Samarendra Kumar Gupta Vs Inspecting Assistant Commissioner of Income Tax, Range III

Sabyasaghi Mukharji, J.@mdashThe Petitioner joined the income tax department in 1951 and was a permanent Government employee in that department. On May 20, 1966, the Petitioner was placed under suspension and was informed that ''a disciplinary proceeding'' against him was contemplated and he was placed under suspension under sub- Rule (1)-of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The Petitioner was further informed that during the period of suspension he should not leave the headquarters without the previous permission of the Respondent No. 1. On July 25, 1966, the Petitioner received a memorandum issued by the Respondent No. 1 containing the charges against him. By the said memorandum it was proposed by the Respondent No. 1 to hold an enquiry under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. There were six articles of charges. In the first article it was alleged that the Petitioner while acting as a lower division clerk in the income tax office showed misconduct, indiscipline and insubordination by entering the office room of the Inspecting Assistant Commissioner of income tax, Range IV, and also obstructed the said Inspecting Assistant Commissioner in the discharge of his duties. By the aforesaid conduct Petitioner was charged with having contravened Rule 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964. In the second article it was alleged that the Petitioner participated and led demonstrations prejudicial to the public order, decency and morality involving defamation and incitement to offences and raised slogans within the office premises during office hours and used derogatory language to his superior officers. The Petitioner was charged of thus having violated Rules 3(1)(iii) and, 7(i) of the Central Civil Services (Conduct) Rules, 1964. In the next article it was alleged that the Petitioner caused damage to and destruction of Government property while behaving in an unruly manner. The Petitioner was further charged with gross negligence and refusal to carry out orders of the superiors. The Petitioner was also charged for having left headquarters after the suspension order without prior permission of the Inspecting Assistant Commissioner and for having obstructed Sri B. C. Roy Mondal, another public servant in the discharge of his duties. Thereafter on August 4, 1966, the Petitioner applied for the attested copies of the documents mentioned in the charge-sheet. On August 5, 1966, the Respondent No. 1 by his reply intimated that the copies would not be supplied for the purpose of preparing the written statement and drew attention of the Petitioner to Rule 14 of the Central Civil Services Rules. The Petitioner thereafter on August 14, 1966, submitted his written statement. On August 22, 1966, the Respondent No. 1 appointed Sri M. L. C. D. Souza, Inspecting Assistant Commissioner of income tax, as the Enquiring Officer. The Enquiring Officer fixed October 11, 1966, as the date for the commencement of the hearing. On October 10, 1966, the Petitioner asked for adjournment on the ground that the copies of the documents had not been'' supplied to him. On October 11, 1966, the Enquiring Officer passed an order under Sub-rule (11) of Rule 14 of the-Central Civil Services (Classification, Control and Appeal) Rules, 1965. The said order appears at p. 63 of the annexures to the petition. In the said order it had been stated that the plea taken by the Petitioner that there was an Annual General Meeting of the Bengal income tax Association was not correct and as the Government servant did not appear on the date fixed for the enquiry and no further time was allowed and, as such, the officer concerned made an order under Sub-rule (11) of Rule 14 of the Central'' Civil Services (Classification, Control and Appeal) Rules, 1965, and gave directions for inspection of the documents. On October 18, 1966, the Petitioner reiterated that the Annual General Meeting of the Bengal income tax Association was actually held on October 11, 1966, and prayed for attested copies of the statements. Then on November 1, 1966, inspection of these documents mentioned in annex. Ill of the charge-sheet was completed. On November 2, 1966, the Petitioner gave a list of defence witnesses and the list of documents to be produced. This prayer of the Petitioner was objected to. It appears thereafter that during the period from November 2, 1966, to March 1, 1967, certain witnesses were examined and one Mr. P. K. Dhar was to be cross-examined. On March 2, 1967, Mr. P. K. Dhar was to be cross-examined and he wrote a letter to the Enquiring Officer stating that he was sick and he would not be able to appear. Thereafter it was alleged by the Petitioner that the Enquiring Officer suo motu adjourned the hearing, on the other hand, it was alleged by the Respondents that after the Prosecuting Authority mentioned about the illness of Mr. P. K. Dhar he wanted to examine one Mr. P.. D. Gupta. At that stage it was alleged by the Respondents that the Petitioner objected saying that was a gross miscarriage of justice and, as such, he was withdrawing from the enquiry. The Petitioner was informed that if he left the enquiry, there would be no other alternative but to continue the proceedings in his absence. It is alleged that the Petitioner left the room and thereafter the depositions of Sri P. D. Gupta, Sri G. B. Seth and Sri B. C. Roy Mondal were taken and that the said depositions were recorded. The Petitioner has been duly supplied the copies of the said depositions. The Enquiring Officer found the Petitioner guilty and made the report accordingly. On October 17, 1968, the Disciplinary Authority agreed with the findings of the Enquiring Officer and proposed the punishment of removal from service of the Petitioner and issued the second show cause notice. In this application under Article 226 of the Constitution the Petitioner has challenged the enquiry report and the second show cause notice.

2. Mr. Noni Coomar Chakraborty, learned Advocate for the Petitioner, urged before me several points in support of this petition. The first point urged by Mr. Chakraborty was that Rule 3(1)(iii) of the Central Civil Services (Classification, Control and Appeal) Rules, with the violation of which the Petitioner had been charged, was ultra vires Article 19(1)(a)''& (b) of the Constitution. It is, therefore, necessary to set out the relevant part of the said Rule:

3. General--(1) 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.

Mr. Chakraborty contended that there was no indication in the aforesaid Rule as to what conduct was considered unbecoming of a Government servant and, as such, it was alleged that by this rule arbitrary power had been given to the Enquiring and Disciplinary Authorities without any guide-line and, as such, the said Rule had violated the fundamental rights of the Petitioner in respect of the freedom of association and of speech. It is true that there is no definition of what is becoming conduct of a Government servant in the said Rules. Indeed, it would be impossible to define with any amount of exactitude the concept of becoming conduct. It must in the necessary scheme of things be a changing idea. It is quite apparent to-day that what was unbecoming of a gentleman or a student in the beginning of this century perhaps is not considered by many to be unbecoming in the seventies of this twentieth century. Therefore, what is becoming cannot really be defined in any Rule or any Statute. It appears to me, however, that what is becoming of a Government servant must be judged in the context of a particular Rule or of a Statute as viewed by the enlightened conscience of the society at a, particular time with a robust common sense ; it is not possible to lay down in any Rule or Statute a list of permissible modes of conduct of an employee. Looking at the problem in this way it appears to me that there are in this case sufficient indications and guide-lines of what is becoming of a Government servant. Indeed, sub-Rules (i) and (ii) provide good deal of indication of what is expected of a Government servant. They state that they must maintain absolute integrity and maintain devotion to duty. If the expression ''do nothing that is unbecoming of a Government servant'' is considered in the context of sub-cls. (i) and (ii) of Rule 3(1) and in the context of Rules 5 to 22 of the Central Civil Services (Conduct) Rules, I am of the opinion that sufficient guidelines can be found. Of course, this will have to be viewed with a certain amount of social awareness about the trends of the time. In this particular case there is hardly any difficulty, because to enter the room of a superior officer and to throw the paper-weight on the table and to shout inside the office abusive filthy slogans against the superior officer, in my opinion, even in this permissive age must be considered as unbecoming by all standards. Mr. ''Chakraborty placed strong reliance on the observations of Banerjee J. in the case of Golam Mohiuddin Vs. State of West Bengal and Others, . There the learned Judge was concerned with Rule 4 of the West Bengal Government Servants'' Conduct Rules, 1959. Rule 3 related to the discharge of the official duties and Rule 4 related to what was improper and unbecoming of a public servant. The learned Judge observed that the Rule was in a sense elliptic, in that it did not lay down a proper and a becoming standard of behaviour for public servants. It has to be noted, firstly, that the conduct alleged in the said case was entirely different from what is the case here. The conduct in respect of which the said. observations were made was the private conduct of a public servant. It has further to be noted that the said observations were obiter. The learned Judge did not on this ground set aside Rule 4. The learned Judge came to the conclusion that the Rule had not been given retrospective or retroactive operation and, as such, had no application to the facts of that case. Thirdly, it is to be noted that the provisions of the said Rules with which the learned Judge was concerned in that case were different from the provisions of the Rules in the instant case before us. In view of the aforesaid features of the said decision support cannot be had for the Petitioner from the said observations made in the. context of the aforesaid case. Reliance was also placed on the decision of the case of Krishna Chandra v. Chief Superintendent; Central Telegraphs AIR 1955 Gal. 76. There Sinha J. (as his Lordship was then) was concerned with Rule 2(i) of the Government Servants Conduct Rules, 1926, and held that it was entirely vague and uncertain to say that the Government servants could not say anything or write anything which was capable of ''embarrassing'' the relation of the Government and its people or the Government of a foreign country or a-Ruler of a State. It has to be noted that the said Rule was also differently worded. There was a positive prohibition and there was a good deal of vagueness in the expressions used. In that view of the matter, I am of the opinion that Mr. Chakraborty''s client cannot also get much support from the said decision referred to hereinbefore. The next decision upon which reliance was placed was the decision of the Supreme Court in the case of Kameshwar Prasad and Others Vs. The State of Bihar and Another, . There the Court was concerned with Rule 4A of the Bihar Government''s Conduct Rules, 1956, and if was held that as it prohibited any form of demonstration it violated Article 19(1)(a) & (b) but insofar as the Rule prohibited strike, it did not violate that Article because there was no fundamental right to strike. More, or less, same are the facts of the case of O.K. Ghosh and Another Vs. E.X. Joseph, though it was concerned with Rule 4A and Rule 4B of Central Civil Services (Conduct) Rules, 1955. It was observed that the interest of public order to the restriction imposed should be shown to be rationally proximate and, as that was not shown, the restriction imposed by r, 4B was held to be unreasonable. In the case of Radhey Shyam Sharma Vs. The Post Master General Central Circle Nagpur, it was held that there was no fundamental right to strike, guaranteed under Article 19 of the Constitution and as such Sections 3, 4 and 5 of the Essential Services Maintenance Ordinance, 1960, did not violate the fundamental rights. I am of the opinion that the decisions referred to hereinbefore do not in any way militate against the view already expressed by me aforesaid. Mr. Sen for the Respondents contended that inasmuch as there was a provision for appeal, the provision of Rule 3(1)(iii) could not be considered to be arbitrary. He drew my attention to the observations of the Supreme Court in the case of Ch. Tika Ramji and Others etc. Vs. The State of Uttar Pradesh and Others, . But it has to be remembered that the aforesaid observations of the Supreme Court were made in the context of Article 20 and in the present context, I do not think, the said decision has any relevancy. In the view, however, I have taken, as mentioned hereinbefore, the first ground taken by Mr. Chakraborty fails.

3. The second point Mr. "Chakra borty urged was that Rule 7(i) of the Central Civil Services (Conduct) Rules, 1964, under which the Petitioner was charged, was not applicable in this case. He contended that the allegations indicated that the charges could only come under the expression ''public order''. Mr. Chakraborty urged that public order should be something to deal with the law and order situation in the country and public tranquillity. Violent demonstrations inside the office cannot, according to him, amount to any disturbance of public order. In the context of the facts of this case, I do not think that Mr. Chakra borty client is entitled to urge this point. It appears from the statement of allegations at pp. 43-44 of the annexure that abusive slogans were uttered and abusive, derogatory and filthy languages were used and obstructions were caused. In that view of the matter and in view of the amplitude of the expressions used in Sub-rule (i) of Rule 7 of the Central Civil Services (Conduct) Rules, I am unable to accept Mr. Chakraborty''s contention that in the facts of this case that Rule would have no application.

4. Mr. Chakraborty next contended that in the charge-sheet, there were two charges, contained in Articles 5 and 6 of the charges, and the same related to incidents subsequent to the order of suspension. It is undisputed that these two articles dealt with charges in respect of incidents subsequent to the order of suspension. Mr. Chakraborty contended that the order of suspension stated that ''a disciplinary proceeding'' was being contemplated. Therefore, at that time it was not contemplated to enquire into these subsequent conduct. I, however, do not find any remit in this contention. In the charge-sheet, the Petitioner was given notice of these charges. These alleged incidents were also alleged to have happened prior to the enquiry and the Petitioner had ample opportunity to adduce his evidence regarding these charges at the enquiry. I do not find any Rule or statutory provision that before an enquiry is held, the employee has to be put under suspension in respect of that particular charge which is required to be investigated. If the accused has notice of the charges and if the enquiry into the charges is- conducted in accordance with the principles of natural justice then there is no illegality or invalidity merely because some of the charges relate to the period subsequent to the order of suspension. The third contention of Mr. Chakraborty on the ground that the charge-sheet was bad is, therefore, rejected. These were all the contentions urged against the validity or legality of the charge-sheet.

5. There is however another aspect, namely, whether the enquiry was conducted in a proper manner. Mr. Chakraborty contended that the finding of the Enquiring Officer was perverse because three witnesses were examined in the absence of his client. Mr. Chakraborty contended that no reasonable opportunity was given to his client thereby. As mentioned hereinbefore, regarding the question whether Sri P. D. Gupta, Sri G. B. Seth and Sri B. C. Roy Mondal were examined in the absence of the Petitioner and under what circumstances there is a good deal of factual controversy. According to ;he Petitioner Mr. P. K. Dhar''s cross-examination was not over and, he Enquiring Officer after fixing the case for the next date, left the enquiry and the Petitioner left along with him. According to the enquiry report and the affidavit of the Respondents the Prosecuting Authority wanted to examine the other witnesses, but the Petitioner, shouted that that was gross miscarriage of justice and left the proceedings, though he was informed that the proceedings would be continued in his absence. In this respect of the matter after going through the report of the Enquiring Officer and the affidavit of the Respondents I prefer to accept the version of the Enquiring Officer. There is another aspect of this question. If the question whether there has been violation of the principles of natural justice, is dependent upon an adjudication of a disputed question of fact, it is not desirable to decide that question in an application under Article 226 of the Constitution and it is preferable to relegate the parities to a suit. In that view of the matter I am of the opinion that this contention of the Petitioner in this application must also be rejected and it must be held that the Petitioner has not been able to establish that the finding arrived at the enquiry proceeding was in any way perverse because certain witnesses were examined in the absence of the Petitioner.

6. There is however further aspect of this question. The Petitioner by his letter dated November 2, 1966, called upon the Respondents to produce certain documents to be examined by him. It has been alleged that the Petitioner was not given that opportunity. In para. 10(ii) of the petition it has been stated that the documents for which the Petitioner had written on November 2, 1966, were not produced. In para. 15 of the affidavit-in-opposition affirmed by one Bhabesh Mitra, on July 8, 1970, it has been stated that the documents mentioned in the said letter of the Petitioner ''as were available'', were produced. It is not a denial of the allegation that the documents were not produced. From the above statements it is also not clear which of the documents called to be produced were not available. Learned Counsel for the Respondents also did not produce any evidence before me to indicate that some of the documents required were not available. Therefore, one has to proceed on the basis that the documents called for by the Petitioner in his letter dated November 2, 1966, were not produced. Mr. Sen, learned Counsel for the Respondents made a submission that there could not be any question of production of documents because that Rule could only apply if Sub-rule (11) of Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules applied and, according to Mr. Sen, Sub-rule (11) of Rule 14 would have no application in this case as the Government servant had not failed to appear within the specified time This submission, however, it appears to me, was made under a misapprehension because it appears from the records that Sub-rule (11) of Rule 14 was clearly attracted in this case and furthermore the Enquiring Officer had proceeded on that basis as would be apparent from the order dated October 11, 1966, appearing at p. 63 of the annexures of the petition. In that view of the matter, it has to be presumed that the documents mentioned in the letter of November 2, 1966, were not produced as required by Sub-rule (11) of Rule 14 of the Central Civil Services Rules. Furthermore, it appears to me that due to non-production of the said documents, the Petitioner was denied the opportunity to place his case before the Enquiring Officer and, therefore, there has been violation of the principles of natural justice.

7. The next aspect of this question relates to the examination of Sri K. E. Johnson. It is true that the Enquiring Officer is entitled to refuse to call any witness if he considers the evidence of that witness to be immaterial or irrelevant. But in this case, it appears from the facts recorded at pp. 169 and 170 of the annexure of the petition, which is the enquiry report, that certain witnesses called on behalf of the Respondents had stated that they had reported the'' incident about the Petitioner ''as requested by Sri Johnson''. The Petitioner''s grievance in this case has been that the Petitioner was an active trade unionist and it was as a result of his trade union activities that he incurred the displeasure of the head of the department and at his instigation, the disciplinary proceedings had been taken against him. It is sometimes true that the heads of the departments are unnecessarily named and dragged to create confusion, embarrassment and prolongation of the adjudication. But in this case, Mr. Johnson''s name was obviously brought in by the witnesses for the prosecution. Therefore, if the defence wanted to examine him, it was necessary to bring Mr. Johnson before the enquiry and have his testimony. Certain things are clear. Mr. Johnson had requested the officers concerned to report the incident. Mr. Johnson was also the head of the department at the relevant time and the Petitioner was a prominent member of the trade union._ in the said office. In the aforesaid context and in view of the fact that Mr. Johnson''s name had been brought in by the witnesses for the prosecution and in view of the defence taken at the beginning of the enquiry by the Petitioner that he was being victimised for his trade union activities, it is difficult to accept the position that the testimony of Mr. Johnson was irrelevant. After all adjudication in a domestic enquiry must not Only serve the purpose of arriving at the correct factual position but must also fulfil another purpose of giving the aggrieved person an opportunity of being able to place before the authority all the relevant evidence. Domestic enquiries are now-a-days assuming great importance where men''s livelihood is vitally affected, The domestic enquiries are not guided by any law or rules or procedure which are provided for the Courts of justice to ensure that no injustice is done to a litigant or to a party. The domestic enquiries must, therefore, proceed on such basis where by reasonable standard a man must have an impression that justice is being done to him. In the case like this where admittedly sub-Rule (11) of Rule 14 of the Central Civil Services (Conduct) Rules, 1964, applied and the documents were not given to the Petitioner and in a case where the witnesses examined on behalf of the prosecution had mentioned Mr. Johnson''s name, it appears to me that in rejecting the prayer for examination of Mr. Johnson on the ground that his evidence was neither necessary nor material, the Enquiring Officer had violated the principles of natural justice and, as such, there has been denial of reasonable opportunity to the Petitioner. On this ground, therefore, Mr. Chakraborty''s client is entitled to succeed. Certain decisions were cited about the application of the principles of natural justice in a particular case must depend upon the particular facts and in this case in the context of the allegations made it appears to me that in view of the two aforesaid infirmities in conducting the enquiry there has been violation of the principles of natural justice. In that view of the matter it is not necessary for me to discuss the said cases.

8. The last point urged by Mr. Chakraborty was that the second show cause notice was bad because the disciplinary authority had only considered the enquiry report aforesaid. As has been held this show cause notice should not be strictly construed.. In view of the observations made by the Supreme Court in the case of Union of India (UOI) and Others Vs. K. Rajappa Menon, and the observations of D. Basu J. in the case of Haridas Sarkar v. Union of India 73 C.W.N. 656. I am unable to accept this contention of Mr. Chakraborty. Therefore, had it been possible for me to uphold the findings of the enquiry report I would not have set aside the second show cause notice on this ground.

9. There remains for me to consider two other aspects--one agitated by counsel for the Respondents and the other though not agitated by counsel for the Respondents but which appears on the facts of this case. Mr. Sen, counsel for the Respondents, urged that the petition should be rejected inasmuch as the Petitioner was guilty of making false statement and suppression of material facts. The Petitioner had stated in para. 2 of the petition that the Petitioner was a permanent employee of the income tax department without any blemish in his career. Mr. Sen said that it was not true because on a previous occasion the Petitioner had been suspended. The Petitioner had deliberately suppressed this fact. It is true that the Petitioner has not been frank; but I am of the opinion that that is not a ground for rejecting this petition because even if that fact had been stated that would not have materially affected the Petitioner''s right to move under Article 226 of the Constitution or to obtain any relief if the enquiry report or the proceedings were otherwise bad. Reliance was placed on the observations "of Chakravartti C.J. in the case of Hindusthan Motors v. The Union of India and Anr. 58 C.W.N. 209 (219). As mentioned hereinbefore, if I came to the conclusion that the Petitioner was guilty of the suppression of material facts, then I would have rejected this petition. The Petitioner is undoubtedly guilty of suppression of certain facts; but these facts were not very material for the purpose of this application. In that view of the matter I am unable to accept Mr. Sen''s contention.

10. The next question which arises in this application is whether the Petitioner is entitled to move against the second show cause notice or Whether he should have preferred an appeal against the punishment. It appears to me that in the second show cause notice it had been stated that the Petitioner could make representation on the basis of the evidence adduced. Now, the Petitioner''s grievance is that the Petitioner has been unable to adduce proper evidence in this case. Secondly, the existence of an alternative remedy is no bar to the exercise of jurisdiction by this Court but only is a factor which this Court should take into consideration in exercising its discretion under Article 226 of the Constitution. In this case it appears to me that the Commissioner of income tax who as mentioned hereinbefore was cited as a witness by the Petitioner is the Appellate Authority. In that view of the matter I am of the opinion that the existence of the provision for appeal in this case should not deprive the Petitioner of his right under Article 226 of the Constitution.

11. In the view I have taken, this application succeeds and the enquiry report mentioned in the petition and the second show cause notice dated October 17, 1968, are set aside and quashed. Let writs in the nature of certiorari and mandamus issue accordingly. There will also be a writ in the nature of mandamus directing the Respondents not to give effect to the said enquiry report and the second show cause notice. There will be no order as to costs. This order, however, will not prevent the Respondents from proceeding afresh with the enquiry subsequent to the charge-sheet, that is to say, without serving a fresh charge-sheet in accordance with law and in accordance with the observations made in this judgment.

Rule made absolute. C.R.D