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Abdul Rafique Vs. District Judge - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Judge
Reported in(1957)ILLJ504Cal
AppellantAbdul Rafique
RespondentDistrict Judge
Excerpt:
- .....communicated to the other registering authorities of the district.3. on 23 july 1954, the district judge, midnapore, upon requisition from the district magistrate, midnapore, served a notice on the petitioner calling upon him to show cause why his licence should not be cancelled or any other appropriate action taken against him on two charges, namely, that on 24 june 1954 he had paid illegal gratification to the record-keeper of the midnapore collectorate, and secondly, that on the same day, by a false representation, he got a written statement from one narayanan chandra kuladhaya of village golore, district midnapore, in connxion with an application for copies of khatians, which was not correct. the petitioner showed cause to the district judge by his letter of explanation dated 11.....
Judgment:

Sinha, J.

1. The petitioner is a pleader's clerk attached to the District Court at Midnapore. He has been acting as such since the year 1910. The rules under which pleaders' and mukhtars' clerks are registered, are contained in Chap. 42 of the Civil Rules and Orders. Under those rules a

registered clerk' means a clerk who is employed by a pleader or mukhtar in connexion with his legal business and who is registered under these rules.

2. An application for registration is to be made to the district authority who is the District Magistrate in all district headquarters stations in case of those ordinarily practising in magisterial courts, and the District Judge in all other cases. It is admitted that in this particular case the registering authority was the District Judge of Midnapore. The registering authority under the rules 'has the power of suspending or removing a registered clerk from acting as such, and can also cancel the licence.' The relevant rule reads as follows:

Rule 987A(ii). Any registering authority in the case of a clerk registered by him may for reasons to be recorded in writing and after hearing the clerk in his defence, order his suspension or removal from the register and the cancellation of his licence, if he is guilty of any misconduct such as to unfit him for the exercise of his duties, or convicted of any offence involving moral turpitude. Every order of removal shall be communicated to the other registering authorities of the district.

3. On 23 July 1954, the District Judge, Midnapore, upon requisition from the District Magistrate, Midnapore, served a notice on the petitioner calling upon him to show cause why his licence should not be cancelled or any other appropriate action taken against him on two charges, namely, that on 24 June 1954 he had paid illegal gratification to the record-keeper of the Midnapore Collectorate, and secondly, that on the same day, by a false representation, he got a written statement from one Narayanan Chandra Kuladhaya of village Golore, District Midnapore, in connxion with an application for copies of khatians, which was not correct. The petitioner showed cause to the District Judge by his letter of explanation dated 11 August 1954. The District Judge thereafter transferred the proceedings to the Subdivisional Munsif at Midnapore for enquiry. On 27 July 1954 the Munsif called upon the petitioner to show cause against the said charges. On 8 August 1954, the petitioner showed cause before the Munsif by filing a second written explanation. The learned Munsif then heard the charges and evidence was taken by him. After conclusion of the enquiry, the learned Munsif drew up a report holding that the charges had not been proved. The records then went up to the District Judge, who, looking into the report, disagreed with the finding of the learned Munsif, and without hearing the petitioner any further held that he was guilty of the first charge. He thereupon made an order suspending the petitioner's licence for three years.

4. This rule was taken out on 21 April 1955, calling upon the opposite party to show cause why the proceeding's culminating in the order dated 17 January 1955 should not be quashed, and/or why a writ in the nature of mandamus should not issue directing the opposite party to forbear from giving effect to the said order.

5. A point has been taken, namely, that the clerk was not allowed to have the services of a lawyer at the enquiry. There is nothing in this point. In enquiries like this, the authorities are not bound to allow the delinquent to do represented by a lawyer. In my opinion, however, the order suffers from a fatal infirmity. Under Rule 987A(ii) quoted above the delinquent must be heard by the registering authority, and thereafter the authority will make his order. It cannot be said by any stretch of imagination that the registering authority ever heard the petitioner in this case. In an ordinary departmental proceeding it may be permissible to delegate the enquiry to subordinate officials, and the dismissing authority generally hears the delinquent on the question of the penalty to be imposed. Here, however, there is a specific rule which lays down the procedure to be observed. The registering authority has a duty to hear the delinquent, and it cannot be said on the facts of this case that he heard him. This has given rise to a very unsatisfactory result in this matter, because the learned District Judge has come to a different finding from that of the learned Munsif, and the petitioner never had any opportunity of putting his case before the registering authority. It is of course admitted that the learned Munsif is not the registering authority. Under the circumstances, this order cannot be supported.

6. The result, therefore is, that the rule must be made absolute and a writ in the nature of certiorari must issue quashing the order and a writ in the nature of mandamus must also issue directing the opposite party not to give effect to it. This does not, however, mean that the licence is restored at once. What will happen is that the matter is sent back, so that the registering authority may now hear the petitioner and pass appropriate orders. There will be no order as to costs.


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