Tara Sadan Hattacharyya vs Corporation of Calcutta

S.S.A. Masud, J.—This is an appeal against the judgment and order of Mr. Justice J.P. Mitter discharging the rule obtained by the Appellant on an application under Article 226 of the Constitution. The facts of the case are briefly stated as follows:

The Appellant, an employee of the Corporation of Calcutta, was a permanent Coal Inspector with effect from March 1, 1944. On September 8, 1953, he remained posted at Bhadreswar Ghat, Dist. 24 Parganas. The duty of the Appellant as Coal Inspector was to take delivery of coal wagons on behalf of the Corporation of Calcutta on their arrival, at Bhadreswar sidings after being satisfied that the said wagons contained coal according to specifications and thereafter to make over charge of wagons to the boat contractors for unloading and stocking the coal under their custody in the plots of the railway yard at Bhadreswar rented by the Corporation. According to the prevailing practice the boat contractors were to load their boats with coal from the said Corporation yard after-day-break and leave for Pulta Pumping Station, after taking challans from the Appellant whose duty before issue of every challan was to see that the coal in the boat was not soaked in the water or replaced by inferior quality of coal from other yards. The boat contractors were, thereafter, to take unloading certificates from the Pulta Pumping Station for every boat of coal unloaded there and to make over the same to the Appellant. While serving in the said capacity at Bhadreswar the Appellant received a letter dated April 15, 1954, from the Controller of Stores to the effect that the Commissioner of Corporation of Calcutta had suspended him by his order dated March 19, 1954, with immediate effect. By the same letter the Appellant was also asked to show why disciplinary action should not be taken against him on the following charges:

(a) For allowing one, boat load of Corporation coal to be removed on 8;9.53 without entering the same in the challan. The boat load of coal was loss to the Corporation as the boat of coal neither reached Pulta nor returned to Bhadreswar.

(b) For suppressing and not reporting to higher authorities information�s of similar thefts received by you on previous occasions as per your own admission.

(c) For the loss of other two boat loads of coal on 8.9.53 which were entered in the challan but did neither reach Pulta nor returned to Bhadreswar.

The Appellant duly showed cause by two letters dated April 30, 1954 and May 26, 1954. On June 3, 1954, the Deputy Commissioner No. 11, the Respondent No. 4, held an enquiry relating to the said charges in the presence of the Appellant and the evidence was taken. Thereafter the Deputy Commissioner No. II submitted his report dated November 29, 1954, to the Commissioner holding him guilty of the said charges and recommending his dismissal. The Commissioner after perusal of the relevant records approved the recommendations made by the Deputy Commissioner and passed an order dated December 17, 1954, dismissing the Appellant. On January 7, 1954, the Appellant preferred an appeal to the Mayor against the said order of dismissal. The Appellant appeared before the Mayor on August 16, 1955, in connection with this appeal and by a letter dated September 12/13, 1955, addressed by the said Controller of Stores, the Appellant was informed that his appeal to the Mayor failed. Thereafter on or about September 4, 1956, the Appellant moved the present application under Article 220 before this Hon''ble Court. The said application was heard by Mitter, J. who dismissed the same.

The learned Advocate for the Appellant has contended that the said order of suspension and/or the order of dismissal dated December 17, 1954, are void and ineffective and should be quashed on the following grounds:

(a) That there being no proof of misconduct and of negligence on the part of the Appellant, the order of suspension and of dismissal is bad in law.

(b) The order of dismissal is bad inasmuch as it has been passed by the Commissioner of the Corporation of Calcutta who is not the punishing authority. In any event, the order of dismissal was bad inasmuch as it was passed by the Commissioner without enquiry or investigation by the Commissioner.

(c) The Appellant was not served with the copy of the report of the Enquiry Officer before the Commissioner or the Mayor inspite of repeated requests and as such, he was denied with the principles of natural justice.

(d) The order of suspension or dismissal was passed mala fide.

Before we examine these contentions on behalf of the Appellant it may be stated that the aforesaid four contentions have not been specifically taken in any of the grounds in the Memorandum of Appeal. The learned Advocate for the Appellant has, however, referred us to grounds (a), (b), (d), (e), (1) and (p) in the petition within the limits of which he wanted to make his submission. Keeping these facts in view the contentions on behalf of the Appellant may now be discussed.

The first contention on behalf of the Appellant that there is no evidence by which the misconduct or the negligence of the Appellant has been proved cannot be accepted. It cannot be denied that if there is no evidence for holding a man guilty of misconduct, his order of dismissal can be struck down in an application under Article 226 of the Constitution. But at the same time it should be remembered that the Writ Court, not being a Court of Appeal, cannot go into the sufficiency of the evidence or the probative value of evidence unless the impugned order is based upon impossible or absurd conclusions or inferences from facts. In the instant case a responsible officer, who happens to be a Deputy Commissioner, has held the enquiry and we find that there were sufficient materials before him to come to the conclusion that the Appellant was guilty, at least, of the charges Nos. 1 and 3, framed against him. The Appellant was the person in sole charge of the Corporation''s coal affairs at Bhadraswar Ghat. According to his own statement, diversions of the Corporation''s coal were taking place for some time past and large quantities of coal belonging to the Corporation of Calcutta and required for Pulta Pumping Station were being diverted in unauthorised manner to the private brick-fields or contractors. On the date of occurrence, i.e. on September 8, 1953, the Appellant got sufficient opportunity to detect the culprits but in spite of his alleged vigilant attempts he failed to prevent the loss of coal belonging to the Corporation. His own explanation in respect of the first boat which left Bhadreswar Ghat on September 8, 1953, without any challan is in our opinion, unsatisfactory. In para. 5 of his own petition he has stated:

That on the September, 8, 1953, one boat left Bhadreswar Ghat at about 5-15 A.M. without taking challan from your Petitioner and six other boats left duly between 6 and 6-40 A.M. with challans from your Petitioner. On getting an information from a boat manjhi that one boat had left without challan and some boats would be diverted elsewhere that day your Petitioner went out in quest of the boat to be diverted accompanied by a person named, Etwar Chand, whom he accidentally met on the way.

This statement gives an indication that the first boat had left either during his absence or without approaching the Appellant for the necessary challan. But in his signed statement before the Coal Inspector on September 7, 1953, he has stated:

He then went to the depot and learnt in the meantime that single manjhi''s boat was to be sent to the brick-field. He tried to verify from the manjhi the destination of the boat but could not succeed and learnt from him that it may be known from other manjhis. Then he decided to pursue the matter for which he did not furnish slip for one boat and did not also include in the daily challan.

Similar statements were also made by the Appellant in his signed statement to the Controller of Stores on September 12, 1953, which categorically records the fact that the first boat not only had left Bhadreswar Ghat during his presence but also he voluntarily allowed the boat to go without challan or token. He wanted to explain the fact by taking up the plea that his intention to allow the first boat to go without challan was without any dishonest intention. According to him his object was not to raise suspicion amongst the boat contractors at that stage because he wanted to trap all the other boats which planned to carry Corporation coal to the brick-fields the same day. Assuming that was his intention, it is surprising that he did not take anybody into his confidence about this particular trap. He could have sent a secret message to the Coal Supervisor or Coal Inspector, Pulta Pumping Station, Or the Police Station. But he did nothing of this kind. According to him he accidentally met Etwar Chand with whom he was supposed to have discussion about his trap. This accidental meeting of Etwar Chand at about 6 o''clock in the morning and his alleged dependence on Etwar Chand are not convincing enough. There is no evidence that the Appellant took any active step to trap the boat contractors, between 5 A.M. when Manick Babu, the boat contractor''s man, approached him directly and the time when he met Etwar Chand, being an ex-contractor, was out to discredit the Railway''s new contractor and the Enquiry Officer was right in coming to the conclusion that Etwar Chand wanted to confront the Appellant by giving positive proof of the new contractor''s plan to divert coal belonging to the Corporation, It is quite legitimate to hold that if the Appellant would not have met him the conspiracy would not have seen the light of the day. It is also significant that the boat contractor''s man directly approached him for this illegal act and this contact with the Appellant took place at 5 o''clock in the morning on the day of occurrence at the Appellant''s house. The reasons for Manick Babu''s direct approach to him are also far from, satisfactory and have rightly been rejected by the Enquiry Officer. Admittedly, the first boat was allowed to go without any challan and the Corporation coal carried in the said boat did not teach the Pulta Pumping Station and thus caused loss to the Corporation. Similarly, with respect to the charge No. 3 there is a clear finding by the Enquiry Officer that the other two boats with Corporation coal also left the ghat without challan on the day of the incident with full knowledge and cognizance of the Appellant. There was sufficient evidence that three boats which had left Bhadreswar Ghat with Corporation coal on September 8, 1958, were subsequently found near the brick-field of Sri D.N. Singh. Admittedly, two boats left Bhadreswar Ghat on September 8, 1953, in his presence. There is no evidence that these two boats reached Pulta Pumping Station or returned to Bhadreswar Ghat after delivery of the coal at the said Pumping Station. Apart from the Appellant''s own statement that these two boats were entered in the challan, there is nothing to corroborate his story. It appears that when he met Etwar Chand in the morning of the day of occurrence some boats of the contractors which were to carry Corporation coal to the Pulta Pumping Station had not left the ghat. Accordingly, as Etwar Chand came to know about the conspiracy of the boat contractors the Appellant must have included these two boats which had earlier left the ghat without challan in the challan of boats that were going to leave the ghat with, Corporation coal to Pulta Pumping Station on the day of the incident. There is nothing to show that challans were actually handed over to the two boats which had left earlier. Accordingly it is legitimate to conclude that the alleged entry of the two boats in the daily challan must have been done unilaterally by the Appellant to show that the two boats left with challan. Further, in our opinion, whether these two boats left with or without challan, there is clear evidence that the coal stacked in these two boats belonged to the Corporation and they were delivered at the brick-fields of Sri D.N. Singh. With respect to the second charge we are not convinced that the allegations have been proved against the Appellant. The evidence of the Coal Supervisor indicates that the information�s had been given in a general and casual way by the Appellant to his superior officers. In any event, we are satisfied that the Enquiry Officer, correctly found the Appellant guilty of the other two charges, namely charge 1 and charge 3.

The learned Advocate for the Appellant has contended that the Enquiry Officer was wrong in holding the Appellant guilty on the basis of the Appellant''s admission in respect to charge No. 1. He has cited Jagadish Prosad Saxena v. State of Madhya Bharat AIR 1961 S.C. 1070, to substantiate his contention that a person should not be held guilty on the basis of his mere admission. According to him there should be sufficient evidence apart from the admission before a person is found guilty. In our opinion, this case has no application to the instant case inasmuch as the said decision involves a case of dismissal under Article 311(2) of the Constitution and the dismissed man was found guilty on his alleged admission without a formal enquiry. In the instant case a formal enquiry was held by a responsible officer of the Corporation and a number of witnesses had been examined and the conclusions were arrived at by taking into consideration all the direct and circumstantial evidence and also the admission made by the Appellant. Further, the admissions made by the Appellant are admissions in writing and relate to facts and not to a question of law and as held in Amba Lal v. Union of India AIR 1961 S.C. 264 (267) and Banarasi Das v. Kaushi Ram AIR 1963 S.C. 1164 (1169), these admissions are binding on the Appellant.

The next contention on behalf of the Appellant that the dismissal of the Appellant was not done by a competent authority is also without any substance. Admittedly, the Appellant was confirmed in the permanent post of Coal Inspector, Bhadreswar Ghat on March, 1914. Section 80 of the Calcutta Municipal Act, 1951, reads as follows:

Subject to other provisions of this Act appointments to the Corporation, establishment shall be made--

(a) by the Corporation if the maximum salary of the office is not below Rs. 250/- per month;

(b) by the Commissioner, in all other cases.

There is no dispute that the Appellant was appointed on a monthly salary of Rs. 95 and as such, the appointing authority is the Commissioner. Lest it may be said that he was appointed not under the Calcutta Municipal Act, 1951, reference may be drawn to Section 77 of the Calcutta Municipal Act, 1951, relevant provisions of which arc stated below:

Any person who immediately before the commencement of this Act was holding any post as Municipal Officer or servant under the Corporation as constituted under the Calcutta Municipal Act, 1923, shall upon such commencement be deemed to be appointed to the corresponding post under the Corporation as constituted under this Act....

Thus, it is clear, on a proper construction of Section 80 read with Section 77 of the Calcutta Municipal Act, the appointing authority of the Appellant is deemed to be the Commissioner who by his order dated December 17, 1954, has dismissed him by way of punishment. There is no statutory rule under Calcutta Municipal Act, 1951, which enjoins the Commissioner to hold the enquiry himself. Nor is there any principle of natural justice which warrants the Appellant''s contention that the Commissioner must investigate into the matter himself. The Enquiry Officer has submitted the report and the Commissioner after examination of the records of the matter dismissed the Appellant by approving the Deputy Commissioner''s recommendation. It is not incumbent upon an administrative officer, like the Commissioner, Corporation of Calcutta, to have a de novo enquiry in the presence of the Appellant or to set out detailed reasons for his decision.

The third contention of the Appellant is, namely, that the Appellant has been denied the principles of natural justice inasmuch as no copy of the report of the Enquiry Officer was supplied to him. In our opinion on the facts and circumstances of this case, it is impossible to hold that the principles of natural justice have been denied to the Appellant. Numerous witnesses were examined before the Enquiry Officer in the presence of the Appellant and all the opportunities to cross-examine them were given to the Appellant. It is true that the copy of the report of the Enquiry Officer was not available to him either at the stage when he was dismissed by the Commissioner or at the time when he preferred an appeal to the Mayor u/s 87 of the Calcutta Municipal Act, 1951. But it appears from para. 14 of the affidavit-in-opposition of Ranjit Kumar Dutt verified on March 6, 1957, that, the copy of the said report was for the first time demanded by the Appellant on February 9, 1956. The Appellant has not contradicted this fact in his affidavit-in-reply. Excepting this letter dated February 9, 1956, written by the Appellant''s lawyer, Sri Jhannabi Gharan Das Gupta, there is no satisfactory evidence on which we can come to the conclusion that the copy of the report was asked for earlier. The alleged grievance of the Appellant ex post facto cannot be accepted inasmuch as the order of dismissal was made on December 17, 1954 and the appeal before the Mayor was disposed of on August 30, 1955. Further, it appears from the record that the appeal was preferred on January 7, 1955 and the date fixed for the hearing of the appeal was July 10, 1955, when the Mayor confirmed the order of the Commissioner dated December 17, 1954. On a further representation by the Appellant to the Mayor on July 20, 1955, the Mayor by his order dated July 20, 1955, called back the file and allowed the Appellant a personal hearing which took place on August 16, 1955. Even at this stage the Appellant never asked for a copy of the report of the Enquiry Officer. Thus, there is no substance in the contention that the Appellant felt difficulty or embarrassment in making his representation before the authorities for not getting the copy of the report.

The learned Advocate did not press the 4th ground, namely, that the order of suspension or dismissal was passed mala fide, but he raised another point, namely, that the Mayor being the appellate authority u/s 87 of the Calcutta Municipal Act, 1951, should have applied his mind and stated reasons in his order of dismissal dated December 17, 1954. According to him the Mayor, as quasi-judicial tribunal should have disposed of the appeal on objective grounds. He has referred us to Shivji Nathubhai Vs. Union of India (UOI) and Others, and Board of High School and Intermediate Education, U.P., Allahabad Vs. Ghanshyam Das Gupta and Others, , in support of his proposition that the Mayor as the appellate authority has not acted judicially in not deciding the appeal objectively. In our opinion, these two decisions had not laid down the proposition that a quasi-judicial tribunal in disposing of the pending matter must state objective grounds irrespective of any statutory provisions. In Shivji Nathubai v. Union of India Supra (p. 609) Justice Wanchoo has stated:

It must therefore be held that on the Rules and the Act, as they stood at the relevant lime, the Central Government was acting in a quasi-judicial capacity while deciding an application under Rule 54. As such it was incumbent upon it before coming to a decision to give a reasonable opportunity to the Appellant, who was the other party in the review application whose rights were being affected, to represent his case. Inasmuch as this was not done, the Appellant is; entitled to ask his to issue a writ in the nature of certiorari quashing the Order of 28.1.1954, passed by the Central Government.

In that case under Rule 54 of the Central Government under Mines and Minerals (Development) Act, 1948, a reasonable opportunity should have been given to the afflicted party and as that was not done the impugned order was set aside. Similarly, in the Board of High School and Intermediate Education U.P. Allahabad v. Ghanashyam Das Gupta Supra (p. 1115) Justice Wanchoo has reiterated the law in the following manner:

Though therefore there is nothing expressed one way or the other or in the Act or in the regulation casting a duty on the committee to act judicially, the manner of the disposal based as it must be on materials placed before it and the serious effects of the decision of the committee on the examinee concerned, must lead to the conclusion that the duty is cast on the committee to act judicially in this matter, particularly as it is to discharge objectively certain facts which may as a result affect the rights and career of the examinees before it can take any action in the exercise of its powers under Rule 11. We are therefore of opinion that the committee when exercises its power under Rule 11 is acting quasi-judicially and the principles of natural justice require that the other parties (namely, the examinee in this) must be heard will apply to the proceedings before the Committee.

This was a case where no opportunity was given to the examinees, to give an explanation and present their case before the examination committee under a statutory rule of U.P. Intermediate Education Act, 1921. In the instant case, not only the written explanations given by the Appellant were considered by the Mayor but also a personal hearing was given to the Appellant by him and there was no allegations that any statutory rule under the Calcutta Municipal Act had not been complied with. In, any event, the Mayor in his order dated August 30, 1955, has stated:

I have given Sri Bhattacharyya a hearing on 16.6.55 as prayed for by him. In view of the detailed report of D.C. II it appears to me to be quite cogent. I do not think the case requires any interference by the Mayor. Re-examination, therefore, fails.

Thus, it cannot be said that the Mayor acted arbitrarily in disposing of the appeal by not giving any reasons whatsoever.

For the reasons stated above, the appeal is dismissed and there will be no order for costs.

Sinha, J.

I agree.