1970 PLP 769 (PLC)

The case of the first party is that he was Jamader to supervise the work of the sweeper of the second party for the last 4 years. That, as his wife fell ill, he sought two days' casual leave for 9‑9‑69 and 10‑9‑

69. But the Departmental In‑charge Dr. Ghose granted him leave only for one day. But on going home he found the condition of his wife serious. So, he overstayed for another day and returned on I1‑9‑69 and he met Dr. Ghose in his chamber and‑prayed for extension of leave already granted. Thereafter, he received a charge‑sheet from the second party on 16‑9‑69 and he replied to the charges on 20‑9‑69 denying that he never misbehaved with Dr. Ghose. There was enquiry thereafter. He brought his witnesses. But the second' party did not properly record the statements of his witnesses and never afford him any opportunity to defend himself. On the contrary, the second party‑ suspended him and later dismissed him on the charge of insubordination to Dr. Ghose. He sent a grievance petition. A reply was given by the second party, which is not satisfactory. Hence, his complaint in this Court with prayer for re‑instatement with all back wages to his former post. The second party ‑filed written' statement wherein they denied the allegations of the first party. They have stated inter alia that the first party was in the service of the second party for about 4 years and that his services were not found satisfactory. The first party behaved in a disorderly way shouting at Dr. Ghose, the Departmental In‑charge demanding grant of leave for 10‑9‑

69. He was charge‑sheeted. His witnesses were examined. His explanation was found unsatisfactory. On the record of evidence he was found guilty and accordingly he was dismissed. So, his present application should be dismissed with cost. Points for determination are: (1) Whether the charge of misconduct under section: 17(3)(a) as framed by the second party against the first party is legal and valid. (2) What relief, if any, is the first party entitled to? Both the points will be dealt together as they are inter connected, It is admitted that the first party was in the service of the 2nd party for about 4 years, He was working as Jamader supervising v the work of sweepers. Dr. Ghose was incharge of that Department. His wife was seriously ill and he applied for v: lays' Co. 1 leave and he was, granted one day's leave and he applied for extension of his leave by one day. It is admitted that he went Ma m to his home at Boalkhali. He over‑stayed on the 10th September Chat 1969 finding his wife's condition precarious. He returned to his duties on 11‑9‑69 and prayed for extending his leave or allowing him leave for 10‑9‑69, which he has already spent. On this it is stated that there was an altercation between Dr. Ghose and .the first party Jamader. He was charged for misbehaviour and shouting at Dr. Ghose demanding grant of leave for 10‑9‑

69. It was stated that he had created an atmosphere not conductive to the working of the Department and thereby he showed insubordi nation towards his superior., It appears .on the face of the record that his charge is found to be defective. Mere shouting does not amount to insubordination and as such, the charge framed under section 17(3)(a) must be called improper 'charge. There is, however, another‑charge under section 17(3)(g) for disorderly behaviour. But their must‑be‑ detailed statements regarding disorderly behaviour. In the present case 3 witnesses were examined from the aide of the first party and one witness from the side of the prosecution. . Evidence of the witnesse shows that there was an altercation between Dr. Ghose and the first party. But the fact is that the altercation was due to some intemperate language used by Dr. Ghose upon the first party. However, it appears from 'the evidence of one of the witnesses that Dr: Ghost ‑ was speaking in a high tone to the accused‑firs party and that shows that he was showing his temper to his subordinate, the first party, as he failed to return to his duties on the previous day. It is not at all clear from the evidence of Dr. M. A. Mannan that from whom the altercation was originated, by Dr. Ghose, or the first party, or that he was also showing temper to Dr. Ghose in reply to‑any charge. . We further find that the only prosecution witness Dr. Manna wa:.3 not allowed to be cross‑examined by the first party. This is an. inalienable right accrued to the first party. In cross‑ t lie" examination the veracity of the statement of Dr. Mannan could be tested; even if, it was an alleged disorderly conduct of the 1st party. But it appears that the statement of Dr. Mannan was not unfavourable .to the first party, nor does it mean any charge against him. Dr. Ghose, the most crucial witness for the prosecution, hag" not, been examined. Even the accused's witnesses have not been cross‑examined. So, the witnesses examined are not sufficient as to prove the charges framed by the second party against the first party. So, there was no proper charge sander section 17(3)(a) or under section 17(3)(g), Further it after the first party sent his grievance petition, he was not given a hearing and that there was no enquiry conducted by the second party as per requirements of section 25 of the Standing Orders Act, 1965. Therefore, there has been violation of the provisions of law on that scope too. We further find that even from the moral point of view, this order given to the first party was not justified. The poor Jamader went his village home at Boalkhali and ‑as his wife was very ill, he could not attend his duties a day earlier and he met Dr. Ghose in that connection. A leave for only 2 days eras a natural demand and it ought to have granted by the second part. It seems that it was no doubt victimization on the first party by Dr. Ghose. In view of all these facts and circumstances as mentioned above, we find that the order of dismissal passed upon the first party by the second party, both on facts and law was illegal and this has got to be set aside. As no other charges have been brought; against the first party at any time before, it must be presumed that he had a satisfactory record of service. So, we are inclined to re‑instate him irk his former post with all back wages. Hence, this application is allowed on contest and the following award is given in a given of the first party. The first party should be re-instated to his former post by the second party with all back wages in 30 days from the date of passing of this order. In considering the facts and circumstances we pass no order as to cost. In passing this order, I have consulted the learned. Members and obtained their written opinion, which is in complete agree ment with my view.