Sukhendu Mukherjee vs State of West Bengal and Others

Kalyanmay Ganguly, J.—This application under Article 226 of the Constitution of India is directed against the resolution of the Board of Commissioners of the Panihati Municipality dated 24th June, 1981 which is Annexure ''C'' to the writ petition. The case of the petitioner in short is that on 16th March, 1981, the respondent No. 3 entrusted the petitioner to release goods from the Railway Siding at Sodepur and in compliance with that order the petitioner contacted the Goods Clerk namely Sri Kartick Som of Goods Office on the same date and enquired about the arrival of wagon carrying G.I. Pipes ex-Tatanagar ITM to Sodepur Siding. The said Kartick Som confirmed that the entire goods covered by the invoice and the railway receipt had arrived, and would be available on payment of the Entry Tax of Rs. 1,503/- and demurrage charge of Rs. 300/-. The petitioner handed over all the connected papers to the said Sri Kartick Som and at instance of Sri Som the petitioner signed the railway receipt on the reverse side and the register.

The petitioner thereafter informed the respondent No. 3 over telephone about the aforesaid incident and requested the latter to send the sum of Rs. 1,893/- for getting the goods released and delivered to the municipal custody through the municipality''s transport contractor. It is alleged in the petition that the respondent No. 3 informed the petitioner that the goods would be taken delivery of by the municipality''s lorry driver and the other employees of the municipality.

It is the further case of the petitioner that after obtaining permission form the Chairman i.e. respondent no. 3, the petitioner left for Sealdah Court to attend the civil suit in which the municipality was a party. After the work of the court was over the petitioner went back to the Sodepur Siding at or about 13.40 hrs. on the same day and came to know from one Sri Dulal Chakraborty, a Stores Clerk of the municipality, who was entrusted to the physical delivery of the materials as also from some other employee of the municipality, that the consignment of the G. I. Pipes were short to the extent of 7 bundles i.e. 315 pieces. The petitioner lodged a complaint with the Railway Administrator against such short supply and the petitioner also contacted the concerned Goods Superintendent and requested him to grant a short delivery certificate. The petitioner thereafter filed a written complaint before the Railway Authority stating the entire episode of the short delivery.

It is contended in the writ petition that the respondent no. 3 also requested the Sodepur Goods Superintendent to enquire into the matter and to take necessary action so that the municipality might have the balance quantity of 7 bundles of G.I. Pipes. A reminder was sent to the Railway Authorities including the Divisional Railway Manager, Eastern Railway by the respondent no. 3 but nothing seems to have been done pursuant to such reminder.

The respondent no. 3 by his letter dated 22nd/23rd March, 1981 intimated the petitioner that the incident mentioned above was a case of gross negligence on the part of the petitioner in the performance of his duty pursuant to which the municipality had to suffer a loss of Rs. 47,253/- being the price of 7 bundles of G.I. Pipes. The petitioner was directed either to procure the quantities of the G.I. Pipes or to desposit Rs. 47,235/- with the municipality as a price of the said 7 bundles of the G.I. Pipes. The petitioner was also placed under suspension along with the aforesaid letter which purported to be a charge-sheet.

The petitioner duly showed cause to the said charge-sheet.

It appears that a committee of enquiry was constituted comprising 3 members to investigate into the charges leveled against the petitioner, and the said committee by its recommendation dated 7th April, 1981 expressed the desire that pending finalisation of the claim case with the Railway Authorities the suspension order of the petitioner should be withdrawn immediately to enable the petitioner to resume his normal duties, by a letter dated 10th June, 1981. The petitioner was also directed by a letter dated 25th June, 1981 conveying the resolution of the Board of Commissioners dated 24th June, 1981 that the charges leveled against the petitioner have been proved and that some token punishment for his negligence would have to be made besides the recovery of the amount so lost.

An affidavit-in-opposition has been filed by the Chairman of the Municipality who was not the Chairman at the relevant time and as such the deponent of the affidavit-in-opposition is not competent to depose on the various allegations made by the petitioner in the writ petition.

It appears from the statements made both in the petition as also from the affidavit-in-opposition that no proper enquiry was at all held into the charges leveled against the petitioner, but the petitioner was persuaded to execute the Indemnity Bond to indemnify the municipality to the tune of Rs. 47,235/- in the event the municipality failed to recover damages from the Railway Authorities for the short delivery effected by the railways.

Forcing an employee to execute the bond is neither the proof of guilt of the employee nor it is tantamount of admission of the guilt. The resolution dated 24th June, 1981 which is part of Annexure ''C'' to the writ petition conclusively holds that the charges leveled against the petitioner has been proved.

Specific question were put to Sri Samiar Dutta, the learned Counsel appearing for the municipality, as to whether the municipality had instituted any claim case against the railways for such short delivery but Sri Dutta failed to enlighten the court on that score. It may be assumed from such eloquent silence on the part of the municipality that no claim case was initiated against the Railway Authorities for recovering the loss sustained by the municipality. Instead the municipality chose the easier path to recover the entire damages from the salaries of a poor employee who was defence less against the might of the municipal authorities. It is not known however as had been enumerated in the affidavit-in-opposition as to how the Enquiry Committee constituted to enquire into the charges leveled against the petitioner and found the petitioner guilty of the charges leveled against him. It is equally mysterious as to the basis on which the commissioners of the municipality found the petitioner guilty of the charges leveled against him. Even if it is assumed that the charge of negligence has been proved, which in effect, has not been proved, the enormity of the punishment meted to the petitioner is beyond all proportions to the charges leveled against the petitioner. It is not a token punishment but by the impugned order the petitioner is sought to be impoverished for his entire service life.

From nowhere it appeared as to whether a proper enquiry was at all held; as to whether there were any witnesses examined by and on behalf of the municipality; as to whether the petitioner was given an opportunity to defend himself properly and as to whether the municipality authorities took any steps against the Railways Authorities to recover the damages sustained by the municipality due to such short delivery.

In fact, the whole thing has repeated in utter travesty of justice matched only by the enormity of the punishment inflicted upon the petitioner without taking any semblence of regard to the procedure established by law.

In the circumstances this application succeeds and the rule is made absolute. Let a writ in the nature of mandamus issue quashing the resolution of the Board of Commissioners of the Municipality concerned dated 24th June, 1981.

All the amounts that have been realised from the petitioner must be refunded to him within 12 weeks from the date of communication of this order and all his excreta and other payments which had been held including the increments which would have otherwise become due on the petitioner but for the aforesaid resolution dated 24th June, 1981 be also paid to the petitioner within 12 weeks from the date of communication of this order. In the circumstances, I was inclined to award exemplary costs against the municipality for the way the municipality behaved against one of its defence less employees but I refrain from doing so and rest with only expressing my disapproval of the action taken.

There will be no order as to costs.