Background Facts

The appellant was working as the Head Assistant of IFU, SWM-I, Br.-VIII at the Calcutta Municipal Corporation (now Kolkata Municipal Corporation, KMC). There was an allegation of misappropriation of funds of KMC against the appellant and some others. A preliminary enquiry was held by an Enquiry Committee. The appellant appeared before the Committee and submitted his written explanation. He also executed a declaration on non-judicial stamp paper admitting his involvement in defalcation of money by raising fake bills drawn in favour of unauthorized persons who were not legal heirs of deceased persons.

The appellant admitted that he had generated and passed supplementary bills against leave encashment/short drawn and that he was solely responsible for the incident. He deposited Rs. 3 lakh as part of the excess amount and sought time to deposit the remaining amount. Pursuant to the recommendation of the Enquiry Committee, the Joint Municipal Commissioner (P) and disciplinary authority passed an order dated June 10, 2015 dismissing the appellant from service.

The appellant preferred an appeal before the Municipal Commissioner. The appellate authority did not dispose of the appeal, therefore, the appellant moved the High Court under Article 226. The Single Judge directed the appellate authority to communicate the result of the appeal within six weeks. The appellate authority dismissed the appeal.

The appellant filed the writ petition challenging both the order of dismissal and the appellate order. The Single Judge dismissed the writ petition on the ground that in view of the admission of guilt and repayment of money, the disciplinary authority was not required by law to hold a regular proceeding under service regulations.

Aggrieved by the same, the appellant filed the appeal before the Division Bench of the High Court at Calcutta.

It was argued by the appellant that the preliminary enquiry was only a fact finding procedure directed to be held before a regular disciplinary proceeding could be initiated. He contended that the Enquiry Committee was constituted only to find out whether disciplinary proceeding should be initiated against the erring employees. He submitted that the proper course of action for the employer should have been to issue a charge sheet upon treating the report of the enquiry committee as prima facie evidence of misconduct.

It was further argued that the affidavit of admission was dated May 14, 2015 whereas the Enquiry Committee was constituted on May 19, 2015, which raised doubts with regard to the role of the appellant. He submitted that the appellant was forced to admit the guilt and was a victim of a plot aimed at saving other guilty persons. He further submitted that the Corporation had a regular Vigilance Department but the matter was not referred to Vigilance nor any vigilance enquiry was made, which was contrary to the Corporation's own Circular and Rules.

On the other hand, it was argued by the KMC that once the appellant had admitted the guilt and repaid the money, the matter attained finality. It was submitted that any further proceeding as per the Service Rules and Regulations would be an empty formality, as the appellant would have been held to be guilty in any event. It was further contended that the appellant neither denied his signature on the confession nor denied the factum of repayment of money before the authorities.

Findings and Observations of the Court

It was observed by the Division Bench that the preliminary enquiry conducted upon constitution of the Enquiry Committee was only a fact finding committee and did not partake the character of a regular enquiry as envisaged in a disciplinary proceeding upon issuance of a charge sheet. It was observed that preliminary enquiries are held only to collect facts for formation of a prima facie opinion as to whether sufficient grounds exist to proceed against the accused employee by holding a regular disciplinary proceeding.

It was observed that on the basis of findings in a preliminary enquiry, no order of punishment can be imposed. It was further observed that even if the confession was voluntary, the preliminary enquiry cannot be held to be a regular enquiry.

It was held that using the report of the Enquiry Committee as concrete proof of guilt and issuing the order of dismissal without giving the appellant an opportunity to rebut it was violative of principles of natural justice. It was also noted that the Corporation deviated from its own procedure under the Calcutta Municipal Corporation (Powers and Functions of the Vigilance Authority) Rules, 1994 by not referring the matter to the Vigilance Commission. The Service Regulations of the Corporation require charges to be framed against an employee and a copy of the charge sheet to be supplied with an opportunity to explain his conduct.

Further the Commissioner's Circular No. 6 of 1979-80 provided that preliminary enquiry is a fact finding enquiry and its report cannot ordinarily be cited as a document in support of charges. It was observed by the Bench that as per the Circular, after receiving the charge sheet, if the civic employee admits the charges, no further formal enquiry would be necessary.

It was held by the Division Bench that until a charge sheet was issued and the appellant admitted his guilt in answer to the charges, the departmental proceeding could not be done away with solely on the basis of his admission.

The judgment in Jagdish Prasad Saxena vs. State of Madhya Bharat was relied upon wherein it was held that departmental enquiry is not an empty formality and a formal enquiry must be held after supplying charge sheet.

Further, in Roop Singh Negi vs. Punjab National Bank and Others, it was held that a confession must be proved. Further, the case of Nirmala J. Jhala vs. State of Gujarat & Anr. was also relied upon wherein it was held that the purpose of holding a preliminary inquiry in respect of a particular alleged misconduct is only for the purpose of finding a particular fact and prima facie, to know as to whether the alleged misconduct has been committed and on the basis of the findings recorded in preliminary inquiry, no order of punishment can be passed.

With the aforesaid observations, the order of dismissal and the order of the appellate authority confirming the dismissal were set aside. The appellant was directed to be reinstated in service within a week in the same post he was holding prior to dismissal. Consequently, the appeal filed by the appellant was disposed of by the Division Bench.

Case Name : Sri Rajesh Banerjee Vs. The Calcutta Municipal Corporation & Ors.

Case No. : MAT 666 of 2023

Counsel for the Appellant : Subir Sanyal, Sr. Adv.; Sutirtha Das, Adv.;Sourojit Mukherjee, Adv.; Trijit Shonkar Mitra, Adv.

Counsel for the Respondent : Alok Kumar Ghosh, Adv.; Arijit De, Adv.