- (1.) THIS is an appeal by the Commissioners for the port of Calcutta and others against the judgment and order of A. K. Sinha, J. dated September 7, 1971 whereby the c. R. No. 1340 (W) of 1968 was made absolute. The facts, according to the petitioner are as follows: the petitioner was appointed a driver under the Port Administration since August, 1944 and worked in a lorry under the direct supervision of a mate. On November 29, 1964 the petitioner was booked in Conservancy Lorry no. WBL-2144 under the disposal of the Health Office. At about 7 a. m. he reported to the Health Office and was directed to drive as per instruction of the Mate Dasarathi Sarkar, first to howrah Bridge area and then at 'a' dock, Kidderpore at about 10 a. m. The mate and his men boarded the lorry. As the lorry was passing through Gate no. 9 towards dumping ground, it was stopped by a police constable on duty, and on search two polythene bags containing polythene granules were found in the garbage of the lorry. The petitioner, the Mate and four coolies were arrested and thereafter in due course placed on trial before the Presidency, magistrate, Fourth Court, Calcutta on a charge under section 411 of the Indian penal Code. By the judgment dated august 30, 1965 the petitioner and the coolies were acquitted, but the Mate was found guilty under the same charge and was convicted and sentenced to imprisonment. The petitioner was charge-sheeted by the Deputy Chairman on January 20, 1966 on three charges (a) for taking lorry to 'a' shed at 10 a. m. though the place of duty was elsewhere, (b) not reporting to appropriate authorities for such taking of the lorry elsewhere otherwise than where it was booked and (c) for being negligent in the discharge of duties as a result of which two polythene bags were loaded or found in the lorry. Petitioner's written defence was that after the completion of the work as Howrah Bridge, he took the lorry to 'a' Shed, Kidderpore Dock under the Mate's instructions which he had to do as he had no choice in the matter. The Mate and his men got down there while the petitioner remained sitting at the wheel. They returned after twenty minutes and the mate directed him to drive towards the dumping ground As he was passing through the gate No. 9 he was stopped by the police constable and taken to thana. Except as stated above the petitioner did not admit any other allegations and the charges against him were denied.
(2.) AN enquiry was held by the respondent No. 4, Planning Officer, port Commissioners, Calcutta and he submitted his report together with his finding on October 25, 1966. It was found (a) that there was a conspiracy and both the petitioner and the Mate were parties to it and therefore both of them were guilty of misconduct, (b) though there was a reason for the petitioner's failure to submit any statement about the movement of the lorry as stated by him in view of the pending criminal proceeding, there was no reason for not disclosing it before the Sanitary Sub-Inspector, the Supervisory Staff on the spot. The only reason was that "there was a conspiracy and every one was involved in this". The charge accordingly was held as proved. (c) There was a conspiracy to which all delinquents were parties as mentioned in the charge-sheet The two bags of polythene were found in the lorry though the petitioner had no business to supervise the loading, he could not shirk his responsibility.
(3.) ALL the charges were thus held at proved against the delinquents and it was recommended that they should be removed from service. It may be mentioned here that the charges against the delinquents were enquired in the same enquiry proceeding.;