AMULYA KUMAR SIKDAR Vs. L M BAKSHI

JUDGEMENT

(1.) The facts in this case are shortly as follows: In or about March, 1949, the petitioner was appointed as a State Transport driver under the Directorate of Transportation, State of West Bengal, having been appointed by Mr. H. D. Choudhury, Special Officer, Home (Transport) Department. On or about 22-1-1954 the petitioner was plying State bus No. WBS 938. White so driving, there was an accident at the junction of Harrison Road and Strand Road. There was a collision between the bus and a lorry and the State bus suffered certain damages. On the same day a first information report was lodged at the Burrabazar Police Station and the petitioner gave an explanation. According to him, the explanation was not properly recorded. On 16-2-1954 an order of suspension was passed against the petitioner. On 17-2-1954 a charge-sheet was framed which was served on the petitioner on 19-2-1954. The gravamen of the charge was that there was an accident following which the State bus, which was being driven by the petitioner, was damaged heavily. It was stated that the report put in by the petitioner had stated that brakes had failed but this was not accepted. The charge was that the petitioner was driving the vehicle rashly and negligently as a result of which the accident took place and in order to cover up his guilt, the petitioner had deliberately severed the brake hose. The charge-sheet called upon him to show cause why disciplinary action should not be taken against him. On 22-2-1954 the petitioner submitted his written explanation. The charge-sheet was issued by the opposite party No. 1, the Director-in-charge, Lake Depot, Government of West Bengal. On 23rd/24th February, 1954 a letter was issued by the Director-ill-charge stating that the case will be heard on 9-3-1954 and the petitioner was directed to be present with his witnesses. On 9-3-1954 the case was heard, not by the Director-in-charge, but by Nirmal Kumar Bhattacharjee, Superintendent, Lake Depot. The next two hearings on 25-3-1954 and 30-3-1954 respectively, took place before the opposite party No. 1 but the last hearing, that is, on the 4-5-1954, when further evidence was taken was again heard by the said Nirmal Kumar Bhattacharjee. It may be mentioned that three witnesses, namely, S. D. Ganguly, C. Mondal and M. R. Koley, gave evidence before Nirmal Kumar Bhattacharjee. On the 25-5-1954, the Director-in-charge, that is to say, the opposite party No. 1, passed an order which order contains his finding in respect of the enquiry. A copy thereof is annexed to the counter-affidavit filed on behalf of the opposite parties Nos. 1 to 4. By his order the Director-in-charge found the petitioner guilty of the charge preferred against him and referred to the evidence of C. Mondal and M. R, Koley and discussed them. By the same order, the petitioner was asked to show cause in writing within 48 hours why he should not be discharged from service. On 28-5-1954 an order was made discharging him from service. This order of discharge was communicated to the petitioner by a letter dated 31-5-1954. In this letter, a copy whereof is annexure "c" to the counter-affidavit, the petitioner was informed that his reply to the charge-sheet had been found totally unsatisfactory and "as the charge has been proved, you are discharged from 'service in this Directorate with effect from 28-5-1954." If this is an order of discharge, as it appears to be, then indeed it is an order of discharge with retrospective effect and a point has been taken, namely, that the order is bad because there cannot be an order of dismissal with retrospective effect. It has, however, been stated in the counter-affidavit that the actual order of discharge was made on 28-5-1954, and therefore there was no question of it being retrospective.

(2.) The petitioner preferred an appeal which appeal was dismissed on 15-9-1954. He has now come up to this Court & a Rule was issued on 15-3-1955 and in this application the order of dismissal is challenged. Mr. Das Gupta appearing on behalf of the petitioner has taken three grounds. The first ground is that the appointing authority of the petitioner was the Special Officer, Home (Transport) Department, whereas the punishment was inflicted and the order of dismissal made by the opposite party No. 1 the Director-in-charge, who according to the petitioner, is an officer lower in rank than the Special Officer, Home (Transport) Department. The second ground is that the order is bad because it is retrospective in operation. The third ground is that the departmental proceeding was not conducted in accordance with the rules of natural justice inasmuch as the evidence was taken by a person other than the person deciding the case and holding the petitioner guilty of the charge preferred against him.

(3.) With regard to the first ground, the opposite parties contest the statement that the Director-in-charge is an officer lower in rank than the Special officer mentioned above. It is pointed out that the office of the Special Officer has now been abolished but that the Director-in-charge is an Officer of equal rank receiving the same pay. There is no material before me upon which I can decide this disputed question. With regard to the second ground, equally it appears to me to be a disputed question of fact. It does seem from the letter dated 31-5-1954, that the order was made by that letter. It is, however, alleged that this only conveyed the information but that the order was made on 28-5-1954. If the order itself was made on 28-5-1954, there can of course be no question of its being retrospective. On the other hand, if it was an order made On 31-5-1954, and if it was made retrospective, then the order is bad. A reference may be made to a decision of Bose J., in Abdul Hamid v. The District School Board, 24-Parganas, 61 Cal WN 880 (A), and an unreported Judgment delivered by Banerjee J., on 27-2-1958 in Satvendra Kumar Dutta v. District Board of 24-Parganas (B). Thus, the principle of law is well established that an order of dismissal cannot be made with retrospective effect. As I have pointed out, however, that the fact upon which the point of law is dependent is disputed and cannot be decided without taking evidence. I now come to the third and the last point. In my opinion, this is a point of substance. It will appear from the facts stated above that two witnesses, whose evidence have been discussed by the authority, which has found the petitioner guilty, gave their evidence not before the opposite party No. 1, but before someone else. In the counter-affidavit the excuse that has been given is that on two days the opposite party No. 1 was ill with fever and rather than inconvenience the defence witnesses, he authorised the Superintendent, Lake Depot, who is a gazetted Officer, to take the evidence. In my opinion, the fact that the Superintendent is a gazetted officer makes no difference whatsoever. The procedure adopted is not Permissible. Mr. Das Gupta has drawn my attention to certain decisions wherein it has been laid down that evidence taken before one learned Judge cannot be used by another learned judge for arriving at a decision. This is not only true in civil cases but also true in criminal cases. The first decision to which reference may be made is a decision of an appellate Bench of this Court presided over by Harries C. J. in Sarba Ranjan Bysack v. Sm. Haripriya Dassi, 53 Cal WN 569 (C). In that case, the trial commenced before the late Mr. Justice Khundkar and four witnesses were examined before him. Thereafter, unfortunately the learned Judge died and the case was continued by Ormond J., who held that he was entitled to take into account the evidence of the witnesses given before Khundkar J. This was set aside by the appellate Court and Harries C. J., held that the procedure adopted was erroneous. In the case, reference was made to Section 33 of the Evidence Act. That Section lays down that evidence given by witnesses in a Judicial proceeding or before any person authorised by law to take it, is relevant for the purpose of proving, in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case, the Court considers unreasonable. The learned Chief Justice relied on the case of Chanchal Singh v. Emperor. 50 Cal WN 201: (AIR 1946 PC 1) (D), where Lord Goddard delivering the Judgment of the Judicial Committee stated as follows: