Ganendra Narayan Ray, J. -
(1.) This Rule is directed against an order of dismissal passed by the Trade Adviser and Director of Movements, Government of Assam at Calcutta. The petitioner was a confirmed peon in the Calcutta Office of the Government of Assam and he was appointed by the Trade Adviser and Director of Movements, Government of Assam at Calcutta. It appears that the petitioner was placed under suspension on 2nd July, 1975. Thereafter, a charge sheet was issued against the petitioner by the then Trade Adviser and Director of Movements. The petitioner submitted a reply to the said charge sheet. Thereafter an enquiry was held and after the conclusion of the said enquiry, a second show cause notice was issued to the petitioner asking him to show cause us to why he should not be dismissed from service. It appears from the enquiry report that the charges brought against the petitioner were found established. Thereafter the petitioner showed cause to the respondent No. 2 and contended that the Enquiry Officer himself was a material witness in respect of the charges levelled against the petitioner but the petitioner was not given any opportunity to cross-examine the said Enquiry Officer. The petitioner contends that although the petitioner was not given reasonable opportunity of being heard and although the Enquiry Officer himself was a material witness an order of dismissal was passed unjustly against the petitioner on 29th January, 1976. A copy of the said order of dismissal is Annexure 'H' to the writ petition. The petitioner thereafter preferred an appeal under Rule 13 of the Assam Services, Discipline and Appeal Rules, 1964 and it appears that during the pendency of the Rule the appeal was also dismissed.
(2.) Mr. Malay Kumar Basu, the learned Counsel appearing for the petitioner has contended that there has been a naked violation of the principles of natural justice and fairplay in issuing the charge sheet, in conducting the disciplinary proceeding and in finally adjudicating the same. He has also contended that in the enquiry report, some new facts other than those which were the subject-matter of the charge sheet were taken into consideration and documents were also relied in support of the such incidents behind the back of the petitioner without bringing such documents to the knowledge of the petitioner at any point of time. Mr. Basu has contended that the petitioner was, therefore, deprived of the opportunity to show the falsity or otherwise of such documents relied on behind the back of the petitioner without giving the petitioner any opportunity of being heard, and the punishment imposed on the petitioner on consideration of such documents must be held to be illegal and void, Mr. Basu has also contended that in the instant case, the judge himself had become a prosecutor and on that score alone the entire disciplinary proceedings and the orders passed therein must be quashed. He has also contended that the appellate order is also bad on the face of it. It is not only cryptic but it does not disclose any reason as to why the Appellate Authority has dispelled the contention raised by the petitioner in his Memorandum of Appeal.
Mr. Basu has, therefore, submitted that the said appellate order should also be quashed. In support of his contention, Mr. Basu has referred to a decision of the Supreme Court made in the case of Bhagatpura Motor Transport Co-operative Society v. K.S. Jhala reported in AIR 1965 Rajasthan, page 149. It has been held in the said decision that it is fundamental principle of natural justice that a person who himself is a witness in a case and the Lets to be determined by him are in his personal knowledge should not take upon himself the duty of a final Arbitrator of the matter in controversy. Justice should not only be done but the same manifestly and undoubtedly must seem to have been done. In the said decision, reliance on the decision of the Supreme Court made in the case of Gullanapolli N. Rao, v. Andhra Pradesh State Transport Corporation, reported in AIR 1959 SC page 308 was made, Mr. Basu in his fairness his however contended that if there is no other authority who can cause any enquiry and give punishment then the enquiry officer who may have a personal knowledge in the matter can cause an enquiry but barring such exceptional case, as a fair principle of natural justice, a Judge cannot act as a prosecutor. For this contention, Mr. Basu has referred to a decision of the Allahabad High Court made in the case of Brindaban v. Sate of Uttar Pradesh, reported in 1973 (1) Service Law Report, page 111. It has been held in the said decision that there is no doubt that when there is only one authority which can conduct the proceedings and that authority is biased against the person against whom the proceedings are conducted then the bias will not vitiate the proceedings.
But this rule is not applicable where an alternative authority can be found to conduct the proceedings. He has submitted that under Rule 8(4) of the Assam Services, Discipline and Appeal Rules, 1964 on receipt of the written statement of defence the disciplinary authority may himself enquire into the allegations contained in the charge sheet as are not admitted and if he considers it necessary to do so, he may appoint for the purpose an Enquiry Officer or a Board of Enquiry. Mr. Basu has, therefore, contended that Trade Adviser and Director of Movements, Government of Assam, Calcutta being a material witness in the facts of the case should not have conducted the enquiry but he should have authorised somebody who was not a witness in the matter. Mr. Basu has also contended that if records of past conduct are taken into consideration for lessening the proposed punishment, then no notice need be given to the delinquent officer but if such records are taken into consideration for the purpose of inflicting proposed punishment or harsher punishment, then the notice of the past records must be given to the delinquent officer and he should also be given reasonable opportunity to defend. For this contention, the decision of the Supreme Court made in the case of State of Uttar Pradesh v. Harish Chandra Singh, reported in 1969(1) Supreme Court Cases, page 403 was relied on. Mr. Basu has also referred to another decision of the Supreme Court made in the case of State of Mysore v. K. Manche Gowada, reported in 1964 (4) Supreme Court Reporter at page 540.
It has been also held in the said decision that if the proposed punishment is also based on previous punishment or previous bad records than the same should be included in the second show cause notice, so that the delinquent officer may be able to give his explanation. To appreciate the contention of Mr. Basu it will be necessary to refer to the charge sheet issued against the petitioner on 21st August, 1975 which is Annexure 'D' to the writ petition. It has been stated in the said charge sheet that on 1st July, 1975/2nd July, 1975 night, the petitioner was on duty at the entrance of Assam House Building as night Chowkidar. But one stranger of suspicious character entered the Circuit House of the Assam House Building on 2nd July, 1975 early in the morning. The petitioner did not challenge the entry of the person nor did he obtain the particulars of the stranger entered in the Register maintained by the night Chowkidar regarding entry of outsiders into Assam House as the petitioner did not attend his duties. On previous occasions namely on 23rd June, 1975 and 26th June, 19 5 nights, the petitioner was also not found on duty and the petitioner had b-en sufficiently warned on those occasions. The petitioner was, therefore, charged with an act of indiscipline and gross negligence of duty. It also appears from the enquiry report that on 23rd June, 1975 and 26th June, 1975, the petitioner was not found in his duty and on 26th June, 1975 during his duty hours he was playing cards with some outsiders by the side of the road outside Assam House.
The said incident when the petitioner was found playing cards outside the Assam House was noticed by the Trade Adviser himself as he had come at late hours after attending the Calcutta Airport. In the report of the Enquiry Officer it was staled that for the said lapses, the petitioner was sufficiently warned but again on 2nd July, 1975 night the petitioner remained absent in duty for which he could not apprehend an intruder in the Assam House and he had also not got his name registered in the book kept with the night guard. It appears that fire prosecution witnesses were examined including one Sri Dilip Goswami and the petitioner cross-examined the prosecution witnesses and he himself also examined three witnesses in support of his case. It appears that prosecution witness No. 1, Sri D.N. Hazarika who is the Lisison Officer in his evidence stated that in February/March, 1975 an outsider entered into the Assam House in the morning when an Ex-Minister of Assam was staying and taking advantage of the situation that the said occupant went to the bathroom, the outsider took away his money bag kept in the wardrobe in his room.
It appears that the Supervising Authority then issued an order which was also exhibited as Ext. 1 by which it was directed that the Chowkidar should keep the front door of the Assam House closed from 10 P.M. to 6 A.M. next morning and the night guard was also directed that any person entering Assam House during this period must record his name, address and purpose of visit to Assam House in a register. Such register was provided to the night Chowkidar and the register was also exhibited as Ext. 2. The petitioner was ordered on May 29, 1975 to work as night Chowkidar as the regular incumbent went on earned leave. On 2nd July, 1975, a similar incident had occurred when a suspicious character entered the Assam House and also tried to enter into the room No. 18 where Sri Dilip Goswami was staying with his wife. As Sri Goswami was not asleep at that time the suspicious character could do no harm but fled away. Sri Dilip Goswami reported the incident to him. It appears from the enquiry report that the prosecution witness No. I, Sri Hazarika had stated that the petitioner remained absent from duties on previous occasions also and the night Chowkidar's attendance register was exhibited in the proceeding being marked as Ext. 4 and it appears that the petitioner, Sri Hiralal Shah had never made entries regarding his attendance. The said witness had recorded his observation regarding the non-entry in the attendance register in different pages of Ext. 4 and such entries were also referred to in the enquiry proceeding.
The said witness Sri Hazarika also stated that the petitioner was very argumentative and had always avoided his duties and he was extremely irregular and inclined to float orders. He was sufficiently warned in the past for such conducts. To substantiate his observations the said witness pointed out a number of orders passed by the different Trade Advisers and Director of Movements giving warning the petitioner Hiralal Shah. It appears the! on 30th April, 1964, the then Trade Adviser and Director of Movement recorded that the conduct of the petitioner was not satisfactory and he was always inclined to float the order. It also appears that on 30th July, 1964, the then Trade Adviser and Director of Movements suspended the petitioner and such order was also produced before the Enquiry Officer being marked as Ext. 6. It also appears that on December 5, 1964, the then Trade Adviser and Director of Movements warned the petitioner to the effect that if the petitioner indulged in insubordination in future, drastic action would be taken against him and such warning was also recorded in writing and was marked as Ext. 7. It appears that again on 13th May, 1969 the then Trade Adviser and Director of Movements similarly observed that on any future complaint received against the petitioner, his service would be terminated.
The Gate Chowkidar of the Assam House was examined as prosecution witness No. 2 and the said Chowkidar has also stated that he found the petitioner playing cards with some outsiders outside the gate of the Assam House although he was on duty at that time as night Chowkidar inside the house. Sri D. K. Goswami who was occupent of room No. 18 when an intruder tried to enter his room on the early morning of 2nd July, 1975 also deposed in the enquiry proceeding and he stated that a stranger suspiciously tried to enter his room by very slowly opening the door but as he was awake he questioned the person to which he only gave some irrelevant reply and immediately retreated closing the door behind. The Nazir-cum-Receptionist of the Assam House was also examined as a prosecution witness and he had also stated that the petitioner did not do his work properly and used to disobey him in past for which he had warned the petitioner a number of occasions but the petitioner did not pay any need to the warning. He had also stated about some lapses of the petitioner on the earlier occasions. He stated further that on 22nd June, 1975 night Sri Shah was working as a night Chowkidar. He came on that day at about 12-30 A. M. with the Trade Adviser after attending the Chief Minister of Assam at the Airport. But he found the door leading to the entrance to the Assam House open and the petitioner, the night guard, was not found anywhere. In the early morning at about 4-30 A. M. he again went with the Trade Adviser and Director of Movements to meet the Chief Minister at the Airport, but even at that time, he was not found in his place of duty.
The Upper Division Assistant and In-charge of Establishment section has also deposed on behalf of the prosecution against the petitioner and he has also stated that for not doing his duty on 23rd June, 1975, one day's Casual Leave was deducted by the order of Trade Adviser and Director of Movements and he was also warned to be careful regarding his duties in future. Such order was communicated to the petitioner. It appears that the petitioner examined the Superintendent in the office of the Trade Adviser and Director of Movements and Sri J. K. Sengupta, who was Superintendent in the Movement section of the office of the Trade Adviser and Director of Movements and also Sri P. L. Das, Senior Accountant in the said office. But from the enquiry report it transpires that the said witnesses did not know anything about the occurrence and they had nothing to say in favour of the petitioner. Sri A.C. Dey, Superintendent, who was examined by the petitioner had also stated that there were several complaints against the petitioner when he had worked in the Circuit House Branch. Mr. Basu has contended that the incident of 22nd and 23rd June, 1975 was taken into account both by the Enquiry Officer and also by the punishing authority and as a matter of fact even in the charge sheet the lapses made on 23rd and 26th June, 1975 had been noted. The Trade Adviser who is the punishing authority was a witness to the said incident on 23rd June, 1975.
Accordingly he had relied on his own knowledge and thus became a judge of his own cause. The petitioner was not given any opportunity to cross-examine him. Accordingly, the disciplinary proceeding must fail because the judge himself was the prosecutor. He has contended that the Trade Adviser and Director of Movements being the disciplinary authority had also acted as the Enquiry Officer in the instant case and although other witnesses were examined on behalf of the prosecution to substantiate the charges levelled against the petitioner the Enquiry Officer and the punishing authority cannot but be biased against the petitioner because he himself had knowledge about the lapses of the petitioner which will be apparent from the enquiry report itself. In the circumstances, he cannot give a fair and unbiased report against the petitioner and it only expected that he will judge the case of the petitioner is an unbiased manner. Mr. Basu has contended that there are other officers in the office of the Trade Adviser and Director of Movements, Government of Assam in Calcutta in the facts and circumstances of the case, it is desirable that any other officer should have been appointed as an Enquiry Officer. But strangely the disciplinary authority has been chosen to be the Enquiry Officer and he conducted the disciplinary proceeding.
It appears from the supplementary affidavit-in-opposition filed on behalf of the respondents, that at the relevant time when the enquiry was held against the petitioner there were two Gazetted Officers namely, the Trade Adviser himself and Sri D. N. Hazarika who was the Lisison Officer. The other persons were all non-Gazetted Officers. It has been stated that the said office in Calcutta is a very small one and the other non-Gazetted Officers also figured as witnesses in the disciplinary proceedings initiated against the petitioner. It has been contended that excepting the Trade Adviser there was no other proper person to hold the enquiry against the petitioner at the relevent time. It has been contended that the said Trade Adviser did not figure as a witness in the enquiry and he did not impart his personal knowledge while holding the inquiry and the allegations of charges were proved by examining independent witness. It has also been stated that the said Trade Officer who held the enquiry and who was the disciplinary authority was not a witness to the incident of 1st and 2nd July, 1975 which is the subject-matter of the charge sheet and from the record it transpires that the said Trade Officer did not impart his personal knowledge while holding the enquiry and the charges were sought to be proved by examining independent witness. Mr. Bose, the learned Counsel for the petitioner has also contended that it is a fundamental principle of natural justice that the officer selected to make an enquiry should be a person of open mind and not the person who is either biased against the delinquent officer. For this contention, he has referred to a decision of this Court made in the case of Ram Adhin Singh v. State of West Bengal, reported in 1973 CLJ page at 52. He has also referred to an unreported Bench Decision of the Court made in F.M.A No. 694 of 1979 (Disposed of 10th November, 1981). It has been held in the said decision that consideration of past records without disclosing in the second show-cause notice that such past records would be considered must be held to be illegal and violative of principles of natural justice.
(3.) Mr. Tagore, the learned Counsel appearing for the respondents has submitted that the petitioner did not challenge the legality of the disciplinary proceeding at the time of holding the disciplinary proceeding by the Trade Officer as Enquiry Officer. On the contrary, without any objection whatsoever, he had participated in the said disciplinary proceeding and cross-examined the witnesses examined on behalf of the department. He also examined witnesses in support of his case. Mr. Tagore therefore contends that the petitioner should not be permitted to contend that the disciplinary proceeding conducted by the Trade Officer is perverse illegal at a later stage, when the disciplinary proceeding was completely concluded and the order was passed in the disciplinary proceeding. In support of this contention, Mr. Tagore has referred to a decision of the Supreme Court made in the case of Dr. G. Saran v. University of Lucknow, reported in 1976(3) SCC 585. It has been held in the said decision that Dr. Saran having appeared before the Selection Committee was not permitted to challenge the jurisdiction of the Selection Committee to make the selection and it appears that the Supreme Court has also followed an earlier decision of the Supreme Court made in the case of Manaklal v. Premchand, reported in AIR 1957 SC at page 425. Mr. Tagore has also contended that after the order of dismissal was passed by the disciplinary authority the petitioner moved this Court in the Constitutional Writ Jurisdiction and a Rule was issued by this Court. The petitioner did not press the said Rule and the Rule was discharged for non-prosecution. He, therefore, submits that if the petitioner contends that the disciplinary proceeding is vitiated because of the holding of enquiry by the disciplinary authority himself who had personal knowledge in the facts and circumstances of the case, the petitioner ought to have proceeded with the said earlier writ petition and he should not be permitted to agitate the same point at a later stage. It may be noted in this connection that while the said Rule was pending, the decision of the Appellate Authority was passed an the petitioner did not press the Rule and the Rule was discharged for non-prosecution. Thereafter the instant writ petition has been moved challenging the order passed by the disciplinary authority and also by the Appellate Authority. Mr. Tagore has also contended that in the enquiry report itself which was forwarded to the petitioner asking the petitioner to show cause why he should not be dismissed from service, the incidents of earlier misconducts have been clearly quoted and the petitioner was given reasonable opportunity to explain the facts and circumstances disclosed in the enquiry report regarding earlier lapses on the pant of the petitioner. Even the witness examined by the department had stated about such misconduct in the presence of the petitioner who had opportunity to cross-examined the witnesses aDd as a matter of fact had cross-examined the witnesses examined by the department. Mr. Tagore has contended that such lapses had been enquired into an earlier occasions and departmental orders had been passed and such orders have become part of the service record of the petitioner. The disciplinary authority has a right to take into consideration the past records of a delinquent officer for the purpose of deciding the quantum of punishment to be inflicted on such delinquent officer and as the petitioner has been given full opportunity to meet the allegations made in the enquiry report containing past lapses on the part of the petitioner it cannot be held that any injustice has been done to the petitioner and opportunity of being heard has been denied to him. For this contention, Mr. Tagore has also relied on the decision of the Supreme Court made in the case of State of Mysore v. K. Manche Gowada, AIR 1964 SC page 506 which has been cited by Mr. Bose in a different context. It has been held in the said decision that if proposed punishment is also based on previous punishment or the previous bad record, the same should be included in the second show cause notice so that the delinquent officer may be able to give his explanation. Mr. Tagore has also referred to another decision of the Supreme Court made in the case of Krishna Chandra Tandon v. Union of India, reported in 1974(4) Supreme Court Cases, at page 374. It has been held in the said decision that when the report of the Enquiry Officer was sent by the disciplinary authority for comments of the delinquent officer and thereafter the second show cause notice was issued and the explanation of the said second show cause notice was duly considered then it was not necessary for the disciplinary authority to make precise summary of the evidence against him and furnishing the reasons or grounds for arriving at the provisional conclusion. Mr. Tagore has submitted that in the facts and circumstances of the instant case, the decision made in the Ram Adhin Singh's case and also the unreported decision made in F.M.A. No. 694 of 1979 since relied on by Mr. Bose can he clearly distinguished. In Ram Adhin's case, in the charge sheet itself it was indicated that the delinquent officer deserved punishment of dismissal. The punishing authority was also the Enquiring Officer and before enquiry he indicated his decision in the charge sheet itself. It was held in the said facts and circumstances of the case that the entire proceeding was mere faree and pretence. In F.M.A. No. 694 of 1979 it has been noted by this Court that past records of the delinquent officer have not disclosed and it was also not disclosed that such past records would be taken into consideration. Mr. Tagore has contended that in the instant case, past conducts have been clearly indicated in the enquiry report and opportunity to show cause was given to the petitioner and hence the Bench decision made in the said unreported case is also not attracted in the facts of the instant case.;