Withdrawal Of Earlier Challenge To Defective Charge Memo Doesn't Bar Disciplinary Authority From Issuing Fresh, Valid Charge Memo: Calcutta HC

A Division Bench of the Calcutta High Court comprising Justice Madhuresh Prasad and Justice Prasenjit Biswas held that the dismissal of a prior proceeding as infructuous due to a defective charge memo does not bar the disciplinary authority from issuing a fresh, proper charge memo as Order 23 Rule 1 CPC does not apply. Background Facts A departmental proceeding was initiated against employee under the West Bengal Services (Classification, Control and Appeal) Rules, 1971. A charge memo was served on him, but it contained only a draft article of charge. The employee approached the West Bengal Administrative Tribunal. The authorities realized their mistake and issued a fresh charge memo with proper articles of charge. However, the employee contended that this communication was never served on him. During the proceedings before the Tribunal, the State authorities submitted that they did not wish to proceed with either the draft charge memo or the subsequent communication. They wanted to issue a fresh charge sheet. The Tribunal disposed of the original application as infructuous. Then, the authorities served a fresh charge memo on the employee. Aggrieved, the employee filed another original application before the Tribunal, seeking quashing of the fresh charge memo, regularization of his suspension period, and full salary for that period. However, the Tribunal dismissed the application. Aggrieved by the same, the employee filed the writ petition before the Calcutta High Court. It was argued by the employee that the Tribunal failed to consider that the earlier charge memo could not be made the basis of a fresh proceeding. It was further submitted that the State authorities had made a prayer for liberty to proceed afresh before the Tribunal in the first original application, but no such liberty was actually granted by the Tribunal. It was contended by the employee that the Tribunal accepted the stand of the respondents that they did not want to proceed on the basis of the earlier charge memo, further the Tribunal had disposed of the first Original Application. The principles contained in Order 23 Rule 1 of the C.P.C provide that when a liberty is not granted then the party is precluded from instituting a fresh proceeding in respect of the subject matter of the earlier proceeding. It was contended that Order 23 Rule 1 C.P.C. which applies to a writ proceeding, would apply to the Tribunal also. On the other hand, it was argued by the State that the issue raised by the employee in the first original application was confined only to a violation of the procedural prescription. Further, an issue was raised in the first Original Application that the charge memo was required to contain articles of charge, whereas only draft articles of charge was communicated to the employee. It was further submitted that the subject matter of the first Original Application was limited to issuance of a draft article of charge instead of a proper charge sheet. Therefore, first Original Application was confined to an issue that without a proper charge memo the proceeding was not maintainable. The State further contended that the authorities cannot be precluded from complying with the procedure under Rule 10 of the 1971 Rules. It was submitted that the principle of Order 23 Rule 1 CPC does not apply because the subject matter of the first application was the draft article of charge, and the authorities are now proceeding afresh with a proper charge memo. It was further argued that Order 23 Rule 1 CPC only bars a plaintiff from raising the same subject matter in a subsequent suit, and does not bar the defendant authorities from taking fresh action Findings and Observations of the Court It was observed by the Division Bench that the employee had filed the first original application being aggrieved only by the fact that a draft article of charge was served instead of a proper charge memo. Neither the competence of the authority issuing the charge memo, nor the substance of the allegations contained in it was made an issue by the employee. The first original application was disposed of as infructuous because the respondent authorities did not want to proceed with the draft charge memo and the subsequent communication. It was further observed that the State did not give any undertaking or assurance that a fresh charge memo would not be issued against the employee in future. It was held that the employee cannot be permitted to rely upon the concession recorded in the order to operate as a bar to any future charge memo. It was further observed that the substance of the allegations was neither raised nor considered by the Tribunal in the First Original Application. Therefore, the authorities cannot be precluded in future from proceeding against the petitioner based on proper charge memo, in accordance with the 1971 rules. Relying on the ...

Withdrawal Of Earlier Challenge To Defective Charge Memo Doesn't Bar Disciplinary Authority From Issuing Fresh, Valid Charge Memo: Calcutta HC

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Namdev Singh

Withdrawal Of Earlier Challenge To Defective Charge Memo Doesn't Bar Disciplinary Authority From Issuing Fresh, Valid Charge Memo: Calcutta HC

Namdev Singh

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