Chittaranjan Ghosh vs Collector

B.N. Banerjee, J.—On August 7, 1959, the Respondent State Government framed a set of Rules, known as the West Bengal Government Servants'' Conduct Rules, 1959, in exercise of the powers conferred under the proviso to Article 309 of the Constitution. Rule 15 (4) of the said Rules is couched in the following language:

(4) Subject to the provisions of any general or special order, every Government servant, other than one in Class IV (inferior) service, shall submit to the appointing authority, in the form in the annexure to these rules, a periodic return of the movable and immovable properties and other assets owned, acquired or inherited by him or by any member of his family:

Provided that when a person enters Government service for the first time, he shall, within a period of three months of his joining Government service, submit his first return showing his assets as they stood on the 1st January immediately preceding the date of his joining and shall thereafter submit periodic returns like all other Government servants.

The form referred to in the Rule contains, inter alia, two columns headed "Value" and "Date and manner of acquisition". There are, certain instructions prescribed for filling up the form, of which instructions Nos. 4 and 5, read as follows:

Any officer making a declaration discovered to be materially incomplete, misleading or false will earn for himself the penalty of immediate suspension, drawing up of proceedings, which, may ultimately result in dismissal from Government Service with forfeiture of pension and all other discretionary benefits. A subsequent explanation that the failure strictly to comply with the instructions or the presence of material defects in the declaration were by oversight or ignorance will hot be accepted. Ambiguity in a declaration must be avoided as any ambiguity will be liable to be interpreted against him.

In declaring shares and stocks and other securities, jewellery, motor cars, motor cycles, refrigerators, other valuable movable articles and immovable property, the actual price paid by an officer must be mentioned, whatever their face value or depreciation might be. Movable articles costing less than Rs. 500 for each item need not be mentioned. In columns 8 of Part A(1), 6 of Parts A(2) and A(3) and 5 of Parts B(1) and B(2), of the form of Declaration of Assets, the manner of acquisition of the property must clearly and unambiguously given, i.e. whether the property was acquired by means of savings from the Government servant''s salary or from income from any other source or by inheritance or by any other means to be specified. If an immovable or movable property is in the process of acquisition, for example, a piece of landed property which is being purchased in installments or under one of the various mortgage schemes, or a car or a refrigerator or other pieces of furniture or jewellery are being paid for under a hire-purchase scheme in installments or are mortgaged while being acquired, the full particulars of such properties should be given even though the title to the property may not yet have devolved upon the Government servant making the declaration. It is incumbent upon the declarant in such cases to state the amount paid up to the relevant date for the purchase of the particular property.

The Petitioner has been found guilty of the violation of the above quoted rule and has been asked to show cause why he should not be discharged from service.

The circumstances leading to the issue of the notice above referred to are hereinafter stated in brief. The Petitioner, entered Government service in the year, 1936 and was working as Head Clerk, Loan Section, under the Collector of 24-Parganas, in the year 1962, at a monthly pay of Rs. 140 in the grade of Rs. 130 to Rs. 180. In July, 1961, he was served with a charge sheet, dated July 5, 1961, signed by B. Sen Gupta, the then Collector of 24-Parganas, couched in the following language:

Whereas it appears that you, Shri Chitta Ranjan Ghosh, now appointed as Head Clerk, Loans Section, 24-Parganas Collectorate, in the Declaration of your assets as they stood on 1st January, 1960 mentioned that you owned sixteen annas interest in a house at 83 Shelimpur Road, Calcutta--31, valued at Rs. 20,000 (Rupees Twenty thousand) which stood in your name and that you further-made the following statement in column 7 (Remarks) of Part A(2) of the Form of Declaration of Assets:

Rs. 5,000 acquired from my father out of his business and final payment of a life Insurance Policy.

and whereas it further appears that in the earlier Declaration of Assets as they stood on 1/1/59, 1/1/57, 1/1/56, 1/1/55 t and 1/1/54, you, while furnishing certain other particulars in respect of your house of which construction had not by then been completed, did not make any mention of the manner of acquisition of the building.

Whereas from the above Declarations of Assets it is not at all clear as to how you, an Assistant on a present pay or Rs. 140 (Rupees One hundred and forty) could find the amount needed for the construction of the house in addition to that mentioned in your Declaration of Assets as they stood on 1.1.60.

Whereas in paras. 4 and 5 of the Government instructions for filling up the Declaration, the Government servants concerned have been directed to indicate the manner of acquisition of the property clearly and unambiguously, i.e. whether the property was acquired by means of savings from the Government servant''s salary or from income from any other source or by inheritance or by any other means and that Government servants have further been warned that anybody making a declaration discovered to be materially incomplete, misleading or false, will render him liable to Departmental action.

And whereas your failure to indicate clearly the manner of acquisition of the house, amounts to clear contravention of paras. 4 and 5 of the Government instructions for filling up the Declaration Assets.

You are hereby directed to show cause by 28.7.61 why you will not be held guilty of serious misconduct and dismissed from Government service or otherwise suitably punished.

The Petitioner showed cause denying the charge. Thereupon, one U.C. Sinha, was appointed as the Enquiring Officer to enquire into the charges. After an enquiry, the said Enquiring Officer submitted a report adverse to the Petitioner. Thereupon B. Sen Gupta, the then Collector, ordered issue of a notice, dated April 28, 196-2, calling upon the Petitioner to show cause why he should not be removed from service. The Petitioner thereupon asked for copies of declaration of assets, made by him, in order to enable him to show cause. At this stage, B. Sen Gupta retired from service and was succeeded by the present incumbent in office, A.K. Majumder. The latter officer found that the enquiry had not been properly conducted and decided upon a fresh enquiry. U.C. Sinha, however could not take up the enquiry afresh because he retired shortly after the fresh enquiry order. Thereupon, the Respondent No. 1 Collector appointed A.R. Biswas, a senior Deputy Magistrate, as the Enquiring Officer with direction upon him to conduct a fresh enquiry on the charge sheet, dated July 5, 1961. Although not necessary, the new Enquiring Officer served the old charge sheet, dated July 5, 1961, upon the Petitioner afresh and called upon him to show cause by October 22, 1962. The Petitioner prayed for copies of declaration of assets filed by him during the year 1947-1948, in order to enable him to show cause. These copies were not supplied to him. Therefore, while showing cause, the Petitioner prefaced his explanation with the statement:

I have denied with (?) the copies and even inspection of those papers and orders have been passed on my petition to submit my explanation by 6.11.62. In these circumstances my explanation in the matter submitted below, is written purely from my faint memory.

In his explanation the Petitioner stated, in the first place, that the previous form which was in vogue in 1953-54 and prior to that period did not contain instructions as to the manner in which the form was to be filled up. By the expression "manner of acquisition", used in the previous form, the Petitioner alleged, he understood how the land was acquired, namely, by purchase, by gift or under testamentary succession and as such he merely wrote "by purchase". He said that he did not understand that it was necessary also to state how the purchase price was obtained under the said column. He stated, in the next place, that since 1936 he was in Government, service, used to live alone in a boarding house and used to send his savings to his father in Faridpore, now in East Pakistan. That money used to be utilised by his father in purchase of land and in money lending business. After the communal tension had started in 1946, the Petitioner decided to build a house in West Bengal and purchased a plot of land at a place now numbered as 83, Selimpore Road, Dhakuria, for Rs. 1220, in February 1917. This money, he says, was sent to him by his father from Faridpore. Thereafter he says, his father sold his land at Pakistan, collected the money lent out lo different persons and during the years 1947-1948 sent about Rs. 17,315 with which he opened a Savings Bank Account and a Current Account in the Imperial Bank of India and therein respectively deposited Rs. 9215 and Rs. 8100. This amount, a sum of Rs. 1000 taken as loan from the District Office, Co-operative Credit Society, a sum of Rs. 1056 taken from the Government as house building loan, a sum of Rs. 400 advanced by his father from his business, which the latter began to Garry on in Calcutta after migration from Faridpore and a farther sum of Rs. 1000, advanced by his father out of his Life Insurance were all applied in the construction of the house in the plot of land purchased as aforesaid.

The Enquiring Officer took evidence both oral and documentary and came to the following finding:

It appears that Shri C.R. Ghosh purchased land at 83, Selimpur Road, Cal--31 at Rs. 1220, land measuring 4 cottahs and 13 chattacks. One storey was completed in 1949 and the 2nd storey in 1959. During this period, Shri Ghosh had been receiving money from his father, Shri U.M. Ghosh (D.W.). Exs. A, B show Rs. 17,315-13-0 upto 1949. Other sources including Exs. C, D and F account for Rs. 14,286. Hence the grand total upto 1958 comes to Rs. 31,601-13-0. This is sufficient for the construction of a house worth Rs. 20,000.

A question now arose as to whether Shri Ghosh has violated Instructions Nos. 4 and 5 of Declaration of Assets as alleged. The Declaration of asset form upto 1955 did not contain these instructions. Still Shri Ghosh has mentioned this acquisition of land. Hence, the question of violation in respect of these years does not arise. The declarations relating to 1956, 1957, 1958 and 1960 are made in the new form. The 1960 declaration mentions the manner of acquisition as follows:

"Rs. 5000 acquired from my father out of his business and final payment of life insurance policy". Apparently this description sets in with the year 1960 only, although the house constructed relates to the period from 1947-59. Hence is the discrepancy between the two. Shri Ghosh contends that he is not well conversant with the form. This is a mistake that has been responsible for the discrepancy. But there is no mala fide involved in the deal. Hence, Shri Ghosh cannot be charged with mala fides. The only thing required of him is that he should be a bit careful in writing out the declaration of assets.

The Enquiring Officer recommended that the Petitioner be let off with warning.

The Respondent Collector, however, did not agree with the Enquiring Officer. On the materials quoted by the Enquiring Officer he came to the following findings:

(a) He (meaning the delinquent) pleaded ignorance of rules and took the stand that by manner of acquisition he understood whether it was purchased or obtained as a gift. I cannot accept this contention from an assistant who is expected to be responsible enough to fill up these forms.

(b) Shri Ghitta Ranjah Ghosh wanted to prove his innocence by producing a Savings Bank Account Book of the Imperial Bank of India. I am afraid, this contention of the Saving Bank Account Book does not help him in any Way and does not prove that he is a man of sufficient worth to acquire a house in Calcutta valued Rs. 20,000 apart from the price of land for 08 acres. All that the Savings Bank Account proves is that on the 18th October, 1949, he had to his credit a sum of Rs. 5/7 only.

(c) Chitta Ranjan Ghosh also mentioned about a Cheque Book of a Current Account of the Imperial Bank of India. The counter-foils of the Cheque Book were produced but not the Current A''/c slips. The transaction according to the counter-foils of the Cheque Books is between 22.4.48. to 19.4.49. Shri Chitta Ranjan Ghosh wanted to prove that a sum of Rs. 6,200 paid by Cheque No. BZ/85. 68945 of 4.3.49, from current account of the Imperial Bank of India to Shri Sudhir Kumar Roy Chowdhury was repaid to him in 1958. It is curious that there is no mention of this amount in the asset statements. This amount did not pass through any Bank neither did Shri Ghosh keep this amount in any of his accounts.

(d) The fact that he took a loan of Rs. 1,000 from the District Office, Co-operative Societies and a sum of Rs. 1,056 from the Govt. does not help him much to rebut that the balance of the amount of Rs. 20,000 came from his honest earnings.

(e) Chitta Ranjan Ghosh produced his father as a defence witness. He stated that he sent about Rs. 18,000--19,000 to his son. Such a huge sum of money never passed through any bank or any post office savings bank account. Shri Chitta Ranjan Ghosh never mentioned of such remittance in his asset statement. The only documentary evidence that is forthcoming about the monetary worth of the father of Shri Chitta Ranjan Ghosh is an intimation from the Life Insurance Corpn. of India that a sum of Rs. 1,030.19 nP. was payable to him on maturity of his policy No. 34108. He started a straw cutting shop and also one for selling cattle food in the same premises belonging to his son. All these do not prove in any way what he was a man of real worth.

On the above findings, the Respondent Collector came to the conclusion that in the absence of proof to the contrary it must be assumed that the amount applied in contraction of the house came from some source other than his honest earning and that the Petitioner was suppressing material information in his asset statements. He, therefore, called upon the Petitioner, by a notice dated June 19, 1963, to show cause why he should not be dismissed from service.

Aggrieved by the notice, the Petitioner moved this Court, under Article 226 of the Constitution, praying for a writ of certiorari for the quashing of the disciplinary action and a writ of prohibition, alternatively, a writ of mandamus restraining the Respondents from giving further effect to the notice and obtained this Rule.

Mr. Nani Coomer Chakraborty, learned Advocate for the Petitioner, argued that rules of natural justice were violated in the departmental action against the Petitioner, firstly, because the copies of the declaration of assets were not supplied to the Petitioner in order to enable him to fully and completely explain his conduct and secondly, because the findings against the Petitioner went beyond the charge levelled against him, particularly when the Respondent Collector proceeded on the assumption that the amount for the construction of the house came from some source other than his honest earnings and also when he found that the Petitioner did not wilfully disclose the manner of acquisition of the immovable property. I find substance in this argument. The Petitioner, I find, did ask for copies of the declaration of assets several times on the plea that he did not remember how he had filled up the declaration forms and it was difficult for him to show cause in the absence of such particulars. Inspite of some sort of vague assertion, in the affidavit-in-opposition, that the Petitioner was given copies or inspection of all documents, which could be given under the Rules, it was not disputed before me, in course of argument, that copies of declaration of assets were not supplied to the Petitioner and he was not even allowed opportunity to inspect the same during the course of the enquiry. Why this was not done does not appear. To ask a person to explain something which he does not remember and then deny him opportunities to refresh his memory, is to put a person in a position of difficulty, which he may not surmount. Moreover, the assumption that the Petitioner applied money acquired from some source other than his honest earnings is without any foundation of evidence, even though the explanation submitted by the Petitioner may not be accepted in its entirety. The finding goes beyond the charge. In my opinion, the two lacunae, emphasised upon by Mr. Chakraborty, in the disciplinary action justify the criticism made by Mr. Chakraborty thai the rules of natural justice were not observed during the enquiry.

Then again, the Petitioner was charged with contravention of paras. 4 and 5 of the Instructions (already quoted) for filling up the declaration form. Now such a contravention may be due to misunderstanding, oversight and ignorance of what exactly to declare or it may be due to wilful non-disclosure or deliberate false statement. The Petitioner was not charged with acquisition of wealth by dishonest means. To find that he was guilty of such a misconduct was beyond the scope of the enquiry.

It is true that the Petitioner was not definitely charged with wilful non-disclosure and suppression of material information but with mere contravention of certain paragraphs of the instructions, explicable on more theories than one. But the contravention alleged may be wide enough to include wilful non-disclosure and suppression of facts. It would have been better to have charged the Petitioner more definitely and riot to have kept the Petitioner guessing as to what was exactly meant to be included in the charge. Although of that opinion, I do not hold, regard being had to the comprehensiveness of the language used in the charge sheet, that the Respondent Collector went beyond the charge sheet when he held that the contravention was attributable to wilful non disclosure and suppression. I, however, make it clear that in coming to the above conclusion, I have confined myself to the jurisdiction of the Respondent Collector to come to that finding. I have not adverted to the correctness or otherwise of the finding itself.

Mr. Chakraborty criticised the charge sheet from another point of view. He contended that the column headed "Date and manner of acquisition" was not wide enough to include particulars about the sources of money applied in the construction of the house. Now, to acquire means to gain or to attain. To construct means to build, to create or to make. Thus one may build or construct a house on a piece of land acquired by him by purchase or under gift or exchange. Acquisition in its generic sense may include construction, but without more one may miss the wideness of the import of the word and not unreasonably so. But then, that something more is contained in para. 5 of the Instructions and I am not prepared to uphold the criticism in the form made. Mr. Chakraborty lastly contended that the charge of contravention covered the period from 1954 to 1960, but inasmuch as the Rules came into operation only in August, 1959, without retrospective effect, the Petitioner should not have been found guilty of the contravention of Rule 15(4) prior to 1959. This point was not taken in the grounds. The form of declaration prescribed earlier to 1959 is not before me. I do not know if instructions similar to the instructions contained in para. 5 of the prescribed form under the 1959 Rules used to accompany the earlier forms also. I do not, therefore, make much of this argument.

In the view that I take, I hold that the conduct of