Commissioners for the Port of Calcutta vs Nirmala Chakravorty

A.N. Ray, J.—This appeal is from the judgment and order of Basu, J. dated August 2, 1966.

The order was made on the application of the Respondent under Article 226 of the Constitution.

The Respondent''s case in the petition was that she was in the employment of the Appellant. On November 19, 1962, a charge-sheet was issued against her. By a letter dated November 29, 1962, the Respondent asked the Appellant to furnish the Respondent with copies of certain documents. One of the documents asked for was the written complaint of the Chief Medical Officer, on the basis of which charges had been framed.

The Respondent alleged that enquiry was made by the Assistant Secretary to the Commissioners for the Port of Calcutta. The Enquiry Officer by a notice dated May 24,1963, asked the Respondent to show cause why the Respondent should not be dismissed from service.

The Respondent by a letter dated May 28, 1963, requested the Appellant to furnish copies of certain relevant documents necessary for the purpose of defence. By a letter dated June 10, 1963, the Secretary to the Appellant agreed to give inspection of the documents. Thereafter, the Secretary informed the Respondent that only certain items mentioned in the Respondent''s letter were allowed to be inspected. The Respondent then wrote to the Appellant that the Respondent was not allowed to take copies of the depositions.

On these allegations the Petitioner''s grievance was that the Respondents are guilty of violation of principles of natural justice.

At the trial it was contended before the learned Judge that the order of dismissal was in contravention of the principles of natural justice because of the refusal of the Appellants not to give the Respondent the documents asked for at the stage of the enquiry and, secondly, not to give the Respondents the documents when she was asked to show cause against the proposed punishment.

With regard to the enquiry stage the Respondent''s grievance was that she asked for the Chief Medical Officer''s report on the basis of which charges had been framed, and she was denied the said documents. The charge-sheet that was issued will be found in annEx. B to the petition at p. 16 of that paper-book. Along with the charge-sheet the Respondent was given a statement of allegations on the basis of which charges were framed. The allegations were twofold. First, that on November 17, 1962, soon after 9 hours, she obstructed in a violent attitude, with the help of an unknown young-man, the Chief Medical Officer, while the latter was entering the Remount Road Hospital compound in his car through the western gate. Secondly, she again obstructed the Chief Medical Officer soon after the above incident while he was entering the Remount Road Hospital building through the western gate, abused him and threatened to assault him. The Respondent by a letter dated November 28, 1962, asked for various documents and stated that she wanted the same in order to enable her to prepare her written statement of defence. The Respondent asked for her leave application in the month of August 1962, her gynecological report dated November 15, 1962, the Chief Medical Officer''s report, on the basis of which the charges had been framed, the medical report in connection with the Respondent''s ailment during 1959 and the report of Dr. C. C. Saha who treated her, and a few other documents. She concluded her statement dated November 23, 1962, by stating that she should be furnished with the documents for reasonable opportunity to herself. The Commissioners for the Port of Calcutta by a letter dated December 6, 1962, stated that the Chief Medical Officer''s report being item No. 4 of the Petitioner''s letter described as the report on the basis of which the charges had been framed was a confidential document and could not be made available for inspection. Item No. 7 in the Respondent''s letter, which related to the medical report in connection with her ailment in the year 1959, was stated by the Commissioners for the Port of Calcutta not to be relevant to the charges framed against her and, therefore, could not be made available for inspection. It may be noted here that the Commissioners for the Port of Calcutta did not deny that the charges had been framed on the basis of the Chief Medical Officer''s report as alleged by the Respondent in her letter dated November 23, 1963. On January 12, 1963, the Respondent submitted her statement where she stated that she developed psychic trouble and that she had illness. She denied that she acted in a manner prejudicial to discipline.

The Enquiry Officer''s report states that on the report made by the Chief Medical Officer the Respondent was placed under suspension with effect from November 19, 1962.

Counsel for the Appellants contended that the Enquiry Officer did not look at the Chief Medical Officer''s report and that the Respondent did not cross-examine the Chief Medical Officer on the report and that the absence of the report did not cause any prejudice to the Respondent. It was, therefore, submitted on behalf of the Appellants that the absence of the Chief Medical Officer''s report did not constitute any violation of the principles of natural justice. The report of the Chief Medicinal Officer, which was asked for by the Respondent and was described by the Respondent to be the basis on which charges had been framed, appears to be an undisputed feature of the case. It will appear in the affidavit of Rati Prosonna Chanda affirmed on March 20, 1964, that the deponent in para. 7 thereof that the Chief Medical Officer''s report was not considered necessary to be given in view of the fact that the substance of the report had been incorporated in the statement of allegations which formed part of the charge-sheet dated November 19, 1962. It is indisputable that on. this affidavit evidence the Chief Medical Officer''s report was the foundation and origin of the charge-sheet and, as such, constituted a very important document. It was said by the counsel for the Appellants that there was a statement made by the Chief Medical Officer before the Enquiry Officer and the Respondent was given every reasonable opportunity to meet that case. The records which were produced pursuant to the rule indicate that the Chief Medical Officer in his written statement before the Enquiry Officer also stated that immediately after the incident on November 17, 1962, he reported the matter to the Deputy Chairman. Once again it is apparent that the report of the Chief Medical Officer was not only a basic contemporaneous document but also an important one for the Respondent''s defence. The learned Judge expressed the opinion correctly that the initial report of the Chief Medical Officer not being before the Enquiry Officer it was not possible for the Enquiry Officer or the delinquent to ascertain how the Chief Medical Officer had made his allegation on the point that the Respondent was helped in the alleged obstruction by an unknown Youngman, because there is no reference to the alleged Youngman in the report of the Enquiry Officer. The learned Judge further rightly came to the conclusion that the fact that the Respondent did not examine any witness to prove the negative or could not offer any effective cross-examination, would not warrant the Enquiry Officer to come to the conclusion that the charge had been proved.

The importance of the Chief Medical Officer''s report is established as the primary source of allegation. The Respondent was entitled to have the document and to make her submissions in the light of the entire evidence that was available. The prejudice that is constituted by the absence of the document is to be found first in her denial of facilities for preparation of defence, secondly in her opportunity of testing the Chief Medical Officer who gave evidence, and thirdly in ascertaining whether there had been any discrepancy between the Chief Medical Officer''s report and what transpired at the enquiry stage.

Counsel for the Respondents rightly submitted that the Chief Medical Officer''s report was also important in view of the charge as to abuse. The charge-sheet was accompanied by allegations regarding charge. One of the allegations was that the Respondent abused the Chief Medical Officer and threatened to assault him. Counsel for the Respondent rightly submitted that abuse would be a matter of particulars as to the form of abuse. That is how the Chief Medical Officer''s report became important not only for the purposes of meeting the charge but also for the preparation of defence and for meeting the case of punishment.

With regard to the second contention, namely, that the Respondent was not supplied copies of the evidence, it appears that the Appellants stated that copies of the evidence could not be supplied and, as a special case and without prejudice, the Respondent might be allowed inspection of the documents in question. The Respondent by a letter recorded that the Respondent was not allowed even inspection of the evidence of the prosecution witnesses.

Counsel for the Appellants contended that the evidence was adduced in the presence of the Respondent who heard the evidence and was in a position to take notes and, therefore, there was no violation of natural justice. There is no merit and substance in this contention. It will be violation of natural justice if the evidence on which the officers relied was not supplied to the Respondent. To accede to the contention that the Respondent could take notes would be to compel the Respondent to rely on memory and to deprive the Respondent of the full materials which were being used in the proceedings.

The learned Judge rightly came to the conclusion that it was open to the delinquent, namely, the Respondent to contend that the findings were not supported by the evidence and that the evidence was not worthy of credence and, therefore, the copies of the deposition were important. The learned Judge also correctly expressed the opinion that it was necessary for the Respondent to obtain copies of the evidence with regard to her representation as to the punishment that was going to be made in the case. The learned Judge rightly expressed the view that the delinquent could show that the finding did not follow from the evidence and if copies of the evidence were denied to the Petitioner, there would be violation of principles of natural justice.

The learned Judge came to the correct conclusion. The judgment is affirmed. The appeal is dismissed. This is a case where, I am of opinion, that each party should pay and bear its own costs in the appeal.

S.K. Mukherjea, J.

I agree.