Rashbehari Pramanick vs The State of West Bengal

A.K. Sinha, J.—This writ petition is directed against the order made by the Block Development Officer, Habibpur, Malda, dispensing with the service of the Petitioner on December 11, 1963. Briefly, the facts relevant to the matters in controversy are as follows:

The Petitioner was appointed correspondence clerk by the Block Development Officer, Harishchandrapur Block, Malda, on September 1, 1959, in the scale of Rs. 125-200 plus Rs. 45 as dearness allowance. While the Petitioner was working in Habibpur Block under the Respondent No. 2 on transfer, he was served with an order of suspension dated February 9, 1963, by the Respondent No. 2 with effect from the afternoon of the said date which also debarred him from entering the office compound. It was also stated in that letter that the charges against the Petitioner would follow. Instead of the charges a letter dated February 27, 1963, was written to the Petitioner consisting of quite a large number of allegations against him and he was asked to clarify his official conduct about the issues raised therein and submit his explanation within seven days of the receipt of that letter failing which, it was further stated, it would be considered that he had nothing to say on those issues.

Thereafter, the Petitioner entered into correspondence with the Respondent No. 2 in course of which he insisted on supplying him authenticated copies of several documents referred to in his letters dated April 6, 1963 and April 8, 1963. The Block Development Officer, Respondent No. 2, ultimately allowed him to make out the copies himself on inspection of the relevant records and documents in his office. The Petitioner, however, continued to record his grievance as copies of several other documents referred to in his letter dated June 11, 1963, were not allowed to be taken and pleaded his inability to submit any explanation to the allegations made in the said letter before any such copies were supplied. In course of such correspondence a charge-sheet dated July 15, 1963, containing as many as seven items with several sub-items of charges framed against the Petitioner, was issued to him by the Respondent No. 2. In the said charge-sheet, after recital of the charges, it was also stated that he (the Respondent No. 2) was satisfied that the Petitioner committed the above offences and, therefore, he was directed to show cause by July 20, 1963, why he should not be dismissed or removed from Government service or demoted in rank or grade or the increments of the Petitioner should not be withheld or otherwise he should not be suitably punished for the said offence (copy of the said charge-sheet is marked as annEx. A to the affidavit in reply given by the Petitioner on November 10, 1964).

Thereafter, by letter dated July 26, 1963, the Petitioner was directed to appear in the office of the Block Development Officer for attending enquiry with all documents and witnesses on July 29, 1963. The Petitioner in reply, by his letters dated July 20, 1963 and August 24, 1963, requested the Block Development Officer to furnish him with a list containing the number and the nature, of the documents, the prosecution would rely with regard to the charges levelled against him and the names of the prosecution witnesses who would be examined on its behalf. By another letter dated August 24, 1963, he made a series of complaints before the Block Development Officer in conducting the disciplinary proceedings. He also stated that the Enquiring Officer, B.N. Pal, overruled all his objections and thus prayed for conducting a fresh enquiry for the sake of justice and fair play. By letter dated September 4, 1963, the Petitioner was informed that a fresh enquiry relating to his suspension case would be held on September 10, 1963, and the names of the prosecution witnesses were supplied. The Petitioner by another letter dated September 8, 1963, addressed to the Respondent No. 2, intimated to him about the several illegalities and irregularities committed by the Enquiring Officer when he held his enquiry on September 10, 1963, and requested him to take steps for investigation by another Enquiring Officer, but inspite of this the enquiry was completed. By a memo, dated September 16, 1963, the Respondent No. 2 informed the Petitioner that the charges contained in the charge-sheet dated July 15, 1963, were duly enquired into and the charges of (i) gross negligence of duty and (ii) insubordination were established and he was also directed to show cause by September 19, 1963, why he should not be dismissed or removed from Government service amongst other penalties mentioned therein. Thereafter, by another memo, dated November 22, 1963, the Petitioner was again given chance of submitting his explanation to the charges contained in the said charge-sheet dated July 15, 1963 within December 5, 1963. Then by a memo, dated December 9, 1963, another second show-cause notice was issued to the Petitioner repeating similar statements, namely, that the charges made in the previous second show-cause notice dated September 16, 1963, of gross negligence of duty and insubordination were established against him, and he was directed to show cause, by December 16, 1963, against the proposed order of his dismissal or removal from his service. Thereafter, by letter dated December 11, 1963, the Petitioner was informed that his service was dispensed with (order marked as annEx. C to the petition). The Petitioner being aggrieved by the above disciplinary proceeding culminating in the order dispensing with his service came up to this Court.

In the affidavit-in-opposition on behalf of Respondents Nos. 1 to 4 the facts as pleaded are substantially admitted. Copy of the charge-sheet dated July 15, 1963, has also been marked as annEx. X from which it appears that after recital of the charges it was stated that the issuing authority, namely the Block Development Officer, was satisfied that the Petitioner had committed the above offence and then he was directed to show cause against the proposed order of dismissal, removal or reduction in rank, withholding of pay, increments etc. It is, however, pointed out in para. 6 of the affidavit that the Petitioner in his letter dated July 16, 1963, in reply to the said charge-sheet, while pleading his innocence requested the authorities to forgive and forget, if his dealings and behaviour caused annoyance on any count. It was also stated in para. 11 of the affidavit-in-opposition that in reply to the memo, dated November 23, 1963, the Petitioner was again given an opportunity to show cause against the charges levelled against him, but by his letter dated December 5, 1963, the Petitioner refused to do so. On the contrary, he simply stated that as the enquiry had already been held by the Agricultural Information Officer, Habibpur Block, the Block Development Officer was requested to pronounce his decision whatever it might be in the light of the Enquiry Report. Therefore it was asserted, that such being the position the Petitioner was not entitled to any relief in the instant writ petition.

Upon the admitted facts it was contended on behalf of the Petitioner that the entire disciplinary proceeding ending in dispensing with the service of the Petitioner was highly illegal and irregular as there was gross violation of rules and principles of natural justice. In support of such contention Mr. Chatterjee, the learned Advocate for the Petitioner, submitted that after the order of suspension no charges were framed, but the Petitioner was asked to clarify his conduct and submit his explanation against the series of allegations made by the Block Development Officer in his letter dated February 27, 1963. The Petitioner, in course of correspondence, insisted on supplying him some copies of the documents and ultimately, by his letter dated June 22, 1963 (marked as annEx. v. to the affidavit-in-oppositional) pleaded his innocence but at the same time reiterated his stand that it was not possible to submit his explanation till the copies of the records and documents were furnished to him as referred to in his several previous letters. In reply to these letters the Petitioner was however given opportunity to take copies and expedite submission of fresh explanation by July 7, 1963. There after, the Petitioner by his letter dated July 3, 1963, again stated that he did not do anything wrong to undergo the hardships of the proceeding, and he further stated that if his dealings and behaviour caused annoyance of the officer he would please forgive and forget Thereafter, surprisingly the charges contained in the charge-sheet dated July 15,1963, were framed and issued stating simultaneously that the Block Development Officer was satisfied that the Petitioner committed offences involved in the charges and the Petitioner was directed to show cause not against the charges but against his^ dismissal or removal from Government service or demotion in rank or grade or withholding of increments in pay or against other suitable punishment. This, it was submitted, deprived the Petitioner of a reasonable opportunity of defending himself against the above charges. It was also pointed out that the procedure adopted was entirely incorrect and confusing and thereby the Petitioner was seriously misled.

On a fair reading of this show-cause notice it leaves me in no doubt that the charges were framed and issued with a closed mind. The Respondent No. 2 entirely prejudged the issues and definitely formed his opinion that the Petitioner was already guilty of the offences involved in the charges levelled against him. It was stated that he was satisfied that the Petitioner had committed the offence. It is well-settled that in disciplinary proceedings the rules and principles of natural justice should be meticulously observed. One of such rules is that the charges must be framed and issued against the delinquent servant with a clear and open mind and without any bias. The disciplinary authority must not form any opinion or prejudge the issues at any stage before the delinquent servant is afforded reasonable opportunity to submit his explanation to the charges and defend his cause. If, therefore, it appears that the disciplinary authority failed to comply with such rule, disputed notice to show cause cannot be sustained as a valid notice.

Then again, the Petitioner, as seen above, was not given any opportunity to submit his explanation to the charges levelled against him. What was done in this case was that on being satisfied about the commission of the offence involved in the charges against the Petitioner, he was straightway directed to show cause against the proposed punishment mentioned therein. It cannot be overemphasized that before an enquiry is held and the charges are established on such enquiry, the question of showing cause against the proposed punishment can never arise. It is true that a combined notice to show cause, both against the charges and tentative proposal for punishment, may not always held to be bad, but that again will depend upon the facts and circumstances of each case. In the present case, I can read nothing into the notice which may come within such exception. The instant notice, therefore, in my view, is glaringly illegal and cannot stand a closer scrutiny. The view I am taking is supported by long line of cases following the decision of the Judicial Committee in I.M. Lall v. Secretary of State L.R. 75 I.A. 225. While dealing with this aspect of the matter the Supreme Court following the above decision of the Judicial Committee took the similar view in one of the leading decisions in Khem Chand Vs. The Union of India (UOI )and Others, . S.R. Das, C.J., while delivering the judgment, of the Court, observed as follows:

A close perusal of the judgment of the Judicial Committee in I.M. Lall''s case L.R. 75 IndAp 225 will, however, show that the decision in that case did not proceed on the ground that an opportunity had not been given to I.M. Lall against the proposed punishment merely because in the notice several punishments were included, but the decision proceeded really on the ground that this opportunity should have been given after a stage had been reached where the charges had been established and the competent authority had applied its mind to the gravity or otherwise of the proved charge tentatively and proposed a particular punishment. There is as the Solicitor-General fairly conceded no practical difficulty in following this procedure of giving two notices at the two stages. This procedure also has the merit of giving some assurance to the officer concerned that the competent authority were to determine, before the charges were proved, that a particular punishment would be meted out to the Government servant concerned, the latter may well feel that the competent authority had formed an opinion against him, generally on the subject-matter of the charge or, at any rate, as regards the punishment itself. Considered from this aspect also the construction adopted by us appears to be consonant with the fundamental principle of jurisprudence that justice must not only be done but must also be seen to have been done.

That being the position, all enquiry proceedings or other subsequent proceedings including the show-cause notice at the second stage really ended in empty formalities without any legal consequence.

It was contended on behalf of the Respondents that even after the issue of second show-cause notice dated November 22, 1963, the new Block Development Officer out of sympathy gave the Petitioner another opportunity to submit his explanation to the said first show-cause notice, but the Petitioner took an obstinate attitude and deliberately refrained from submitting any explanation to the charges excepting pleading not guilty and asking the officer to forgive and forget. In these circumstances, it was argued, that the Petitioner should not be allowed to take advantage of his own wrong. I cannot agree. It is true that the Petitioner was asked again to submit explanation, but against what? Against a notice which did not give any opportunity to submit explanation against the charges or at any rate, even if there was any such opportunity, it was against charges over which the authority already formed an adverse opinion that the Petitioner was guilty. In any case, mere failure to submit explanation on the part of the Petitioner can neither convert such a notice into a valid notice nor can cure its illegality or operate as an estoppel against the Petitioner.

In the next place, I find that the second show-cause notice itself suffers from serious infirmity. Firstly, two separate charges of negligence of duty and gross insubordination for the first time were specified and found to have been established although they were never specifically set out in the first notice or they were pot categorised with statement of allegations in support of the charges. Secondly, either of these notices was not accompanied by the report of the Enquiring Officer, which must be supplied to the delinquent servant, so that he might get reasonable opportunity to submit his explanation to the proposed punishment. Therefore, this notice at the second stage cannot be effective as a valid notice affording reasonable opportunity to the Petitioner to show cause against the punishment proposed.

Lastly, it appears that the order which is termed as ''Award'' inflicting, punishment, itself is absolutely vague. It is merely stated that the Petitioner''s service has been dispensed with. It is therefore, difficult to ascertain as to whether the Petitioner was dismissed or removed from his service. This also must be stated with sufficient clarity, because the expression ''dismissal'' or ''removal'', as the case may be, has different legal consequences and that is why these words have been deliberately used in the provisions of Article 311(2) of the Constitution. From this aspect of the matter also the order itself cannot be sustained as a valid order.

Mr. Chatterjee also drew my attention to several other illegalities or irregularities, but for our present purpose it is not necessary to enumerate them with details. Suffice it to say that the procedure adopted in the entire disciplinary proceeding in the present case is misconceived and highly misleading. I have no doubt that this confusion created in the mind of disciplinary authority, is the result of lack of proper appreciation of rules and principles of natural justice or the procedure which require to be observed in complying with such rules in disciplinary proceeding against the delinquent servant as envisaged both in the relevant disciplinary rules and the provisions of Article 311(2) of the Constitution.

Broadly speaking, it is by now well-settled, the disciplinary proceeding involves two stages. First is the enquiry stage when reasonable opportunity requires:

(i) Framing of specific charges with the allegations on which they are based.

(ii) The charges as framed must be intimated to the delinquent servant and must be given thereby opportunity to answer those charges.

(iii) Then an enquiry is to be held in which the delinquent servant must be given an opportunity to defend himself against these charges by cross-examining those witnesses produced against him and also by allowing him to have inspection of the documents intended to be adduced in evidence in support of the charges and by allowing the Petitioner to examine himself or any other witness in support of his defence.

(iv) After considering explanation and on assessment of the evidence that may be adduced, the Enquiring Officer must take its decision relating to the charges framed in accordance with the rules of natural justice.

At the second stage, on perusal of the report of the Enquiring Officer, the appointing authority is required to give a further notice giving an opportunity to the delinquent servant against the proposed punishment if he agrees with the finding of the Enquiring Officer. On perusal of such explanation the appointing authority would take necessary decision and pass orders either inflicting the proposed punishment or exonerating the Petitioner from the charges. The procedure indicated above subject to the rules framed have been held to be a proper procedure for affording ''reasonable opportunity'' generally to the delinquent servant in a disciplinary proceeding before he is dismissed, removed or reduced in rank on charges of misconduct. See in this connection I.M. Lall v. Secretary of State Supra, A.R.S. Choudhury v. Union of India (1956) 60 C.W.N. 933, Bachhittar Singh Vs. The State of Punjab, .

It is quite clear that the procedure for complying with rules of natural justice as indicated above has not been followed in this case. I have, therefore, no hesitation in concluding that the Petitioner has not been given reasonable opportunity to defend his cause before his service was dispensed with. In the above view of the matter the entire disciplinary proceeding resulting in the order dispensing with the service of the Petitioner must be quashed and I order accordingly. I make it clear, however, that this will not prevent the Respondents from initiating a fresh disciplinary proceeding from the stage of issuing notice to the Petitioner containing specific charges with direction to submit explanation and then proceed with the matter in accordance with law.

The result is that the Rule is made absolute, but there will be no order as to costs.

Let a writ in the nature of certiorari and mandamus issue accordingly.