TRIPURA CHARAN CHATTERJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) IN the instant rule the order of compulsory, retirement of the petitioner made by the government of West Bengal, Irrigatan and Waterways Department, dated 20th of September, 1976, being annexure 'a' to the supplementary affidavit of the petitioner, is under challenge. The petitioner also prays for a writ in the nature of certiorari for quashing the chargesheet issued against the petitioner, the inquiry report made on the basis of such cha-rgesheet and the second show-cause notice issued on the basis of the said chargesheet and the finding of the inquiring officer. The short facts of the case is that the petitioner joined the: then Government of Bengal as Assistant: engineer sometime in June 1946 and in 1959 the petitioner was promoted to the post of Executive Engineer in the Irrigation and Waterways Department of the Government of West Bengal. On 24th of October, 1970, a chargesheet was issued to the petitioner on the following charges : -Charge No. 1 that Shri Chaptered dishonestly called for tenders by issuing tender notice No. 8 of 1967-68, dated the 4th July, 1967 for Annual Repair Works to Desh Khal during 1967-68 and had appointed Sarvasri lakshman Chandra Bunyan, Contractor, for digging 2 lac. ft. of earth in the said Khal falling within Salehpur Mouza and Manikpat mouza at Rs. 5. 221. 25p. and H. P. Goswami to dig similar quantity of earth in the said Desh Khal falling within the Dongol Mouza for a like amount of money without any sanction, authority or order of the government and without any fund having been "allotted for the purpose, knowing fully well that re-excavation work in the said Khal had already been undertaken and was being executed by the Agri-Irrigation wing, Central Division, Burdwan under the Agriculture and Community Development Department ; charge No. 2 that Shri Chatterjee dishonestly passed the bill for rs. 8,9221- submitted on the 29th March, 1968 for re-excavation work at Manikpat and dongol Mouzas by Shri Lakshman chandra Bhuiyan on false and fabricated government records and reports prepared to his knowledge in collusion with Shri Anil Kumar ghatak, Temporary Sub-Assistant engineer, Irrigation and Waterways directorate, who is at present. holding charge of the Sibgunge Section under, the Hooghly Irrigation Division of the said Directorate, and Sri ashutosh Mukherjee, permanent assistant Engineer and Officiating executive Engineer, Irrigation and waterways Directorate, Government of. West Bengal, now holding charge of the Berhampore Irrigation division and got it paid to Shri bunyan, although he knew at all relevant times that no earthwork was done by contractor Lakshwan chandra Bhuyanin the Desh Khal at Manikpat Mouza in the same way as he knew that Shri Bhuiyan had no authority to do any earthwork at dongol Mouza which was allotted by him to contractor, Sri H. P. Goswami, the letter of cancellation of shri Go swamis contract having been issued from his office as late as 30-3-69 (vide Memo No. 1079 (1)to the Assistant Engineer, Arambagh Irrigation Sub-Division, charge No. 3. That Shri Chatterjee in combination with the said Shri Ashuitcsh mukherjee, Ex-Assistant Engineer, and Shri Lakshman Chandra Bhuiya, Contractor, dishonestly misappropriated public money to the tune of is. 89221 - as between himself and his associates hereinfore mentioned, which. act on his part was improper and unbecoming of his position as an Executive Engineer and derogatory to the prestige of the Government;.

(2.) IT appears that on the basis of such charge-sheet, an inquiry proceeding was initiated against the petitioner. It further transpires that along with the petitioner, two other Government officers were also charge-sheeted for various lapses made by them and the said officers were Sihri Ashutosh Mukherjee, assistant Engineer, Irrigation, and Waterways Department and Shri Anil Kumar ghatak, Section Officer in the said Irrigation and Waterways Department in the Arambag Sub-Division. It also appears that Shri J. C. Chakraborty was appointed as an Inquiring Officer to inquire into the charge-sheets leveled against the petitioner and the said two other officers. It will appear from the inquiry report that the departmental inquiry against the petitioner Shri Tripxira charan Chatterjee who was then Executive Engineer, Irrigation and Waterways directorate, Government of West Bengal, had been held analogously with the inquiries directed against the said Shri ashutosh Mukherjee, Assistant Engirteer and Shri Anil Kumar Ghatak, Sub assistant Engineer. It further transpires from the inquiry report that at the desire of the said officers and for the convenience of the parties, the departmental inquiry had been held analogously in respect of all the said three officers. A number of witnesses. were examined in the said inquiry proceeding and it appears from the Inquiry report that the statements of the said two other officers were, also taken into consideration by the Inquiring Officer and in his inquiry report the said officer found that all the said charges had been proved. On the basis of. the said inquiry report, a show cause notice was issued to the petitioner, inter alia, stating therein that the findings of; the Inquiring Officer appear to be just and reasonable and in the said show-cause memo the petitioner was asked to show cause why he should not be dismissed from service. The petitioner thereafter showed a very long cause, inter alia, stating therein that the said inquiry report was incorrect in material particulars and the Inquiring Officer was absolutely biased and proceeded on mere surmise and conjecture and basic facts required to be proved by the department concerned to substantiate the charges had not been proved at all but nonetheless the petitioner was held guilty of all the said charges. In the second show cause notice, the petitioner specifically stated that he was completely innocent and he had no knowledge whatsoever that the excavation of the khal in question was not to be done by his department but some other department of the Government was entrusted to do the said job. In the, said long representation showing cause, the petitioner pointed out various irregularities committed by the Inquiring officer and submitted that under such circumstances the inquiry report should not be accepted at all and the petitioner should be exonerated from all the the charges levelled against him unjustly and without any reasonable basis. It however, appears that the Disciplinary authority ultimately did not pass an order of dismissal against the petitioner but on the basis of the recommendation made by the Public Service Commission of the State passed the impugned order of compulsory retirement of the petitioner from service and as aforesaid, in the instant Rule the said, order of compulsory retirement is under challenge.

(3.) MR. Saktinath Mukherjee, the learned Counsel appearing for the petitioner contended that it would be quite apparent and evident from the inquiry report that a joint and common trial was held in respect of the petitioner along with the said two other Government officers. But such joint trial was completely without jurisdiction. Mr. Mukherjee contended that the disciplinary proceeding was initiated under the Civil Services (Classification, Control and Appeal) Rules, 1930 and there was no provision under the said Civil services (Classification, Control and appeal) Rules, 1930 for such joint or common arid analogous trial and as such, the entire proceeding before the Inquiring Officer was without jurisdiction and no action was permissible, on the basis of such inquiry report. Mr. Mukherjee contended that the chargesheet, annexure 'd' to the writ petition refers to the old rules and as aforesaid there was no provision for joint trial in the said Civil services Classification, Control and appeal Rules 1930. Mr. Mukherjee next contended that during the continuance of the departmental proceeding, the west Bengal Civil Services (Classification, Control and Appeal) Rules 1971 came into force with, effect from 1st of may, 1971 and the departmental proceeding against the petitioner continued upto 10th of November, 1971. Mr. Mukherjee submitted that in view of the provisions of Rule 9, particularly, the proviso to the said rule read with 31 rule 25 (1) including proviso to clause (B) of the West Bengal Civil Services classification, Control and Appeal rules 1971, the said 1971 Rules will apply to the departmental proceeding pending at the commencement of the said Civil Services (Classification, Control and Appeal) Rules 1971 and Mr. Mukherjee fairly conceded that under such circumstances it was quite open to the respondents to obtain sanction either from the Governor or from any other authority referred to in the proviso to sule 9 of the said Classification, Control and Appeal Rules 1971 for common proceeding against the petitioner along with other delinquent officers. Mr. Mukherjee contended that admittedly in the instant case no such permission or sanction was obtained either from the governor or from the prescribed authority for a common trial of the petitioner along with the said two other delinquent officers and as such, the inquiry proceeding was vitiated. Mr. Mukherjee further contended that it will appear from the inquiry report itself that at the desire of the petitioner and other, delinquent officers and for the convenience of the parties the inquiry proceeding was held analogously so far as the petitioner and the said two other delinquent officers were concerned. Mr. Mukherjee contended that there cannot be estoppel against the Statute and even assuming that the petitioner agreed for such analogous trial there was no occasion on the part of the Inquiring Officer to proceed with a joint trial or a common trial without the sanction obtained from the Governor or any other authority referred to in the 1971 rules. Mr. Mukherjee further contended that on the face of the report of the Inquiring officer it appears that the petitioner at the most desired for an analogous trial but the joint and or common trial was rot desired by the petitioner. Mr. Mukherjee contended that the jurisdiction of the Inquiring Officer in a departmental proceeding depended on the provisions of the said Classification), control and Appeal Rules, 1971 and no jurisdiction in contravention of the said Rules can be conferred on the inquiring Officer by any consent of the parties. For this contention, Mr. Mukharjee referred to the decision made in the case of. Union of India vs. Prem chand, reported in 1973 (2) Services law Report 344. In the said decision rule 1710 of the discipline and Appeal rules for the Railway servant was under consideration and it was held in the said decision that there was inherent lack of jurisdiction in the joint Board of Inquiry and no amount of acquisance or consent of the parties can confer. Jurisdiction on it which such Board of inquiry did not possess. The Rajasthan high Court further held in the said decision that in such circumstances, the participation of the plaintiff in the inquiry will not preclude the plaintiff from challenging the jurisdiction of the Board of Inquiry.