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inspecting Asst Commissioner of Income-tax and ors. Vs. Somendra Kumar Gupta - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Judge
Reported in(1977)ILLJ108Cal
Appellantinspecting Asst Commissioner of Income-tax and ors.
RespondentSomendra Kumar Gupta
Cases ReferredPradesh v. Chmtammi Satfasliiv
Excerpt:
- .....rule 3(1)(iii) of the central civil services (conduct) rules, 1964 (hereinafter referred to as the conduct rules). the second article of charge related to the action of the petitioner in respect of the incident in collecting a number of members of the staff and holding demonstration within and outside the room of the said inspecting assistant commissioner thereby violating rule 3(1)(iii) and rule 7(1) of the conduct rules. the third charge related to the action of the petitioner in the same incident in exhibiting violent and unruly conduct to the said officer, breaking the table glass to pieces by the paper weight while thumping the table their by contravening rule 3(1) iii) of the conduct rules. the fourth charge related to the petitioner's gross negligence of duties in not attending.....
Judgment:

Salil Kumar Datta, J.

1. This is an appeal against the judgment and order of Sabyasachi Mukherjee, J., dated December, 3, 1970 whereby the rule obtained by the petitioner on his application under Article 226(1) of the Constitution was made absolute. The petitioner according to his case has been a lower division clerk in the Income-tax Office, District I (I) as a permanent employee without any blemish in his service career. By an order dated May 21, 1966 passed by the Inspecting Assistant Commissioner of Income-tax, Range XIII, Calcutta, the appellant No. 1 before us, the petitioner-respondent was placed under suspension as a disciplinary proceeding against him was contemplated and he was further directed not to leave the headquarters without obtaining previous permission of the appellant. The petitioner, thereafter was served with a memorandum dated July 25, 1966 issued by the said appellant proposing to hold an inquiry against him under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as the Appeal Rules) on several articles of charge and along with the same alleged imputations of misconduct or misbehaviour in support of each article of charge were enclosed. The first charge related to the action of the petitioner in leading a number of staff on May 20, 1966 at about 12 noon to the office room of the Inspecting Assistant Commissioner of Income-tax, Range IV Sim Seth and using derogatory,, abusive and filthy language towards him, while continuously thumping the table and obstructing him in discharge of his duties, thereby contravening Rule 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964 (hereinafter referred to as the Conduct Rules). The second article of charge related to the action of the petitioner in respect of the incident in collecting a number of members of the staff and holding demonstration within and outside the room of the said Inspecting Assistant Commissioner thereby violating Rule 3(1)(iii) and Rule 7(1) of the Conduct Rules. The third charge related to the action of the petitioner in the same incident in exhibiting violent and unruly conduct to the said officer, breaking the table glass to pieces by the paper weight while thumping the table their by contravening Rule 3(1) iii) of the Conduct Rules. The fourth charge related to the petitioner's gross negligence of duties in not attending office regularly and at times leaving office without permission after signing attendance register in dislocation of office work thereby making himself liable for disciplinary action under Rule 3(1)(ii) of the Conduct Rules. Charge V related to the petitioner's leaving the head quarters, Calcutta without obtaining previous permission of his superior authority tlureby violating Rule 3(i)(ii) of the said Rules.' The last charge related 10 the obstruction caused by the petitioner to the care-taker of the Income Tax building of Chowringhee Square on June 16, 1966 While he went with his staff to remove some poster,; displayed there. Along with the memorandum were annexed a list of documents and witnesses for the purpose of establish my, the charges. The petitioner was further directed to file his written statement of defence within a stipulated period.

2. The petitioner filed his written statement of defence on August 14, 1966, The appellant No. 1 appointed M.L.C. D'Souza, Inspecting Assistant Commissioner as the Enquirirg Officer who by order dated October 11, 1966 fixed the case to November 3, 1966. The petitioner, was directed to inspect the specified documents within 8 days and to supply list of his witnesses as also to give notice within 10 days for discovery and production of any documents lying in custody of Government. The petitioner completed inspect ion of the documents on November 1, 1966. By his letter of November 2, 1966 he gave a list of witnesses to be examined and also a list of documents to be produced at the inquiry. According to the petitioner no documents as requisitioned by him were produced and the prosecution witnesses were cross-examined by the petitioner without obtaining inspection of the documents. The petitioner contended that this was done with the purpose of frustrating the defence case. The defence case was that the departmental proceeding was started against the petitioner on false and distorted facts to stifle the trade union movement of the Class IV employees of the Income-tax department. An innocent trade union activity by the petitioner was transformed into a series of gross misconduct by the secret manipulation of the head of the office. The petitioner further contended that as the defence case was that the head of the department 'wanted to nip the trade union movement in the bud' advantage of the incident of May 20, 1966 was taken and K. Johnson, the Commissioner of Income-tax, West Bengal 1, Calcutta, who instructed his officers to build a case, was not allowed to be examined even though he was cited by the petitioner as his witness. The enquiry proceeding continued till March 3, 1967 when some prosecution witnesses were examined behind the brick of the petitioner which Wi.s duly objected to by him. The defence further was that there was a spontaneous assemblage of employees before the room of Seth to express resentment against utilization of services of a Class IV employee for personal work by Seth and as President of Class IV Employees Association he was there to see an amicable settlement while the imputations against him were untrue. The petitioner on March 7, 1968 and onwards examined two witnesses on his behalf in support of defence. The petitioner also cross-examined the prosecution witnesses. By his report dated May 9, 1%8, the Inquiry Officer found the petitioner guilty of charges of Articles 1,111, IV, V and VI and also of Art. II to the extent that the petitioner Jed a demonstration which was prejudicial to public order, decency and morality.

3. The Inspecting Assistant Commissioner of Income-tax, Range XIII, Calcutta by his letter of October 17, 1986 while forwarding the enquiry report, informed the petitioner of his acceptance of the findings of the Inquiry Officer and also that he proposed to impose on the petitioner the penalty of removal or dismissal from service. The petitioner was thereby given an opportunity to make representation on the penalty within fifeen days.

4. The petitioner contended that the disciplinary proceeding was vitiated by failure to observe the principles of natural justice inter alia for not muking available the documents required by the petitioner to be produced at the inquiry and also in no-calling K.E. Johnson as a defence witness He further submitted that the provisions of the Sub-clause(3) of Rule 3 of the Conduct Rules which required every Government servant to do nothing which is unbecoming of a Government servant is vague, indefinite and unreasonable violating the provisions of Article 19(b), (b), (c) of the Constitution. On these allegations and contentions the petitioner made an application to this Court under Article 26(1) of the Constitution for a writ of cenioruri quashing the disciplinary proceedings as also the second show-cause notice and also for a writ of momentum commanding the respondents to forbear from proceeding with the said notices. On this application a rule nisi was issued by this Court on November 19, 1968 calling upon the respondents to show cause why appropriate writs as prayed for should not be granted, and enforcement of the final order if any was stayed in the meantime.

5. An affidavit-in-opposition was affirmed on behalf of the respondents to the Rule by Bhabesh Chandra Mitra, Inspecting Assistant Commissioner of Income-tax:, Range III on February 20, 1968, In this affidavit all the material alleiuuions in the petition were denied und it was submitted that there was no failure to observe (he principles of natural justice in the inquiry proceedings. The documents available which were mentioned in the IJM of documents submitted by the petitioner were produced at a subsequent hearing before the case was closed and were offered for inspection by the petitioner. Further there was no occasion or necessity to examine K.F. Johnson as witness who was cited only to cause harassment and embarrassment und to drag the inquiry into irrelevant matters and also to make a big political issue of the misconduct of the petitioner. It was further said that the provisions of the Conduct Rules were not ulira vires Articles 14 and 19 of the Constitution, It was submitted accordingly that, the Rule should be discharged. An affidavit-iii-reply was affirmed on behalf of the petitioner on March 5, 1969 and the allegations made in the petition were reiterated. It was further said that the documents called for were required forth:? purpose of cross-examination and accordingly no purpose would be served by the alleged offer of inspection of the documents at such late stage after completion of the cross-examination, ft was also reiterated that Sub-clause (3) of Rule 3(1) of the Conduct. Rules was vague and indefinite and manifestly vocative of the fundamental rights.

6. The learned Judge by his judgment dated December 3, 1970 held that Sub-clause (3) of Rule 3(1) of the Conduct Rules is to be considered in the context of Sub-clauses (1) and (2) and Rules 5 to 22 of the Conduct Rules and sufficient guidelines could be found therein. It was further held that there could be no dispute that actions alleged to have been committed by the petitioner in the room of his superior officer was unbecoming by all standards. The Court also rejected the petitioner's contention relying on the inquiry report that the petitioner was not given any opportunity to cross-examine some of the prosecution witnesses. About the production of documents the Court referred to paragraph 15 of the affidavit-in-opposition of Bhabesh Chandra Mitra of July X, 1970 in which it was staled that the documents mentioned in the said letter of the petitioner 'as were available' were produced. This, according to the learned Judge, did not amount to a denial of the allegations that the documents called for were not produced us required by Sub-rule (11) of the Rule 14 of the Appeal Rules. The Court was of opinion that due to non-production of the documents the petitioner was denied the opportunity to place his case before the inquiry officer and there has been a violation of the principles of natural justice. The Court further held that K.F. Johnson, the Commissioner of Income-tax, was a vital witness for the defence as it was the petitioner's case that he was an active trade unionist and it was as a result of trade union activities that he incurred the displeasure of the head of the department and at his instigation the disciplinary proceeding was started. The rejection of the petitioners prayer to examine K.E. Johnson on. the ground that his evidence was neither necessaiy nor material violated the principle of natural justice and there was thus denial of reasonable opportunity to the petitioner. In this view. the Rule was made absolute and the inquiry reports annexed to the petition as also the second show-cause notice dated October 17, 1968 were set aside and quashed. Liberty was, however, given to the appellants to proceed with a fresh inquiry subsequent to the charge sheet. The propriety of this decision has been challenged in this appeal while the petitioner has filed a cross-objection challenging the vires of the Rule 3(1)(iii) of the Conduct Rules

7. Mr. D.K. Sen, learned Counsel appearing for the Central Government and its officers, submitted that the inquiry report itself would indicate that the documents mentioned in the letter of the petitioner 'as were available' were produced for his inspection on or about December 8, 1967 long before the closure of the defence case. It was submitted that, as the inquiry report showed and established by evidence, K.E. Johnson did not give any written instruction to the officers who were asked by him to make a report of the incident on May 20, 1967. Accordingly, this document alleged to contain Johnson s instruction was not in existence thus not available for production. Other documents were in fact produced but the petitioner declined to take inspection of the same, it was further stated that the Inquiry Officer had recorded his reasons for not calling K.E. Johnson as defence witness and the grounds for such action were cogent and proper grounds not liable to be interfered with by this Court. It was also denied that Clause (iii) of Rule 3(1) was ultra vires Article 19 of the Constitution. For all these reasons he submitted that the appeal should be allowed and the judgment under appeal should be set aside and the Rule discharged.

8. Mr. Krishna Benode Roy, learned advocated appearing for petitioner-respondent submitted on the other hand that the failure to produce the documents involved a violation of the obligations under Rule 14 Clause (11) of the Appeal Rules and alleged attempt to produce the documents long after cross-examination of the prosecuting witness were of no avail to the petitioner at that stage. It was further stated that in view of the defence contention that the department was taking action against the petitioner for his trade union activities K. E, Johnson was a necessary witness and should have been produced at the inquiry by the inquiry officer. It was also submitted that Sub-clause (III) of Rule 3(1) of the Conduct Rules did not provide any guidelines for the Government employees as to which action would be unbecoming for a Government servant. The Rules, therefore, suffered from vagueness and indefiniteness and the charges based thereon accordingly should be of no avail. We shall now examine the contentions raised by the parties with reference to the authorities cited by them.

9. As to what transpired during the inquiry we shall have to rely and depend on the report of the inquiry officer as was observed in Union of India v. T.R. Verma : (1958)IILLJ259SC , which laid down that when there is a dispute as to what happened before a Court or Tribunal the statement of the Presiding Officer in regard to it is generally taken to be correct. In view of the dispute raised on facts as to what happened at the inquiry we prefer to rely on the report of the inquiry officer and hold that the petitioner did not avail himself of the opportunity to examine the documents produced as stated by the inquiry officer though he later on wanted to make capital of this fact. The inquiry officer had stated that the documents 'as were available' were produced on or about December 8, 1962, the day fixed for further hearing of the inquiry. This was stated in the context of the letter of the petitioner of November 2, 1966 calling for the documents. On December 8, 1967 the documents were produced and were placed before the Government servant but he refused to inspect them on the ground that the Inquiry Officer should have sent a written reply to his letter dated 2-11-1966 intimating about the production of documents. It has also been stated in the affidavit-in-opposition of Bhabesh Chandra Mitra dated July 8,1970 in para 9 that 'all the documents available which were mentioned in the list of the documents submitted by the petitioner were produced at the subsequent hearing before the case for defence was closed and the petitioner had adequate opportunity to inspect the same. It may be mentioned here that it is recorded in the deposition of prosecution witnesses D.K. Sen and U.C. Ganguly that there was no written note or instruction from K.E. Johnson as alleged. Accordingly there was no scope for producing the alleged written note of K.E. Johnson called for by the petitioner while the other documents were produced at ihc inquiry. If it was the desire of the petitioner that the witness should be cross-examined on these documents he could have asked lor the same instead of taking the peculiar attitude of not inspecting the documents at all. 1 he grievance made by the petitioner on this point, therefore, appears to be no bona fide and it appears to be an attempt to frustrate the inquiry by raising technical objections. As was observed in State of bfadhva Pradesh v. Chmtammi Satfasliiv,' A.I.R. 1961 S.C. 1623, the departmental inquiries should observe the principles of natural justice and should be fairly and properly conducted while such decisions should not be challenged on the ground that the procedure adopted was not exactly in accordance with what was observed in Courts of law. The learned Judge's attention in this case was not drawn to this part of the inquiry report as also to paragraph 9 of the affidavit-in-opposiiion wherein it is clearly stated that the available documents requisitioned by the petitioner were produced. We, therefore, overrule the petitioner's contention on this point and hold that there was no failure in the observance of the principles of natural justice on the part of the Inquiry Officer in respect of the above contention.

10. The Inquiry Officer had recorded that the evidence of Johnson was not necessary or material in relation to the charges, while as the administrative head it was his normal duty to ask officers present to send their reports. The prosecution witnesses indicated in examination or in cross-examination that they were not in any way influenced by him. Moreover, Johnson was not connected in anyway with the incident of May 20, 1966 or with the inquiry or the disciplinary proceedings. The Inquiry Officer who certainly has a discretion to decide if each and every witness called by the parties should be produced as found by the learned Judge, considered all these aspects. He was of opinion that there was no occasion or necessity to examine Johnson in the circumstances and the sole purpose of the petitioner was to create embarrassment and harassment by dragging the senior most member of the administration to the inquiry. We do not consider that there was improper exercise of discretion on the part of the Inquiry Officer in his refusal to call Johnson as defence witness and we accept the reasons recorded by him for his action as cogent and sufficient. We are accordingly unable to agree with the learned Judge that Johnson was a necessary witness and the failure to summon him to depose at the inquiry amounted to violation of the principles of natural justice.

11. On perusal of the relevant materials we are of opinion that there has been no failure in the observance of principles of natural justice in regard to the aspects which have been agitated before us in course of argument on behalf of the petitioner-respondent.

12. The Sub-rule (iii) of Rule 3(1) of the Conduct Rules which is the subject-matter of challenge in the cross-objection, provides-

3. General- (i) Every Government servant shall at all times -

(I) maintain absolute integrity;

(II) maintain devotion to duty; and

(III) do nothing which is unbecoming of a Government servant.

Apart from the above provisions, Rules 4 to 22 expressly prohibit the Government servant from committing any of acts mentioned there. It is to be appreciated that there cannot be an exhaustive list of actions which would be unbecoming of Government servants. Apart from the prohibitions each case will have to be decided on the attending circumstances in the context of norms of conduct expected of a Government servant by usually accepted standards of morality, decency, decorum and propriety. The rules' accordingly do not suffer from any vagueness of indefiniteness and as held by the learned Judge, the acts alleged to have been committed by the petitioner under the articles of charges are unbecoming of a Government servant by any standard. While on this topic, we do not think it necessary to consider the obiter dictum on similar rules made by Banerjee, J. in Golam Mohiudin V. State of West Bengal : (1964)ILLJ462Cal , except to express our disagreement from them as indicated above. In our view, there are well-understood and well-recognised norms of conduct of morality decency, decorum, and propriety becoming of Government servants and they do not depend on the subjective inhibitions of the disciplinary authority as apprehended in the above judgment. Every act complained of has to be judged on its own merits and on objective considerations the Enquiry Officer has to decide whether it was in violation of the said Sub-rule. The decision of the Enquiry Officer can be scrutinized in an appeal under the rules as well as by the Court. The contention thus raised by the petitioner must accordingly fail.

13. For all these reasons we are of opinion that there was no failure in the observance of principles of natural justice in the connected inquiry proceedings and the relevant Rules whereon the articles of charges arc based do not suffer from any vice of unconstitutionality.

14. The appeal accordingly succeeds and is allowed and the cross objection is dismissed. The jugdment and order under appeal are set aside and as a refuel the Rule is discharged and all interim orders are vacated.

15. There, however, will be no order for costs in the circumstances.

Mitra, C.J.

16. I agree.


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