Calcutta High Court (Appellete Side)
Biswajit Ghosh vs The State Of West Bengal & Ors on 19 December, 2011
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
Present:
The Hon'ble Justice Ashim Kumar Banerjee
And
The Hon'ble Justice Shukla Kabir (Sinha)
WPST 263 of 2011
Biswajit Ghosh
-Vs-
The State of West Bengal & Ors.
For the Petitioner : Mr. Manas Kumar Ghosh
Mrs. Susmita Dey (Basu)
For the Respondents : Mr. Subrata Talukdar
Miss Reshmi Ghosh
ar
Heard on : 19.12.2011
Judgment on : 19.12.2011
Ashim Kumar Banerjee, J.
2 The petitioner was engaged on probation as a Constable in Kolkata Police. He joined service on June 24, 1997. His probationary period was initially for two years that was time to time extended. Ultimately, the Authority discharged him from service with retrospective effect from December 12, 2003 by an order dated December 30, 2003, appearing at page 70 of the petition.
The petitioner challenged the said order by approaching the Tribunal in O.A No. 58 of 2004. The Tribunal directed representation to be considered and disposed of. The State accepted the said order and then passed a reasoned order disclosing the reason for his termination, appearing at page 20 thereof.
From the said order, we find that he was a habitual absentee. He was awarded 24 punishments against one reward. He faced four departmental proceeding resulting in reduction of pay. His annual increment was withheld for two years. His next annual increment was withheld with cumulative effect. His pay was again reduced for one year. Despite aforesaid, he could not improve himself and due to his poor service record, he was not considered for confirmation. Hence, his period of probation was not extended and he was discharged from service.
Assailing the reasoned order, the petitioner approached the Tribunal again by filing O.A No. 453 of 2007. Considering the factual matrix so brought before the Tribunal through the reasoned order, the Tribunal declined to interfere. The Tribunal dismissed the said application. Hence, this petition before us.
Being aggrieved by the said order of the Tribunal, the petitioner has approached us by filing the instant application.
Mr. Manas Kumar Ghosh, learned counsel, appearing for the petitioner, submits that the order of discharge was a non-speaking one, hence the Tribunal directed the Authority to assign reason.
On perusal of the said order, it appears that the petitioner was discharged from service on the basis of allegations for which the petitioner was entitled to defend himself in a regular departmental proceeding. In support of his contention, he cited the following decisions:-
i) V.P Ahuja Vs. State of Punjab & Orss, reported in AIR 2000 SC 1080.
ii) Jaswantsingh Pratapsingh Jadeja Vs. Rajkot Municipal Corporation & Anr.,
reported in (2007) 10 SCC 71.
iii) Nehru Yuva Sangathan Vs. Mehbub Alam Laskar, reported in (2008)2 SCC 479. 3 Opposing the application, Mr. Subrata Talukdar, learned counsel, appearing for the State, has relied on an unreported decision (WPST 220 of 2010,dated September 26, 2011) of this Court where one (Ashim Kumar Banerjee, J.) of us was a party. The Division Bench observed, "from the order of discharge, we do not find any stigma attached to him. The petitioner was dismissed from service; hence no departmental proceeding was required to discharge him". Such decision was had in a case where the petitioner was on probation.
We have considered the rival contentions. We have carefully perused the said order under challenge. If we look to the Apex Court decision cited at the Bar, we would find, the consistent view of the Apex Court was to look beyond the order of discharge to find out whether there was any stigma attached to him or not. If the result is positive, the petitioner, although a probationer, would be entitled to defend himself in a regular departmental proceeding before his discharge. In this regard, we may consider the latest decision in the case of Nehru Yuva Sangathan Vs. Mehbub Alam Laskar (supra). In the said decision, the order of discharge did not specifically make any allegation against the delinquent. When the Court directed the Authority to assign reason it surfaced that he was guilty of misappropriation. On this allegation, the Apex Court observed, "if the respondent had come to know at a later stage, the real object and purport for which the termination order was issued, he could challenge the same thereafter. The foundation of the order having been disclosed by the appellant, at a later stage, the original order must be held to be vitiated in law."
We also considered the decision in the case of Pavanendra Narayan Verma Vs. Sanjay Gandhi PGI of Medical Sciences & Anr., reported in (2002)1 SCC 520. The paragraph 29 is relevant herein is quoted below:-
"29. Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma? Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or inepitutude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, 4 also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job."
From the paragraph quoted (supra), we find that according to the Apex Court, the stigma was implicit in the termination. A simple termination is not stigma. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.
Coming to the factual matrix, we find that the initial order did not speak of any stigma at all. It was really a non-reasoned order by discharging him as "unsuitable". Why he was unsuitable, was explained by the Joint Commissioner in the reasoned order.
From the reasoned order, we find that whenever he was charged for insubordination the Authority proceeded against him departmentally that ended in a punishment. During the probationary period the delinquent suffered four departmental proceeding and in each case he suffered punishment. The Authority found that despite those punishments being suffered he could not improve himself and his service record was "poor". Hence, he was unsuitable. No fresh allegation was brought against him by the reasoned order that could be termed as a stigma deserving a departmental proceeding.
Even if we give full credence to Mr. Ghosh to whatever he has submitted before us and ask the Authority to proceed against him departmentally it would be a futile exercise because there was no fresh allegation against him. His service record was poor and there was no development. Hence, he was unsuitable. Such fact cannot be termed as stigma. One might be having poor track record that could not be a stigma. The Tribunal very rightly declined to interfere, so do we.
WPST 263 of 2011 thus fails and is hereby dismissed.
There would be no order as to costs.
Mr. Talukdar on instruction assures this Court that one month notice pay would be paid to him, if not paid earlier, within a period of four weeks from date. He was already paid upto December 30, 2003.
Urgent photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.
(Ashim Kumar Banerjee, J.) I agree, 5 (Shukla Kabir (Sinha), J.)