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A.K. Banerjee Vs. Deputy Secretary to the Government of India and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 46(W) of 1966
Judge
Reported in[1971]79ITR707(Cal)
ActsCentral Civil Services (Classification, Control and Appeal) Rules, 1957 - Rules 13, 13(10), 15(10), 16(9) and 29(2); ;Central Civil Services (Conduct) Rules, 1955 - Rules 14, 15(2) and 15(3)
AppellantA.K. Banerjee
RespondentDeputy Secretary to the Government of India and ors.
Appellant AdvocateNani Coomar Chakrabartti, ;Shibendu Sengupta, ;Jogendra Nath Halder and ;Kanika Banerjee, Advs.
Respondent AdvocateBalai Lal Pal and ;Nanda Lal Pal, Advs.
Cases ReferredA.K. Kraipak v. Union of India
Excerpt:
- k.l. roy, j.1. this is an application under article 226 of the constitution challenging the validity of a notice to show cause why the penalty of removal from service should not be imposed on the petitioner and also of a farther order oi punishment under rule 13(iv) of the central civil services (classification, controrand appeal) rules, 1957 (hereinafter referred to as ' the rules '), with reversion of the petitioner to the next lower grade. the facts relating to the application are as follows i2. the petitioner entered service in the income-tax department on the 3rd november, 1930, as a lower division clerk and thereafter by gradual promotion was ultimately promoted to the post of income-tax officer, class i. on the 1st april, 1959. in june, 1961, the petitioner was posted as income......
Judgment:

K.L. Roy, J.

1. This is an application under Article 226 of the Constitution challenging the validity of a notice to show cause why the penalty of removal from service should not be imposed on the petitioner and also of a farther order oi punishment under Rule 13(iv) of the Central Civil Services (Classification, Controrand Appeal) Rules, 1957 (hereinafter referred to as ' the Rules '), with reversion of the petitioner to the next lower grade. The facts relating to the application are as follows i

2. The petitioner entered service in the income-tax department on the 3rd November, 1930, as a lower division clerk and thereafter by gradual promotion was ultimately promoted to the post of Income-tax Officer, class I. on the 1st April, 1959. In June, 1961, the petitioner was posted as Income. tax Officer, ' B ' Ward, District 24-Parganas, and was directed to 'perform the functions of an Income-tax Officer in respect of all persons or classes of persons who have not been hitherto assessed or to whom no notice 'inter section 22(2) has been issued or in respect of whom no proceedings under the Income-tax Act have been started and whose principal place of business or residence was within the District of 24-Parganas. By an order dated the 21st August, 1962, in exercise of the powers conferred by Rule 12(1) of the aforesaid Rules the President placed the petitioner under suspension with immediate effect. The said order was signed by the Deputy Secretary to the Government of India, Ministry of Finance (Department of Revenue) who is respondent No. 1 to this application. By a memorandum dated 2nd January, 1963, the respondent No. 1 informed the petitioner that it was proposed to hold an enquiry against him under Rule 15 of the said Rules. The allegations on the basis of which the enquiry was proposed to be held were set out in a statement enclosed with the said memorandum and the petitioner was informed of the procedure for taking inspection and obtaining copies of the relevant documents and also for the assistance of another Government servant for conducting his defence and was required to submit the written statement of his defence by the 31st January, 1963. Along with the said memorandum a charge sheet for the following three charges was enclosed, namely :

(1) that the petitioner while functioning as Income-tax Officer did not handle the assessment proceedings in a number of cases, particularly those mentioned in the statement of allegations, with ordinary care and efficiency, showed continued and deliberate negligence, carelessness and lack of integrity and devotion to duty and thus contravened Rule 3 of the aforesaid rules;

(2) that the petitioner while functioning as Income-tax Officer during the period between December, 1959, and March, 1962, indirectly engaged himself in business conducted in the name of his wife, Smt. Suniti Rani Banerjee, under the style ' Tatagahr ' at 115, Ashutosh Mukherjee Road, Calcutta, without previous sanction of his departmental authority and thereby contravening Rule 12 of the said rules;

(3) that the petitioner while functioning as Income-tax Officer during the period between April, 1957, and December, 1961:

(i) Required a Vauxhall Motor Car No. WBC 7274 for Rs. 1,700 on the 2nd April, 1957, without the previous sanction of his departmental authority and, subsequently, falsely stated to the Income-tax Commissioner that the said car was purchased through a regular dealer, Messrs. Auto Cars of 53, Free School Street, Calcutta, and

(ii) effected life insurance policies for Rs. 30,000 in July, 1957, in his own name for which he had to pay annual premium of Rs. 1,203.60 without reporting such transaction to his departmental authority and thereby contravened Rule 15(2) of the said Rules.

3. The petitioner submitted his written defence denying the charges. By an order dated 5th August, 1963, the President appointed Sri M.M. Kusari, Commissioner for Departmental Enquiries, Ministry of Home Affairs, as the enquiry officer to inquire into the charges framed against the petitioner under Rule 15 of the said Rules. This order was also signed by the first respondent. By a further order dated the 4th September, 1963, the President nominated Sri Nenumal, Inspector of Police, Central Bureau of Investigation, Calcutta, as the prosecuting officer before the enquiry authority. The order was also signed by the first respondent. By a letter dated the 10th September, 1963, the petitioner asked the enquiry officer for certified copies of the police report and of the depositions of the witnesses examined by the police during the course of the preliminary investigation. The enquiry officer replied to the aforesaid letter on the 3rd September, 1963, stating that the matters referred to in the petitioner's letter concerned the disciplinary authority and the petitioner was asked to take up the matter with such authority. By his letter dated the 1st October, 1963, the Commissioner of Income-tax, West Bengal, the respondent No. 2 herein, informed the petitioner that he could not have the preliminary police report as it was not relevant for the purpose of the enquiry. A copy of the list of documents on which the prosecution relied and a copy of the list of witnesses for the prosecution were, however, enclosed with the reply. The further request for permission to have the assistance of a lawyer to represent the petitioner's case before the enquiry officer was not acceded to. Thereafter, the petitioner submitted a list of witnesses and a list of documents on which he would rely during the course of the enquiry. By his letter dated the 19th October, 1963, addressed to the President and marked 'attention Shri M.G. Thomas, Undersecretary to the Government of India, Ministry of Finance ', the petitioner asked that instructions be issued to the authority concerned to enable the petitioner necessary access to and for the production of certain documents mentioned in the said letter. By a further letter dated the 8th December, 1963, addressed to the President, the petitioner asked for permission to utilise the assistance of Shri B.N. Bhattacharjee, Income-tax Officer, under the Commissioner of Income-tax, West Bengal I, a Central Government servant, during the entire course of the departmental enquiry before Shri M.M. Kusari. By his letter dated the 6th December, 1963, the Commissioner of Income-tax, West Bengal I, the respondent No. 2, replied to the petitioner's letter dated the 19th October, 1963, informing him that he might inspect certain documents referred to in his said letter while other documents could not be given inspection of as they were not relevant for the purpose of the enquiry. Thereafter, the enquiry was held on several dates and during the first three days namely, the 18th, 19th and 21st October, 1963, the assistance of Shri B.N. Bhattacharjee was not made available to the petitioner. Certain further demands were made by the petitioner for inspection of documents referred to by one Lyall, the then Inspecting Assistant Commissioner of Income-tax, Range V, the respondent No. 3, in his affidavit before the enquiry committee. It appears that the said B.N. Bhattacharjee was informed by a letter from the Income-tax Officer, Head Quarters, dated the 15th October, 1963, that he could not represent the petitioner before the enquiry officer. The fact of such refusal was recorded by the petitioner in his letter to the President dated 19th October, 1963, again marked ' attention M.G. Thomas, Under Secretary to the Government of India.' By his report dated the 11th March, 1964, the said enquiry officer held that so far as charge No. 1 was concerned the evidence did not show that the petitioner was actuated by any ulterior motive of showing undue favour to any party and/or having any personal gain. He further found that there was no doubt that the assessment cases did not receive proper care, scrutiny and attention from the petitioner but there was nothing to show the lack of integrity or deliberate and calculated negligence. By his failure to handle the assessment proceedings with proper care and efficiency which could reasonably be expected from an officer of his status, the petitioner stood guilty of lack of devotion to his duty and to that extent be had contravened the provisions of Rule 3 of the Central Civil Services (Conduct) Rules, 1955. So far as the charge No. II was concerned the officer found that it was not established. So far as the first part of the charge No. III was concerned the enquiry officer held that the petitioner had not violated the provisions of the Conduct Rules by not obtaining the previous sanction for the purchase of the car and also did not make any false statements regarding the said purchase. So far as the second part of that charge was concerned the enquiry officer found the petitioner technically guilty in not reporting the fact of his obtaining a lue insurance policy on bis own life, for Rs. 30,000 in July, 1957, and thereby contravening Rule 15(2) of the Conduct Rules but was of the opinion that such contravention was probably unintentional. In forwarding the aforesaid report of the enquiry officer, the respondent No. 1 sent a memorandum to the petitioner |Iated the 5th October, 1964, wherein it was stated that on a careful consideration of the report and in particular of the conclusions reached against the petitioner the President agreed with the findings of the enquiry officer that charges Nos. I and III(ii) were proved. The President had, therefore, provisionally come to the conclusion that Shri Banerjee was not a fit person to be retained in service and so it was proposed to impose on him the penalty of removal from service. The petitioner was given an opportunity of making representations against the penalty proposed which representations would be considered by the President. By his letter dated the 13th November, 1964, the petitioner showed cause to the President against the proposed imposition of penalty. The said letter was, thereafter, referred to the Union Public Service Commission by the President which after carefully considering the report of the enquiring officer, inter alia, agreed with his findings in respect of charges I, II and III(i) and so far as charge No. III(ii) was concerned the Commission held the petitioner guilty of contravention of Rule 15(2) of the Conduct Rules. In the light of its above findings the Commission recommended the penalty of reduction to the next lower grade for an indefinite period to be imposed on the petitioner. By an order dated the 30th August, 1965, made by and on behalf of the President after recording that the President had considered the report of the enquiry officer and the advice of the Union Public Service Commission and agreed with the same, it was ordered that the suspension of Sri Banerjee be removed and that he be reinstated from the date he resumed his duty. The President further ordered that Sbri Banerjee be punished under Rule 13(iv) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. with reversion to the next lower grade, i.e., from Income-tax Officer, class I, to Income-tax Officer, class II, for an indefinite period and that for the period of suspension Shri Banerjee would be allowed by way of pay and allowances only subsistence allowances already drawn by him. The petitioner resumed his duties on the 4th September, 1965, and continued as an Income-tax Officer, class II. This application was made and the rule obtained on the 18th January, 1966, after demand for justice had been made by letter dated the 20th December, 1965.

4. The affidavit showing cause on behalf of the respondents Nos. 2, 3 and 5 has been affirmed by one D'Souza, the Inspecting Assistant Commissioner, Range VI. While admitting the statements in the petition regarding the charges, the appointment of the enquiry officer and the proceedings for enquiry, the deponent states that inspection of the police report asked for was refused as it was not relevant for the purpose of the enquiry and that inspection of all relevant documents was given. Explaining the delay in allowing Shri B.N. Bhattacharjee to assist the petitioner in the enquiry it is stated that, under the relevant rules, Shri Bhattacharjee should have asked for the permission of his superior officer, viz., the Commissioner of Income-tax, for assisting the accused officer and, as he did not ask for such permission, it was not initially allowed but subsequently granted. It is further contended that the petitioner was not entitled to have inspection of the affidavit of Shri Lyall. It is pointed out that after consideration of the report of the enquiring officer and on the recommendation of the Union Public Service Commission the disciplinary authority properly imposed the penalty of reduction in rank on the petitioner. It is denied that the provisions of Rule 15 of the Conduct Rules or any other relevant statutory rules have been violated or that the charge-sheet was not framed by the proper authority or that ihe punishment inflicted was not one contemplated by the rules or that any principle of natural justice had been violated in this case.

5. Before I proceed to discuss the arguments advanced it would be necessary to consider the provisions of the relevant rules and notifications. The procedure for disciplinary enquiry in the case of the members of the Central Civil Service is laid down in the Central Civil Services (Classification, Control and Appeal) Rules, 1957. Rule 2 provides for suspension by the appointing authority where a disciplinary proceeding is contemplated against the Government servant. Rule 13 enumerates the nature of penalties, Clause (iv) of which provides for reduction to a lower grade or post. Rule 14 defines the disciplinary authority. While Clause (i) of that rule entitles the President to impose any penalty on any Government servant, Clause (ii) provides that penalties specified in Rule 13 could be imposed on a member of the Central Civil Service by, inter alia, the appointing authority and that under Clause (iv) no penalty specified in Clauses (iv) to (vii) of Rule 13 should be imposed by any authority lower than the appointing authority. Clause (ii) of Rule 15 lays down the procedure for imposing major penalties. Sub-clause (ii) enjoins that the disciplinary authority shall frame definite charges on the basis of the allegations on which the enquiry is proposed to be held, and such charges together with a statement of the allegations shall be communicated in writing to the Government servant who shall be required to submit within the time specified a written statement of his defence and also to siate whether he desires to be heard in person. Sub-clause (iii) entitles such a Government servant to have inspection and to take copies from official records as he may specify for the purpose of preparing his defence provided that for reasons to be recorded in writing the disciplinary authority may refuse to give him permission to inspect or take copies if it is of opinion that such records are not relevant for the purpose of the enquiry or that it is against public interest to allow him access thereto. Sub Clause (ix) provides that the disciplinary authority shall consider the records of the enquiry and record its findings on each charge. Sub-clause (x) provides that if the disciplinary authority, having regard to the findings on the charges, is of the opinion that any of the penalties specified in Clauses (iv) to (vii) of Rule 13 should be imposed it shall (i) furnish to the Government servant a copy of the report of the enquiry authority and a statement of its findings together with the reasons for disagreement, if any, with the findings of the enquiry authority, and (ii) give him a notice stating the action proposed to be taken in regard to him and calling upon him to submit within the specified time such representations as he may wish to make against the proposed action. Sub-clause (x) further provides for the records of the enquiry together with the notice to show cause why punishment should not be imposed and the representations made in response thereto to be forwarded to the Public Service Commission where such consultation is necessary and on the advice given by the Commission to determine what penalty shall be imposed on the Government servant and pass appropriate orders thereon. Rule 18 of the Central Civil Services (Conduct) Rules, 1964, provides that every Government servant shall at such intervals as may be specified submit a return of his assets and liabilities giving the full particulars regarding, (a) any immovable property, (b) shares, debentures and cash including bank deposits, (c) other movable property inherited, owned or acquired, and (d) debts and liabilities incurred by him. The explanation to that rule defines the expression ' movable property to include, inter alia, insurance policy, the annual premium of which exceeds Rs. 1,000 or 1/6th of the total emoluments received from the Government, whichever is less. By the Authentication (Orders and other Instruments) Rules, 1958, it is provided that orders and other instruments made in the name of the President shall be authenticated by the signature of a Secretary, Additional Secretary, Joint-Secretary, Deputy Secretary, Under-Secretary or Assistant Secretary to the Government of India.

6. Under the Home Department Notification No. F/19/30 dated the 22nd February, 1932, both the appointing and the pumping authority for, inter alia. Income-tax Officers, class I, is the President.

7. The first contention of Mr. Chakrabartty is that the petitioner being a class I Income-tax Officer his punishment by way of reduction to a lower grade could only be imposed on him by the President who was the disciplinary authority and the charges should also have been framed by him. In this case no charge sheet purported to be framed by or under the authority of the President has been served on the petitioner. There was, therefore, no compliance with the provisions of rules 14 and 15(3) of the Rules.

8. Reliance is placed on the following observation of Sinha J, in A.R.S. Chowdhury v. Union of India, [1956] 60 C.W.N. 933 (Cal.): ' The charge must be issued in the name of the punishing authority . . . . ' This observation was later ou explained by his Lordship in K.K. Murli v. General Manager, South Eastern Railway, [1957] 62 C.W.N. 169, 171 (Cal.), in the following words :

' I am, however, still of that view. It is obvious that in the verynature of things a show cause notice cannot be issued except by anauthority which can punish and which calls upon a delinquent to explainhis conduct with a view to inflict punishment if the explanation isinsufficient or unsatisfactory. It is unthinkable that any self-chosenchampion can take upon himself to investigate the commissions andomissions of a civil servant although he might have no power to inflict anypunishment. However, I do appreciate, that in most cases, the show cause notice is not issued in the name of the punishing authority, but is issued by somebody with his approval or consent. To that extent, I think, the statement of law in the above decision might stand modified. What I meant by saying that it should be in the name of the punishing authority was that it should be in the name of the punishing authority, or with its authority, consent or approval.'

9. Mr. Chakrabartty contends that the memorandum dated the 2nd January, 1963, being annexure ' E ' to the petition, does not show that the charges proposed to be enquired into were made either in the name of or with the authority, consent or approval of the President. It is, therefore, submitted that the entire enquiry proceedings are vitiated and both the report of the enquiring officer and the purported order of punishment should be quashed.

10. Mr. B.L. Pal, the learned advocate for the respondents, argued that the objection against the charge sheet not being signed by or on behalf of the President was never raised by the petitioner at any stage of the enquiry nor has the objection been specifically raised in the petition. If the point had been raised the respondents would have established that the charges were properly framed. I do not agree with this part of Mr. Pal's argument. The point had been specifically raised in the grounds in paragraph 55 of the petition which has been dealt with in paragraph 27 of the affidavit-in-opposition with a general denial. Mr. Pal submitted that paragraphs 32 to 61 of the petition have been affirmed as submissions and not as facts true to knowledge. Mr. Pal next submitted that all the orders by the President in this case have also been signed by Sri S.P. Pande, thereby showing that he was one of the persons authorised to sign on behalf of the President in terms of the said notification dated the 27th February, 1932, and any documents signed by him in this connection must be deemed to be with the authority, sanction or approval of the President. Mr. Pal further submitted that it must be presumed that public officers have performed their official duties correctly and such presumption could only be rebutted by positive evidence that it was Sri Pande in his personal capacity who had purported to issue the charge sheet. Mr. Pal pointed out that the memorandum dated the 2nd January, 1963 (annexure 'E'), only purported to inform the petitioner that it was proposed to hold an enquiry and the allegations and charges on which the enquiry was to be held were enclosed. The order dated the 21st August, 1962, by the President (annexure ' D ') has already notified the petitioner that disciplinary proceedings were contemplated against him and putting him under suspension. Tbe said memorandum only informed the petitioner of the allegations and the charges on which the disciplinary enquiry was to be held and advising him of the procedure to be adopted for his defence. Not only the said order of suspension but also the orders appointing the enquiring officer and the prosecutor by the President were signed by Sri Pande. Further, by an exactly similar memorandum dated the 5th October, 1964 (annexure ' R '), signed by Sri Pande the petitioner was notified of the President's agreement with the findings of the enquiry officer and the penalty proposed to be imposed on the petitioner and requiring the petitioner to show cause against the proposed penalty. With the said memorandum a copy of the inquiry report was enclosed. The final order by the President reverting the petitioner to the next lower grade (annexure ' U ') was also signed by Sri Pande. It was, therefore, submitted that the charges were framed under the authority of and with the approval and sanction of the President. I agree with and accept the above submission of Mr. Pal. The petitioner was in no doubt that disciplinary action was contemplated against him and that he had already been put under suspension by an order of the President. The subsequent information regarding the allegations and the charges which would be the subject-matter of the enquiry must also be presumed to have been given under the authority and with the sanction of the President. Finally, the President approved of the findings of the enquiry officer in respect of each of these charges and imposed the penalty of reversion in rank. There can, therefore, be no doubt that the impugned charge sheet comes within the scope of the test laid down by Sinha J. in Murti's case and must be upheld.

11. Before dealing with the various other objections raised by Mr. Chakra-bartty to the validity of the aforesaid enquiry proceedings, the findings arrived at therein and the order imposing penalty, it would be useful to dispose of a preliminary objection to the maintainability of this application raised by Mr. Pal. The learned counsel submitted that the rule has become infructuous as the petitioner has already reached the stage of superannuation with effect from the first November, 1968. Reliance was placed on a decision of A.K. Sinha J. in [1969] Lab. I.C. 721, where a Government servant oj deputation for a stipulated period was reverted to his substantive post before the expiry of the period. When the rule came up for hearing the period had already expired. Sinha J. held that as no relief could be granted to the petitioner the rule has become infructuous. That decision has no application to the facts of the present case. The petitioner's pay for the period before his retirement as well as the rate of his pension would depend on whether he continued to be a class I or class II officer up to the time of his retirement.

12. The next contention of Mr. Chakrabartty is without any substance and may only be mentioned in passing. He argued that the words used in framing the charges, viz., ' and thereby contravening ' certain provisions of the Civil Services (Conduct) Rules showed that such contravention was assumed. According to him some such phrase as ' appears to have contravened ', should have been used.

13. Mr. Chakrabartty next submitted that the petitioner has not been a0orded a reasonable opportunity to meet the charges preferred against him in accordance with Article 311 of the Constitution or the provisions of Rule 15 of the Rules for, inter alia, the following reasons:

(i) Petitioner's right to inspect and take copies of the records as he might wish for was refused on the ground that such records were not relevant to the enquiry not by the disciplinary authority as provided in Rule 15(3) but by the Commissioner of Income-tax (annexure ' K ' to the petition).

(ii) The prayer of the petitioner for assistance of a lawyer for hisdefence was not refused by the disciplinary authority as provided in Rule 15(5) but by the Commissioner (annexure ' U ').

(iii) The assistance of Sri B.N. Bhattacharjee as the defence helper prayed for by the petitioner was rejected by the Income-tax Officer, Head Quarters, acting for the Commissioner of Income-tax, West Bengal, in contravention of Rule 15(5) (annexure ' F ').

14. It was only from the fourth sitting of the enquiry that Sri Bhatta-charjee's services as a defence helper were made available to the petitioner.

15. In support of his aforesaid contentions, Mr. Chakrabartty urged that as the police report was referred to by the President in the order of punishment dated the 30th August, 1965, (annexure ' O '), the Commissioner was not justified in rejecting the application for inspection of the report as not being relevant to the enquiry. He also argued that considering the voluminous documents relied on by the prosecution and that the prosecution was being conducted by an experienced police officer the petitioner's prayer for the assistance of a lawyer should have been granted. Two decisions of this court were cited by Mr, Chakrabartty in support of his arguments. In the first, Gopal Chandra Biswas v. General Manager, South Eastern Railway, [1964] C.L.J. 1 (Cal.), B.N. Banerjee J. observed that the facility for appointment of a defence helper was not a mere matter of form but of substance and if such facility was not available to the delinquent officer he was not given a reasonable opportunity to utilise his chosen helper and was thereby prejudiced in his defence. The second is a Special Bench decision in Nripendra Nath Bagchi v. Chief Secretary, Govt. of West Bengal, A.I.R. 1961 Cal. 2, where P.B. Mukharjee and P.N. Mukherjee JJ. held that if on the particular facts and complexity of a case, assistance of a lawyer is regarded as a part of reasonable opportunity then denial of such an opportunity is violation alike of the constitutional protection under Article 311(2) and the principle of natural justice, while Bose J. held that public servant had no absolute right to be represented by a lawyer to defend himself against charges which are being enquired into in a departmental proceeding.

16. So far as the aforesaid grounds (i) and (ii) are concerned, Mr. Pal has produced before me the records of the disciplinary proceedings against the petitioner and I find that the petitioner's prayer for being supplied with a copy of the police report and for the assistance of a lawyer made to the enquiry officer was forwarded by the latter to the Central Board of Revenue and by his letter dated the 24th September, 1963, Mr. M. G. Thomas, Under-Secretary, as directed, required the Commissioner of Income-tax, West Bengal, to inform the petitioner that the prayers could not be acceded to. The Commissioner simply conveyed the information to the petitioner. Mr. Pal submits that all the petitions addressed to the President by the petitioner were marked for the attention of Sri M. G. Thomas and that copies of the various orders in these proceedings by the President were also being forwarded to Sri Thomas. It must, therefore, follow that Sri Thomas had the necessary authority or approval of the disciplinary authority to refuse to accede to the petitioner's request, Mr. Pal further submitted that the nature of the charges were not of such a complex nature as to require the assistance of a lawyer. As a matter of fact by his letter dated the 3rd January, 1964 (annexure ' Q '), the petitioner himself is asking Sri Thomas to issue the necessary directions. I am inclined to agree with Mr. Pal. After all, these are technical objections which in my opinion did not in any way prejudice the petitioner in presenting his case at the enquiry.

17. More serious is the charge that the assistance of a defence helper was not made available to the petitioner till at a late stage of the enquiry. The explanation that the requisite application was not made by Sri Bhattachar-jee to his superior officer is not supported by the letter from the Income-tax Officer, Head Quarters, dated the 15th October, 1963 (annexure ' P '), whereby Sri Bhattacharjee is categorically being refused permission to represent the petitioner. However, Sri Bhattacharjee's services were made available to the petitioner on and from the fourth sitting of the enquiry officer and there is no averment in the petition that due to such late sanction the petitioner has been prejudiced in his defence. The facts of the present case are not within the ratio of the decision in Gopal Chandra Biswas v. General Manager, South Eastern Railway. From the correspondence and from the representations made by the petitioner as disclosed in the petition it would appear that the petitioner was quite competent to conduct his own defence with ability. The contention of Mr. Chakrabartty that there has been any failure to observe the rules of natural justice in this case must also be rejected.

18. The next contention of Mr. Chakrabartty is somewhat obscure. It is argued that punishment by way of reduction in rank for an indefinite period as has been done in this case is not permissible.

19. Reference was made to Rule 29(2) of the Fundamental Rules which permits the punishing authority either to specify or not to specify the period of reduction and it is contended that reduction for an indefinite period is not contemplated by the said provision. The penalty has been imposed under Rule 13(10) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, which puts no restriction on the period during which the reduction in rank is to continue. If the relevant provisions in the Fundamental Rules also permit a punishing authority to impose the penalty of reduction in rank without specifying the period of reduction, I cannot see why such penalty could not be imposed for an indefinite period. Mr. Pal has referred to the provisions of rules 54(3) and 53(5) of the Fundamental Rules and also to the fact that the very penalty was recommended by the Public Service Commission.

20. It was next argued that suspension is not provided for as one of the penalties in the aforesaid Rule 13, But it is provided for in Rule 12 and also in Rule 53 of the Fundamental Rules.

21. The validity of the second show cause notice (annexure ' R ') is not challenged. It is argued that Rule 16(9) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, requires that the disciplinary authority shall, if it is not the inquiring authority, consider the record of the inquiry and record its findings on each charge. The impugned notice only records that on a careful consideration of the report and in particular the conclusion reached against the petitioner the President agrees with the findings of the enquiry officer and holds that charges Nos. I and III(ii) are proved. There is nothing to show that the President has considered the records of the enquiry proceedings, nor are there separate findings on each charge. The record of an enquiry is defined in Rule 15(8) to include six items of which the President has considered only item No. (vi), vjp., the report of the findings on the charges. Mr. Pal has, in my opinion, rightly pointed out that the show cause notice for imposing a penalty was issued under the provisions of Rule 15(10) of the aforesaid Rules and all the conditions laid down in that sub-rule for the issue of such a notice have been observed including consulting the Public Service Commission. The notice cannot, therefore, be challenged.

22. This concludes the contentions raised by Mr. Chakrabartty against the initiation and conduct of the inquiry proceedings and the penalty imposed on the petitioner. Though I have dealt with the arguments broadly, it would not be fair to the learned counsel appearing in this case not to refer to some of the decisions cited.

23. State of Orissa v. Bidyabhushan Mohapatra, : (1963)ILLJ239SC was cited by Mr. Pal for the following observation, viz.:

' The constitutional guarantee afforded to a public servant is that he shall not be dismissed or removed by an authority subordinate to that by which he was appointed, and that he shall not be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The reasonable opportunity contemplated has manifestly to be in accordance with the Rules ..framed under Article 309 of the Constitution.'

24. Mr. Pal submitted that the petitioner had not been denied a reasonable opportunity of showing cause. The decision of the Supreme Court in State of Gujarat v. Ananta Mills Ltd., : [1966]2SCR669 was cited for the proposition that the refusal of the Government servant's prayer for engaging a counsel of his choice at the enquiry does not cause any prejudice to the appellant if such Government servant has otherwise reasonable opportunity to defend himself. It was submitted by Mr. Pal that the enquiry was a routine departmental enquiry in which the charges were not of such a nature as to require the assistance of an experienced lawyer. Any person acquainted with the departmental rules and regulations, as the petitioner obviously was, would have no difficulty in conducting his own defence.

25. As has been pointed out by the Supreme Court in one of its latest decisions in A.K. Kraipak v. Union of India, the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. Whenever a complaint is made before, a court that some principle of natural justice has been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.

26. In the present case it is not contended that the petitioner has not been afforded adequate opportunity to present his case before the enquiry officer. Further, the findings of the enquiry officer have been approved by the President after being referred to the Public Service Commission. The penalty imposed was the penalty recommended by the said Commission. In these circumstances, it cannot be said that there has been any miscarriage of justice in the initiation and conduct of the enquiry or in imposing the impugned penalty on the petitioner. None of the grounds urged in support of the rule is tenable and the rule must accordingly be discharged. There would be no order as to costs. Interim order, if any, is vacated.


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