1. This matter was originally filed before the Hon'ble Calcutta High Court as a writ petition in the year 1982 challenging the charge-sheets dated 10.11.70 and 23.2.71, two enquiry reports, two punishment show cause notices dated 27.1.73, the penalty order dated 11.5.73 as also the appellate orders dt. 17.6.80 and 4.2.81. A rule was issued on 10.5.82 by the High Court. Subsequently, by operation of Section 29 of the A.T. Act, this writ petition stood transferred to this Tribunal for disposal in the year 1995 and renumbered as T.A. 20 of 1995.
2. At the material time, the applicant was working as Laboratory Assistant in Desbhbandu Vidyalaya (Boys') under the Chittaranjan Locomotive Works (CLW). The case of the applicant is that on being appointed as Laboratory Asst., he was posted in the Biological Laboratory of the aforesaid school on and from 22.3.65. According to the applicant, he had no knoweldge about biology and his services were being utilised for clerical job of the school though he occasionally performed certain common duties in the said Biological Laboratory. It is the case of the applicant that as Laboratory Asst., he never kept the keys of the laboratory or its store. On or about 29.6.70, there was some alleged theft of instruments from the said laboratory and at the relevant time, the key was being kept by the Principal himself. On the next date i.e. on 30.6.70, the Principal issued a letter directing all Laboratory Assistants to keep the keys of the laboratory and its almirahs in their custody (Annexure-A). The petitioner refused to accept the keys unless charge of the stores was properly handed over to him after due verification. However, the applicant was insisted by the Principal to take charge of the key to which he wrote a letter dt.
2.7.70 reiterating his earlier stand (Annexure-B). By another letter dt. 4.7.70, the Principal again asked the petitioner to take possession of the key and the applicant again refused to oblige and gave a reply on 7.7.70. Thereafter, by a circular dt. 25.8.70, the duty chart of the laboratory assistants was circulated as per Annexure-D. Thereafter on 8.9.70, the Principal again asked the applicant take possession of the keys against which the applicant submitted a representation on 20.9.70 seeking certain clarification regarding additional duties as store keeper etc.
3. At this point of time, the applicant was placed under suspension by an order dt. 15.9.70 w.e.f. 16.9.70. Thereafter, on 10.11.70, the petitioner was served with a charge sheet on the allegation that the applicant failed to carry out the orders of his superior officer relating to taking over the keys of the laboratory. A copy of the charge-sheet is at Annexure-G to the application. An enquiry was started and the applicant made a representation for supply of various documents but, according to the applicant, he was supplied with only 8 documents and his prayer relating to other documents was refused as per Annexure-I. It is the contention of the applicant that by denying him the required documents, the respondents have denied him adequate opportunity to defend himself in the enquiry. Thus he also could not file his statement of defence to the above chargesheets.
4. At this stage, another charge-sheet dt. 23.2.71 was issued to the applicant (Annexure-J) in which the following imputation was made- "that the said Sri Rama Anand Roy while functioning as temporary Laboratory Assistant, D.V. (B) during the period from 22.3.65 onwards displayed gross dereliction of duty resulting in loss of laboratory articles as indicated in the statement of misconduct or misbehaviour." 5. The applicant has alleged that this charge-sheet was issued in close and bias mind and at the instance of the Principal, who was the custodian of the keys at the relevant time when such loss had occurred.
According to him after the alleged theft, a police case was also instituted and that at no point of time, he was implicated in the theft, yet such an arbitrary and illegal chargesheet was issued against him in order to harass him since he did not take possession of the key without proper verfication of the stores. The applicant made representation for giving him opportunity to inspect certain documents which was denied to him.
6. In the meantime, the enquiry based on the first charge-sheet was held ex pane and report was submitted on. Based on the same, the respondent authorities issued a show cause notice to the applicant on 23.11.71 proposing to remove him from service. The applicant submitted a representation pointing out various defects in the enquiry proceedings by his letter dt. 15.2.71. Thereafter, a fresh enquiry was ordered on 6.4.72 as per Annexure-K. It is also submitted by the applicant similarly a fresh enquiry was also ordered in terms of order dt. 6.4.72 (Annexure-K 1). According to the applicant the fresh enquiry was also held without giving his proper opportunity to defend him and the enquiry officer acted in violation of the rules of natural justice.
He has also stated that the enquiry officer was further changed without any reason. However, the enquiry reports were submitted on 22.5.72 (in relation to first charge-sheet) and 17.1.73 (in relation to second charge-sheet). Thereafter, two show cause notice were issued to the applicant on 27.1.73.
7. At this point of lime, the applicant moved the Hon'ble High Court at Calcutta by filing a writ petition bearing No. CR 1233-W/73. During the pendency of the order of removal by way of punishment dt. 11.5.73 w.e.f. 15.5.73 was sought to be challenged by filing an amendment petition. The said petition was dismissed. Eventually, the writ petition was also dismissed on 2.8.77 by Hon'ble Mr. Justice M.N. Roy.
Being aggrieved, the applicant preferred an appeal being FMA No. 859 of 1977. The said appeal was decided on 4.6.79 upholding the order appealed against. However, it was observed that the appellant did not file any statutory appeal against the punishment order and hence liberty was given to the appellant to prefer an appeal to the appellate authority under the statute, if not otherwise barred and this order was passed without prejudice to the rights and contentions of either party.
8. Thereafter, the applicant filed an appeal on 10.4.80 which was rejected on 17.6.80. The applicant preferred another appeal on 17.8.80 and this was taken as a review petition and was rejected by order dt.
4.2.81. Thereafter, the applicant filed the instant writ petition before the Calcutta High Court as already stated earlier.
9. The respondents have filed a reply contesting the writ petition. It is stated therein that during the employment of the applicant, he was found negligent in work, disobedient to superiors and his dereliction to duties resulted in loss of laboratory articles. As such he was issued with two charge sheets dt. 10.11.70 and 23.1.71. Several opportunities were given to the applicant to defend his case in the enquiry but he deliberately restrained himself from taking part in the said enquiry. As such both the enquiries were decided ex pane against him. When show cause notice was issued to the applicant, he made an appeal before the competent authority to allow him an opportunity of being heard afresh. Accordingly, fresh enquiry was ordered by the competent authority by appointing separate enquiry officers. On this occasion, the applicant took part in the proceeding along with his defence helper and after the enquiry was over, second show cause notice was served upon him with the proposal of penalty of removal from service as the charge levelled against him in the two charge-memos had been established. Thereafter, he challenged the charge-sheets, the enquiry reports and the show cause notice before the Calcutta High Court in writ petition which was dismissed, His appeal against that order also stood dismissed. Thereafter, he preferred statutory appeal which was considered though the time for making such appeal was over.
But the appellate authority confirmed the order of the disciplinary authority. The respondents have, therefore, prayed for dismissal of the case.
10. We have heard the learned Counsel for both parties at some length.
No departmental records have, however, been produced before us. After conclusion of hearing, both parties have submitted written arguments.
We have considered the same.
11. The Id. Counsel for the respondents took a preliminary objection that since the applicant had already challenged the charge-sheets, the enquiry reports and the show cause notices earlier before the Calcutta High Court by filing a writ petition, which was dismissed, he cannot again challenge the same in this proceeding as it will be barred by the principle of resjudicata. The Id. Counsel for the applicant has, however, contended that before the High Court, the penalty order was not challenged and the appellate order was also not passed at that time. Therefore, principle of resjudicata does not apply.
12. We have considered this point. We find that the applicant has challenged the final order as also the appellate order in this writ petition including of course the charge-memos, the enquiry report and the show cause notice. Since the appellate order was not considered in the earlier writ petition, this application is not barred by resjudicata as this has given a fresh cause of action. But we find that so far as the charge-sheets, the enquiry reports and the show cause notices, are concerned, these were already adjudicated by the High Court and the application of the applicant was dismissed both by the learned Single Judge as also by the appeal Court. Therefore, it is not open for this Tribunal to reopen those issues in this proceeding. Here, we will confine ourselves only to the appellate order and the final penalty order and the revision order.
13. It is argued by the Mr. M.S. Banerjee, learned Counsel for the applicant the entire proceeding was conducted arbitrarily and illegally and no reasonable opportunity was afforded to the applicant to defend his case effectively. He was not given the copies of vital documents inspite of repeated request, vital witnesses were not examined and that the entire proceedings were initiated to harass the applicant as he raised some pertinent question regarding taking possession of the key of the laboratory in question. Mr. Banerjee has also questioned the competence of the disciplinary authority as also the appellate authority to initiate proceeding against the applicant. He has also raised the point that enquiry officer was changed and fresh enquiry was held in respect of both the charge-sheet and even in the fresh enquiry, enquiry officer was changed without assigning any reason.
14. Mr. R.N. Das, learned Counsel for the respondents has opposed the allegations made by the applicant and stated that due opportunity was given to the applicant but he adopted dilatory tactics to delay the proceeding. In the first enquiry he did not participate and took several pleas. The enquiry was held ex pane. Thereafter, at the request of the applicant and to give him full opportunity, fresh enquiry was held. On both occasions, the applicant was found guilty of the charge.
He has stated that there was no irregularity in the disciplinary order or appellate order. He submitted that the punishment order was passed by one Mr. T.K. Sen, Sr. Accounts Officer, who was holding a senior scale post and also held the ex-officio post of Executive Officer. The appellate order was passed by a Jr. Administrative Grade officer while the reviewing order was passed by the Sr. Administrative grade officer.
There was, therefore, no illegality. It is further stated every opportunity was given to the applicant and a certificate to that effect was also given by his defence assistant.
15. Mr. Das has also relied on certain decisions of the Hon'ble Supreme Court to contend that this Tribunal is not competent to re-appreciate evidence or give an alternative finding other than that was given by the disciplinary authority. He contended that since there was no procedural irregularity or that no principles of natural justice was violated, the application has to be dismissed.
16. We have given our anxious consideration to the facts of the case, the arguments advanced by both parties and the documents available on record. As already pointed out no departmental record has been produced before us. We find that after the appeal Court decision dt. 4.6.79, the applicant preferred an appeal on 10.4.80. The appellate authority i.e.
the Sr. D.P. Manager/Executive Officer (School) by his order dt.
17.6.80 he disposed of the same with the following order:- "Your above representation has been carefully examined and is dealt with by the undersigned in terms of Rule 19 of the RS (DA) Rules, 1968 read with the schedule referred to therein.
You acknowledged on 18.5.73 the receipt of the order of removal from service bearing No. GMA/School/P/28 signed by the disciplinary authority on 10.5.73 and accordingly in terms of Rule 20 of the RS (DA) Rules, you have failed to prefer appeal against the said order within the stipulated period of forty five days from the date of receipt of the same. However, as a special consideration, I have dealt your above appeal.
I have carefully gone through the report of the enquiry authorities and accept the findings therein.
I, therefore, confirm the penalty imposed by the disciplinary authority under No. GMA/School/P/285 dt. 10.5.73." 17. Be it noted that in his appeal, the applicant had taken various points regarding the conduct of the enquiry. But the appellate authority has neither dealt with those points nor gave its finding thereon. No doubt the appellate order is a very cryptic one and does not conform to Rule 22 of the RS (DA) Rules, where it has been clearly laid down as to how the appellate authority has to decide an appeal.
There are three ingredients which an appellate authority has to consider while deciding an appeal. Those are (a) whether the procedure laid down in the rules has been complied with, and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice, (b) whether the findings of the disciplinary authority are warranted by the evidence on the record, and (c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe. We must say that this impugned appellate order cannot be sustained as it failed to comply with the aforesaid statutory provisions in the rules. It is clearly a cryptic order showing non-application of mind, and hence it is liable to be quashed.
18. Moreover, the penalty order dt. 11.5.73 passed by the disciplinary order was also not according to rules. It was mentioned therein that the applicant did not make any representation to the show cause notice.
Still the disciplinary authority had not given his findings on the enquiry report, the evidence on record etc. It has simply stated that "After having applied my mind to the facts and records of the case, I have come to the conclusion that you should be removed from service as a disciplinary measure. In pursuance of Rule 10(5)(ii)(b) of RS (DA) Rules, I hereby order that you are removed from service with effect from 15.5.73 (FN)." 19. It is specifically provided in Rule 10 of RS (DA) Rules that the disciplinary authority has to record its own findings on all or any of the findings of the inquiring authority having regard to the evidence on record. In this context, Rly. Board's order dt. 28.8.63 and 30.9.63 (available at page 176 of M.L. Jand's RS (DA) Rules, 1968, 6th Edn.) may be referred to. It is provided therein that the "Board desire that the orders imposing the penalties of dismissal, removal or compulsory retirement should invariably indicate the specific charges that stand substantiated, based on which any of these penalties is imposed." As we have already indicated, the disciplinary order by which the applicant has been removed from service does not indicate the specific charge that stands substantiated and based on which the penalty of removal was passed. Therefore, the order passed by the disciplinary authority stands vitiated by not following the statutory rules, specially when the applicant did not make any representation to the show cause notice.
It may be noted that the departmental file has not been produced before us. Thereafter, we are unable to verify whether either the disciplinary authority or the appellate authority had recorded their respective findings at least in the file.
20. That being the position, it is quite clear that neither the disciplinary authority nor the appellate authority has passed the impugned orders after following the statutory rules and as such the said orders have to be quashed.
21. Now we come to the revision or review order dt. 4.2.81. This order is also not a speaking order. It is stated that as a measure of mercy, the matter has been re-examined but it was found that dereliction of duty of the applicant had been properly established and the order already passed by the disciplinary authority and duly upheld by the appellate authority should not be changed. The revisional authority has failed to notice the infirmities in the disciplinary as well as appellate orders. Since we have already held that the orders passed by the disciplinary authority or the appellate authority are unsustainable, this revision or review order also cannot be allowed to stand for reasons indicated above.
22. In the normal course, the matter should have been remitted back to the appropriate authorities for fresh consideration and for passing appropriate orders strictly in accordance with the rules. But in the instant case, we find that the applicant was charge-sheeted long 30 years back and he was removed from service in 1973. Thereafter, the appeal was decided in 1980. Meanwhile, the applicant has already attained the age of superannuation and he has been suffering for all these years. Relevant records may not be available as none has been produced before us. In such circumstances, we are of the opinion that no useful purpose will be served to remit the case back to the appropriate authorities.
23. For the reasons stated above and considering all aspects of the case and also for the end of justice, we dispose of this TA by passing the following orders :- (a) The impugned penalty order dt. 11.5.73, the appellate order dt.
17.6.80 and the review/revision order dt. 4.2.81 be hereby quashed.
(b) The applicant shall be deemed to be in service with effect from the date of removal i.e. 15.5.73 till he attained the age of superannuation.
(c) All consequential pay benefits including pension etc. be paid to the applicant within four months from the date of communication of this order.