Calcutta High Court (Appellete Side)
Smt. Eti @ Iti Mukherjee vs The State Of West Bengal & Ors on 19 April, 2012
Author: Biswanath Somadder
Bench: Biswanath Somadder
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Biswanath Somadder.
W. P. No.21368 (W) of 2006
With
CAN 3986 of 2008
Smt. Eti @ Iti Mukherjee
Vs.
The State of West Bengal & Ors.
For the petitioner : Mr. Asoke De, Sr. Advocate,
Ms. Pronoti Goswami,
Mr. H. S. Chakraborty
For the respondent nos.3 & 4 : Mr. Gopal Biswas
For the State : Mr. Narayan Ch. Bhattacharya,
Mr. Santanu Kumar Mitra
Heard on : 19th April, 2012.
Judgement on: 19th April, 2012.
Biswanath Somadder, J. :
This writ petition has been taken out challenging the order of suspension from service dated 10th August, 2006, issued against the writ petitioner by the concerned authority of West Bengal State Fishermen's Cooperative Federation Limited (for short, BENFISH).
Initially, when this matter was taken up for consideration, an interim order was passed on 27th September, 2006, wherefrom it appears that this Court was informed that the departmental proceeding had already commenced and the petitioner had been placed under suspension in connection with the said departmental proceeding. The Court, therefore, directed that the authority 2 concerned would proceed with the departmental proceeding and may also conclude the same, but no effect would be given to the ultimate decision without leave of Court. It was further observed that the order of suspension as well as the order which was to be passed by the disciplinary authority in connection with the departmental proceeding initiated against the petitioner, would abide by the result of the instant writ petition. Direction for filing of affidavits was given and affidavits have since been exchanged between the parties.
In the meanwhile, a decision has been rendered in the departmental proceeding and the Managing Director of BENFISH has filed a connected application before this Court on 6th May, 2008, being CAN 3986 of 2008, seeking leave to implement such decision passed by the Board of Directors of BENFISH dated 30th April, 2007, to remove the writ petitioner from her service with effect from 30th April, 2007.
On 22nd March, 2012, when the connected application was being heard, it was submitted on behalf of the writ petitioner that while using an affidavit-on- opposition to the connected application, the charge sheet containing the articles of charges against the writ petitioner was referred to but had, inadvertently, not been annexed. In such circumstances, this Court granted leave to the writ petitioner to bring the charge sheet containing articles of charges on record by way of a supplementary affidavit.
At the time of hearing of the matter, it has been submitted on behalf of the petitioner that the disciplinary proceeding initiated by BENFISH was in respect of identical charges which were imposed upon her in an earlier disciplinary proceeding and the punishment inflicted as a consequence had been set aside in appeal by the appellate authority of BENFISH, in terms of the order dated 6th July, 2006. According to the petitioner, having been exonerated of the charges that were imposed upon her in the earlier disciplinary proceeding, she could not have been subjected to a fresh departmental proceeding on the same set of charges. It is also submitted on behalf of the petitioner that during the course of the latter departmental proceeding, an enquiry report was prepared and used by the authorities, but was never served upon the writ petitioner. It is also 3 contended that the final decision of the disciplinary authority has not been taken on the basis of any resolution of the Board of Directors of BENFISH, but unilaterally by its Chairman and Managing Director.
On the other hand, learned advocate representing BENFISH, relying on the connected application filed by its Managing Director, submitted that in terms of the interim order dated 27th September, 2006, the authority concerned proceeded with the departmental proceeding and have concluded the same but cannot implement its decision without leave of this Court which is why the connected application has been filed. It is submitted that since a final decision in the matter has been taken by BENFISH, leave may be granted to give effect to the same.
After considering the submissions made by the learned advocates for the parties and upon perusing the instant application as well as the connected application, it appears that the subject matter of challenge in the instant writ proceeding is in respect of the order of suspension issued against the writ petitioner by the concerned authority of BENFISH on 10th August, 2006. In view of the interim order passed by this Court on 27th September, 2006, the concerned authority had proceeded with the departmental proceeding wherein the writ petitioner had duly participated. The departmental proceeding has been concluded, but the concerned authority cannot give any effect to the ultimate decision, in view of the embargo which stands imposed in terms of the interim order dated 27th September, 2006. It further appears that the ultimate decision which has been rendered in the matter on 30th April, 2007, is dismissal of the writ petitioner from service as an exemplary punishment so that in future all officers and employees of BENFISH are aware of the discipline and conduct required to be maintained by them. While rendering the decision, it has also been stated by the concerned authority that the same should be brought to the notice of this Court for the purpose of enforcing it.
There is no manner of doubt, whatsoever, that the initial order of suspension has merged into the final decision taken by the authorities of BENFISH, as contained in the order dated 30th April, 2007. The scope of the 4 instant writ petition, which is limited to challenging the order of suspension, cannot be expanded to include in its fold the final decision rendered in the disciplinary proceeding by the authorities of BENFISH, as contained in the order dated 30th April, 2007. Essentially, the writ petition has been rendered infructuous. The writ petitioner, having participated in the disciplinary proceeding, which culminated in the decision rendered by the concerned authority on 30th April, 2007, is, however, not remediless. Such remedy, though, cannot be pursued in the present writ proceeding.
In such circumstances, this writ petition is disposed of granting liberty to the authorities of BENFISH to give effect to the decision rendered on 30th April, 2007. The writ petitioner is, however, at liberty to seek appropriate remedy in the event she feels aggrieved by the decision and it will be open to her to take all points available before the appropriate forum including legality of the charge sheet and the enquiry report as disclosed by BENFISH in CAN 3986 of 2008.
The connected application, being CAN 3986 of 2008, stands disposed of accordingly.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
Later : On behalf of the petitioner stay of operation of this order has been prayed for, which is considered and granted for a period of four weeks from date.
(Biswanath Somadder, J.) pp.