of the said Shri Soren if proved, will amount to habitual unauthorised absence from duties on his part which is a gross misconduct. "Article of Charge-II That Shri Basudeb Soren, L. D. Clerk, P and E Division, Haldia Dock Complex is charged with gross misconduct inasmuch as, it is alleged that he has a poor record of attendance as given under Article of Charge-l above, inspire of the fact that he was warned to improve his attendance in office and that there should not be any recurrence of unauthorised absence on his part in future vide Memorandum No. Disc./339/549 dt. 25.9.91 and was also imposed the penalty of reduction of pay to the lowest stage in his time scale of pay for a period of three years which will not have the effect of postponing his future increments vide order No. Disc./393/185 dt. 19.6.95. The above act of the said Shri Soren, if proved, will amount to recurrence of committing similar misconduct on his part showing severe lack of discipline which is a gross misconduct." (10). The details of the aforesaid unauthorised absence of the respondent/writ petitioner have been mentioned in the Statement of mputations of Misconduct in support of the Article of Charge-l and the same are also reproduced here in below : (11). A departmental enquiry was conducted in respect of the charges mentioned in the aforesaid third charge-sheet. The respondent/writ petitioner, however, did not participate in the enquiry proceeding. The Enquiry Officer proceeded ex parte and submitted his report holding the respondent/writ petitioner guilty of absence for 294 days in the year 1994 and 166 days in the year 1995. With reference to the periods of absence in the years 1966, 1997 and 1998, the Enquiry Officer came to the finding that the aforesaid periods were regularised by allowing the leave in the following manner: (12). However, pursuant to the representation of the respondent/writ petitioner, Disciplinary Authority by the order dated 19th November, 1999 directed reopening of the enquiry proceeding. In compliance with the aforesaid direction of the Disciplinary Authority, enquiry was conducted afresh in connection with the aforesaid third charge-sheet and this time the respondent/writ petitioner participated in the proceeding. However, pursuant to the representation of the respondent/writ petitioner, Disciplinary Authority by the order dated 19th November, 1999 directed reopening of the enquiry proceeding. In compliance with the aforesaid direction of the Disciplinary Authority, enquiry was conducted afresh in connection with the aforesaid third charge-sheet and this time the respondent/writ petitioner participated in the proceeding. The Enquiry Officer after conducting the enquiry submitted enquiry report and thereafter, the Disciplinary Authority imposed on the respondent/writ petitioner the punishment of reduction of pay to the lowest stage of the time scale of pay for a period of five years with cumulative effect and further directed that during the said period the said respondent/writ petitioner would not be considered for any promotion. (13). The respondent/writ petitioner thereafter preferred an appeal against the aforesaid punishment and the Appellate Authority passed an order reducing the length of penalty from five years to three years with cumulative effect. The writ petitioner then applied for review of the aforesaid order of the Appellate Authority and the Reviewing Authority modified the order of the Appellate Authority by imposing the penalty for three years with cumulative effect. (14). Challenging the aforesaid order of punishment passed on the basis of the charges mentioned in the third charge-sheet, a writ petition was filed. The said writ petition was allowed by the said learned Single Judge by the judgment and order under appeal on the ground that the writ petitioner had been vexed twice for the same offence as according to the learned Single Judge, period of absence of the writ petitioner during the year 1994-95 had been taken into consideration twice. (15). It has been specifically submitted on behalf of the writ petitioner that the said writ petitioner was punished twice for the spell of absence during the period from 4th October, 1993 to 15th June, 1995. Referring to the order of the Disciplinary Authority passed on 14th June, 1995 in connection with the second charge-sheet, it has been urged on behalf of the respondent/writ petitioner that the said Disciplinary Authority specifically observed as hereunder: "But it has come into evidence that CSE has failed to comply with the direction and remained unauthorisedly absent for two spell of prolonged periods." (16). According to the respondent/writ petitioner, the aforesaid two spell of prolonged periods considered by the Disciplinary Authority would mean long unauthorised absence since 8th October, 1991 to 13th December, 1992 and subsequent prolonged absence during the period from 4th October, 1993 to 15th June, 1995. (17). Mr. Bandyopadhyay, learned Senior Counsel representing the respondent/writ petitioner referred to the written communication of the Manager (P and E), Haldia Dock Complex dated 14th December, 1992 and submitted that the said writ petitioner was allowed to resume his duty by the respondent authorities without prejudice to the outcome of the departmental proceedings initiated against the said writ petitioner for unauthorised absence since 8th October, 1991. (18). Therefore, the period of absence with effect from 8th October, 1991 till 13th December, 1992 was the first spell of prolonged absence whereas the second spell of prolonged absence would mean the period of absence from 4th October, 1993 till 15th June, 1995 when the said Manager (P and E), Haldia Dock Complex by issuing the written instruction dated 15th June, 1995 again granted permission to the writ petitioner for resumption of duty with effect from 16th June, 1995 after the prolonged period of absence from 4th October, 1993. (19). It may not be out of place to mention that the Disciplinary Authority while imposing the punishment in relation to the second charge-sheet not only considered the period of absence mentioned in the said second charge-sheet i.e. unauthorised absence since 8th October, 1991 but also the subsequent period of absence from 4th October, 1993 till the date of joining the duty on 15th June, 1995 pursuant to the written instruction of the Manager (P and E), Haldia Dock Complex. (20). The learned Counsel representing the appellant, however, urged before this Court that the expression "two spell" would mean the period of absence mentioned in the first charge-sheet and the period of absence specifically mentioned in the second charge-sheet. (21). We are unable to accept the aforesaid contention as the period of absence covered by the first charge-sheet for which the punishment of warning was given cannot be the subject matter of consideration of the Disciplinary Authority while considering the charges relating to unauthorised absence of the respondent/writ petitioner in connection with the second charge-sheet. (21). We are unable to accept the aforesaid contention as the period of absence covered by the first charge-sheet for which the punishment of warning was given cannot be the subject matter of consideration of the Disciplinary Authority while considering the charges relating to unauthorised absence of the respondent/writ petitioner in connection with the second charge-sheet. On the contrary, the Disciplinary Authority while considering the charges of unauthorised absence of the respondent/writ petitioner in relation to the second charge-sheet not only considered the period of absence mentioned therein i.e. the period w.e.f. 8th October, 1991 to 13th December, 1992 but also kept in mind the subsequent period of absence of the writ petitioner even after resumption of duty pursuant to the order dated 14th December, 1992 issued by the Manager (P and E.) Haldia Dock Complex i.e. the period of prolonged absence from 4th October, 1993 till 15th June, 1995 when the said Manager again permitted the writ petitioner to resume duty pursuant to the order of the competent authority. Therefore, the Disciplinary Authority by the aforesaid expression two spell really wanted to mean the following period of unauthorised absence of the writ petitioner: (a) 8.10.1991 to 13.12.1992; (b) 4.10.1993 to 15.6.1995. (22). In the aforesaid circumstances, charge of unauthorised absence for a considerable period between 4th October, 1993 to 15th June, 1995 could not have been mentioned in the subsequent third charge-sheet issued to the respondent/writ petitioner although in the Article of Charge-I of the third charge-sheet, respondent/writ petitioner was specifically charged with gross misconduct for unauthorisedly absenting from duties during 13.3.1994 to 31.12.1994 for 294 days and from 1.1.1995 to 15.6.1995 for 166 days. (23). The Disciplinary Authority punished the respondent/writ petitioner upon considering the charges mentioned in the third charge-sheet including the charge of prolonged unauthorised absence of the said writ petitioner during the period from 4th October, 1993 to 15th June, 1995. Therefore, it is not in dispute that the writ petitioner was punished for his prolonged unauthorised absence during the period 4th October, 1993 to 15th June, 1995 twice as the aforesaid period of uanuthorised absence had earlier been considered by the Disciplinary Authority along with the charges mentioned in the second charge-sheet and furthermore, considerable part of the said period of unauthorised absence was also specifically included in the Article of Charge-l of the third charge-sheet issued to the said writ petitioner. (24). (24). For the reasons discussed hereinabove, we have no hesitation in holding that the writ petitioner was punished twice for the same offence, which cannot be sustained in law under any circumstances. The learned Single Judge, therefore, has rightly held that the writ petitioner was vexed twice for the same offence. The Disciplinary Authority as well as the Appellate Authority, in our opinion, should have been careful while imposing the pumshment on the writ petitioner and the said authorities should not have punished the said writ petitioner twice for the same offence. (25). The learned Senior Counsel of the respondent/writ petitioner also urged before this Court that the third charge-sheet was issued by the Manager (P and E), Haldia Dock Complex and not by the Deputy Chairman and, therefore, the entire proceedings arising out of the aforesaid third charge-sheet is without jurisdiction. (26). We are unable to accept the aforesaid submission made on behalf of the respondent/writ petitioner in view of the clear provision of Regulation 3(iii) of the Calcutta Port Trust Employees (Classification, Control and Appeal) Regulations, 1987 and Serial (3) of Schedule A of the said Regulations. (27). The writ petitioner was in the pay scale of Rs. 1,935/- i.e. between Rs. 1,695/-and Rs. 2,800/-. Therefore, in terms of Serial (3) of Schedule A of the aforesaid Regulations, 1987, the concerned Manager of the Division at Haldia Dock Complex is the appropriate authority to issue the third charge-sheet. (28). In any event, the learned Single Judge allowed the writ petition only on the ground that the said writ petitioner had been vexed twice for the same offence, which we have also appreciated and, therefore, we are not inclined to interfere with the decision of the said learned Single Judge. (29). For the aforementioned reasons, we dismiss the appeal and affirm the judgment and order under appeal passed by the learned Single Judge. (30). The appellants are, therefore, directed to comply with the directions of the learned Single Judge at an early date but positively within a period of three weeks from the date of communication of this order. In the facts of the present case, there will be no order as to costs.