West Bengal Forest Development Corporation Ltd. vs Chittaranjan Bhunia

Ranjit Kumar Bag, J.—This appeal at the instance of the respondent No. 1 of the writ petition arises out of order dated 26.04.2012 passed in W.P. 5717(w) of 2010, by which the learned Single Judge was pleased to quash the charge-sheet and the penalty imposed on the writ petitioner and directed the appellant to give all the benefits to the writ petitioner within a period of eight weeks from the date of communication of the order.

The writ petitioner is en employee of the West Bengal Forest Development Corporation Limited (hereinafter referred to as the appellant). He got promotion to the post of Range Manager in the year 1996 and posted at Buxa Logging Division in the District of Cooch Bihar. In the year 2003 he was transferred to Cashew Plantation Division and posted at Range-I at Midnapur Sadar. The writ petitioner was placed under suspension by the Divisional Manager, Cashew Plantation Division, Midnapur on 12.04.2005 and thereafter charge-sheet was issued against him by the General Manager (headquarters) of the West Bengal Forest Development Corporation Limited on 27.10.2005. The writ petitioner challenged the order of suspension and issuance of charge-sheet against him by filing one writ petition before this Court which was disposed of by learned Single Judge on 22.02.2007 without granting any relief to the writ petitioner. The writ petitioner preferred an appeal before the Division Bench of this High Court against the order of learned Single Judge and the Division Bench had set aside the order of suspension and issuance of charge-sheet against the writ petitioner on the following grounds:

"i) that the charge-sheet was not issued by the Disciplinary Authority;

ii) that the charge-sheet was not issued in accordance with the provisions of the West Bengal Forest Development Corporation Limited Service Rules, 1974 by which the writ petitioner is governed;

iii) that the charge-sheet was issued after expiry of two months from the date of suspension of the writ petitioner in violation of Rule 47(a) of the West Bengal Forest Development Corporation Limited Service Rules, 1974 and;

iv) that the order of suspension was also not passed by the Disciplinary Authority of the writ petitioner."

The writ petitioner was reinstated in service in compliance with the direction given by the Division Bench of this High Court and he was posted as Range Manager attached to the Divisional Office with headquarters at Midnapur. However, on 18.07.2008 the Managing Director of the West Bengal Forest Development Corporation Limited being the Disciplinary Authority of the writ petitioner issued charge-sheet against the writ petitioner on the self same allegation on which the earlier charge-sheet was issued. The writ petitioner participated in the Departmental enquiry on the basis of second charge-sheet issued against him by the Disciplinary Authority. Ultimately, the Enquiry Officer found the writ petitioner guilty of the charge and the Disciplinary Authority imposed the penalty by way of reduction of his pay to a lower time scale of pay for a period of two years with the proviso that at the end of the said period the pay scale of the writ petitioner will be restored at the existing level and his seniority will be refixed. The writ petitioner preferred W.P. 5717(w) of 2010 challenging the order of penalty imposed on him by the Disciplinary Authority. The writ petitioner also challenged the order of transfer of the writ petitioner in the said writ petition.

The said writ petition was disposed of on 26.04.2012 and the learned Single judge had set aside the order of imposition of penalty on the writ petitioner on the following grounds:

"(i) that the earlier Division Bench did not give any liberty to the Disciplinary Authority to issue the second charge-sheet on the selfsame allegation on which the earlier charge-sheet was issued and quashed by the Division Bench,

(ii) that the order of earlier Division Bench has reached its finality as the said order has not been challenged by the appellant before the Higher Forum and as such the Disciplinary Authority cannot proceed against the writ petitioner by issuing second charge-sheet on the self-same allegation on which the earlier charge-sheet was issued and quashed;

(iii) that the issuance of second charge-sheet against the writ petitioner is also barred by limitation as laid down in Rule 47(a) of the West Bengal Forest Development Corporation Limited Service Rules, 1974."

It is relevant to point out that no submission is made from the bar with regard to the prayer of the writ petitioner for cancelling the order of his transfer, nor has the learned Single Judge passed any order with regard to the said prayer for cancellation of the order of transfer of the writ petitioner.

Mr. Soumya Majumder, learned Counsel appearing on behalf of the appellant submits that the earlier Division Bench did not adjudicate on the charge-sheet on merit, but the same was set aside by the earlier Division Bench on three grounds:

"first, the charge-sheet was issued by an Authority which is lower than the Disciplinary Authority of the writ petitioner; secondly, the charge-sheet was issued after two months from the date of suspension of the writ petitioner in violation of the provisions of Rule 47(a) of the West Bengal Forest Development Corporation Limited Service Rules, 1974, and thirdly, the provision of General Rules of West Bengal Services (Classification Control and Appeal) Rules, 1971 were invoked for issuing charge-sheet against the writ petitioner, inspite of existence of the specific rules, namely, West Bengal Forest Development Corporation Service Rules, 1974 by which the writ petitioner is governed. According to Mr. Majumder, there is no bar under the law to issue the second charge-sheet against the writ petitioner on the self-same allegation on which the earlier charge-sheet was issued when the earlier charge-sheet was not set aside on merit by the Division Bench of this High Court. Mr. Majumder has also contended that the writ petitioner was not under suspension at the time of issuing the second charge-sheet and as such the bar under Section 47(a) of the West Bengal Forest Development Corporation Limited Service Rules, 1974 cannot be attracted as held by learned Single Judge. The last contention of Mr. Majumder is that the writ petitioner acquiesced in the departmental enquiry by participating in the said enquiry initiated on the basis of the second charge-sheet and as such he is estopped from challenging the said departmental enquiry on the charge of corruption, misappropriation of fund and dereliction of duty."

Mr. Ashit Kumar Chakraborty, learned Counsel appearing on behalf of the writ petitioner/respondent No. 1 submits that the charge-sheet issued against the writ petitioner was quashed by the Division Bench of this High Court and the order of Division Bench has reached its finality for all time to come and as such the Disciplinary Authority has no jurisdiction to issue second charge-sheet on the self-same allegation on which the earlier charge-sheet was issued, particularly when the Disciplinary Authority did not obtain the leave of the Division Bench to proceed against the writ petitioner by issuing second charge-sheet on the self-same allegation. The next contention of Mr. Chakraborty is that the second charge-sheet issued against the writ petitioner is also barred by limitation as laid down under Rule 47(a) of the West Bengal Forest Development Corporation Limited Service Rules, 1974. The last submission of Mr. Chakraborty is that the order of quashing of earlier charge by the Division Bench will operate as res judicata, because the order of the Division Bench is binding on the parties and as such the Disciplinary Authority of the writ petitioner cannot issue the second charge-sheet on the self-same allegation and proceed with the departmental inquiry and as such the order of imposition of penalty on the writ petitioner has been rightly set aside by the Learned Single Judge. Mr. Chakraborty has relied on the decision reported in 2010(2) CLJ (Cal) 278 (G. M. (PA), Allahabad Bank & Ors. v. S.S. Mukherjee) and the decision reported in Ishwar Dutt Vs. Land Acquisition Collector and Another, in support of his contention.

On perusal of the decision in the case of "General Manager (PA), Allahabad Bank & Ors. V. Shib Sankar Mukherjee" reported in 2010(2) CLJ (Cal) 278, it appears that the Special Bench of our High Court has laid down that the party aggrieved by the finding given by the First Division Bench had the opportunity of challenging such finding before the Higher Forum but no appeal was filed against such finding and as such, such finding is binding on the parties and the doctrine of res judicata would be applicable in the subsequent proceedings between the parties or their representatives. In this reported case it is held that there is no scope of referring to the Larger Bench the question of fact or even a mixed question of law and fact already decided by a co-ordinate Bench in the earlier judicial proceedings between the self-same parties or parties claiming through them which has since attained finality for not preferring appeal to a Higher Forum at the instance of the aggrieved party. In the instant case the earlier Division Bench did not decide the merit of the charge-sheet issued against the writ petitioner but the charge was quashed by the earlier Division Bench on the grounds that the charge-sheet was issued by the Authority not empowered under the law to issue the same, that the charge-sheet was issued after two months from the date of placing the writ petitioner under suspension in violation of the Rules by which the writ petitioner is governed and that the provision of Rules invoked for issuing the charge-sheet was not applicable to the writ petitioner. Accordingly, the issue decided by the earlier Division Bench is that the charge-sheet issued by the incompetent authority in violation of the provisions of the Rules by which the writ petitioner is governed cannot sustain in law, whereas the issue to be decided by this Division Bench is whether the disciplinary authority can issue the second charge-sheet on the self-same allegation on which the earlier charge-sheet was quashed by the Court for want of jurisdiction and as such the issue decided by the earlier Division Bench cannot operate as res judicata as contended on behalf of the writ petitioner. Accordingly, the ratio of the decision reported in 2010(2) CLJ (Cal) 278 (G.M. (PA), Allahabad Bank & Ors. v. S.S. Mukheerjee) is not applicable in the facts of the present case.

In Ishwar Dutt Vs. Land Acquisition Collector and Another, , it is decided by the Supreme Court in paragraph 29 that the principles of res judicata can be invoked not only in separate subsequent proceedings, but they also get attracted in subsequent stage of the same proceedings. In the instant case, the order of quashing of the earlier charge by the Division Bench of this High Court on the ground of want of jurisdiction of the authority concerned in an earlier appeal arising out of the order passed in another writ petition cannot be construed as earlier stage of the instant appeal between the same parties. While agreeing with the proposition of law laid down by the Apex Court, we find that the ratio of the said decision cannot be made applicable in the facts of the present case.

Having heard the learned Counsel representing the respective parties and on consideration of the materials on record, we find that the writ petitioner was not placed under suspension when the second charge-sheet was issued by the Disciplinary Authority and as such the bar under Rule 47(a) of the West Bengal Forest Development Corporation Limited Service Rules, 1974 cannot be attracted and as such we are unable to accept the contention made on behalf of the writ petitioner that the second charge-sheet is barred by limitation.

In view of our above findings, we are of the view that there is no bar under the law to hold the departmental enquiry by issuing the second charge-sheet on the self-same allegation on which the earlier charge-sheet was issued and quashed by the Court for want of jurisdiction. There is no requirement under the law that the Disciplinary Authority will have to obtain the leave of the Court for holding departmental enquiry by issuing second charge-sheet on self-same allegations on which the earlier charge-sheet was issued by the incompetent authority by invoking wrong provision of rules and quashed by the Court for want of jurisdiction and for violation of the provisions of the Rules by which the delinquent employee was governed, particularly when the allegation mentioned in the earlier charge-sheet was not decided on merit. Moreover, the writ petitioner acquiesced in the departmental enquiry initiated on the basis of the second charge-sheet by contesting the charge and participating in the said enquiry. It is also relevant to point out that the writ petitioner faced the serious charge of corruption, misappropriation of fund and dereliction of duty in the departmental enquiry which culminated in the order of imposition of penalty on the writ petitioner.

Accordingly, we are inclined to set aside the order passed by the learned Single Judge. The order dated 26.4.2012 passed in W.P. 5717(W) of 2010 is, thus, set aside. The appeal is allowed. There will be no order as to costs.

Urgent certified xerox copy of this judgment, if applied for, shall be given to the parties as expeditiously as possible after compliance with all necessary formalities.