Calcutta High Court (Appellete Side)
Smt. Chayana Tanti And 4 Others vs State Of West Bengal & Others on 18 July, 2011
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Present :
The Hon'ble Justice Ashim Kumar Banerjee
-And-
The Hon'ble Justice Dr. Mrinal Kanti Chaudhuri
W.P.S.T. 316 of 2010
Smt. Chayana Tanti and 4 others.
-Versus-
State of West Bengal & Others
For Petitioners : Mr. Swapan Kumar Nandy
Ms. Soumi Kundu
For State Respondents : Ms. Chaital Bhattacharjee
Judgment on :- July 18, 2011 One Bimal Chandra Tanti was a constable under the Calcutta Police. He was charged with the allegation of habitual absenteeism. The Authority proceeded him departmentally and after affording him adequate opportunity to defend himself in the proceeding dismissed him from service. He approached the Appellate Authority. The Appellate Authority affirmed the punishment. He approached the learned Tribunal. The Tribunal vide judgment and order dated March 17, 2009 dismissed his application by observing that he had suffered punishment to his credit in the past including for unauthorized absence. He was not entitled to have any lenient view deserving minor punishment. The Tribunal observed, "the imposition of punishment of dismissal in the given situation cannot at all be said to be harsh or not in commensurate with the proved guilt". Hence this petition before us.
2Mr. Swapan Kumar Nandy, learned counsel appearing for the petitioner raises four issues :-
i) The Authority was bias as they named the Enquiry Officer in the charge sheet itself without waiting for reply to the charge sheet.
ii) Even if the charges could be said to have been proved it could not be said to be "misconduct".
iii) Once the petitioner was allowed to join in his service, his past absence was condoned and the proceeding was thus not valid in the eye of law.
iv) Assuming guilt of petitioner was proved, the punishment imposed upon him was shockingly disproportionate.
On the issue of bias, Mr. Nandy cites four authorities, which are as follows :- (i) Ratan Lal Sharma vs. Managing Committee, Dr. Hariram (Co-Education) Higher Secondary School & Ors. reported in 1993 SCC (L&S) 1106 (ii) Tarakeswar Nandi Vs. Food Corporation of India & Ors. reported in 2002 (2) SLR 480 (iii) Surendra Chandra Das Vs. State of West Bengal & Ors. reported in 1981 (3) SLR 737 and (iv) State of Punjab Vs. V.K. Khanna & Ors. reported in AIR 2001 SC 343.
On the issue of misconduct, Mr. Nandy has relied upon the decision of the Division Bench of this Court in the case of Madhusudan Chowdhury Vs. State of West Bengal & Ors. reported in 2006 (1) CLJ (Cal) 386 On the issue of condonation of absence he has relied upon an unreported Division Bench decision of this Court in the case of Union of India Vs. Ashish Debnath & Ors. (F.M.A. 391 of 2003).
3He lastly cites two decisions, one by the Apex Court in the case of Chairman cum Managing Director, Coal India Ltd. & Anr. Vs. Mukul Kumar Choudhuri & Ors. reported in (2010) 2 WBLR (SC) 99 and the other by the Division bench of this Court in the case of Maitrayee Ghosh Vs. Kolkata Port Trust & Ors. reported in 2008(2) CHN 85 on the issue of punishment imposed upon him being shockingly disproportionate.
Mr. Nandy lastly contends that the unauthorized absence could not be said to be a misconduct which would attract capital punishment of dismissal from service. He prays for setting aside of the order of the Tribunal as well as the order of the Disciplinary Authority, so merged in the order of the Appellate Authority.
Opposing the application, Ms. Chaitali Bhattacharjee, learned Counsel appearing for the State contends that the petitioner was a habitual absentee. He suffered 23 punishments in the past which included 19 minor punishments and 4 major punishments. Most of the punishments he suffered earlier, were on the ground of unauthorized absence. This time the petitioner did not produce any medical certificate to justify his unauthorized absence. The authority gave him adequate opportunity to defend himself in the said proceeding and ultimately imposed punishment of dismissal from service.
On the issue of bias, she has cited the decision of the Apex Court in the case of South Bengal State Transport Corporation Vs. Ashok Kumar Ghosh & Ors. reported in (2010) 11 SCC 71 at paragraph 13 being relied upon is quoted below :-
"13. In our opinion, it may be open for a disciplinary authority to initiate the departmental proceedings on consideration of the reply of an employee the but as an absolute proposition of law it cannot be said that before 4 initiating the departmental enquiry or appointing an enquiry officer, reply of the delinquent employee is required to be obtained and considered unless it is the requirement of the rules. There may be cases where the charges are of such a nature that the disciplinary authority may not require any reply from the delinquent employee but straightaway initiate the departmental enquiry and appoint an enquiry officer."
She also cites the decision of the Apex Court in the case of R. Rajaiah Vs. Government of andhra Pradesh & Anr. reported in (2009) 16 SCC 369 on the issue of bias.
On the question of considering the past conduct Ms. Bhattacharjee has relied upon Regulation 9, Explanation Note B of the Police Regulations of Calcutta, 1968, wherein the Authority is duty bound to consider the past conduct of the delinquent before imposing the punishment.
She lastly contends that during pendency of the proceeding before the Tribunal, the delinquent died leaving him surviving the petitioners before us. According to Ms. Bhattacharjee, right to sue did not survive, hence proceeding before the Tribunal as well as before us is not maintainable.
Let us first decide the last issue raised by Ms. Bhattacharjee. It is true that the delinquent suffered the order of punishment during his lifetime. He challenged the order of punishment before the Tribunal. During pendency of the said proceeding he died leaving him surviving applicants. The consequence of dismissal from service would automatically debar the delinquent to get any retrial benefit or post death benefit. Hence, his heirs and legal representatives, in our view were not entitled to continue with the challenge to the proceeding and the final order. To that extent, we reject the contentions of Ms. Bhattacharjee and hold the proceeding maintainable.
5On the factual matrix we find that the Authority did not commit any illegality by naming Enquiry Officer, in absence of any specific bar in the Service Rule. We are prompted to say so in view of the observation of the Apex Court being quoted (Supra).
On the issue of consideration of the past charge we find that the Police Regulations do provide such provision and it was the duty cast upon the Disciplinary Authority to consider the past conduct of the delinquent before imposing any punishment. Hence the Authority did not commit any illegality on that score.
On the issue of condonation of absence, we find, identical question was gone into by this Bench of W.P.S.T. 497 of 2009 vide judgment and order dated April 13, 2011. We held as follows :-
"Mr. Chatterjee has tried to contend that the decision in the case of State of Punjab (Supra) relied on by the Tribunal dealt with a situation where the leave was subsequently condoned. On perusal of the said decision we do not find any support of what Mr. Chatterjee has submitted. In the said case on identical facts the punishment was inflicted. Thereafter to set the records right the period of absence was treated as 'extraordinary leave' without attaching any salary. It was required for counting the qualifying service. The Apex Court observed that by the said order the Authority did not condone the unauthorised leave nor wiped out punishment already imposed. The said order was only consequential to imposition of punishment. It was to maintain continuity of service denying salary for the period of absence. Same is the case here. The Authority by the same order imposed the punishment of dismissal from service and at the end regularised the unauthorised absence by treating the same as extraordinary leave. How this could be said to be condonation of absence, is not intelligible to us."6
We lastly observed therein, that the petitioner being a member of a disciplined Force could not have absented himself unauthorizedly on several occasions.
Mr. Nandy has relied upon the Division bench decision of this Court in the case of Maitrayee Ghosh (Supra). In the said case the petitioner was a doctor in Port Trust Hospital, where she was absenting unauthorizedly. The Authority warned her. She declined to join on the ground that her husband was to undergo an operation. The Authority communicated to the petitioner that her absence caused tremendous hardship to her colleagues in the Intensive Care Unit. Considering such fact, the Division Bench observed that the prolonged absence from duty in absence of sanctioned leave could not attract removal from service as it was shockingly disproportionate.
The ratio decided in a case has to be applied in the factual matrix involved in the case. In the case before us, the petitioner was a member of the disciplined Force. He was a habitual absentee as we find from the record. He was earlier warned and imposed lighter punishment. He could amend himself, which he did not. Hence dismissal from service was appropriate. In this regard we may refer to the Apex court decision in the case of Chairman & Managing Director, V.S.P. & Ors. Vs. Goparaju Sri Prabhakara Hari Babu, reported in (2008) 5 SCC 569.
The petitioner raised the plea of bias. In the case of State of Punjab (Supra) the Apex Court observed "if on the other hand allegations pertain rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the basis therefore would not arise".
7The Tribunal very rightly dismissed the application made by the petitioner which does not deserve any interference by this Court.
The application fails and is hereby dismissed without however, any order as to costs.
Urgent xerox certified copy of this order, if applied for, be given to the parties, on priority basis.
( Banerjee, J.) ( Dr. Mrinal Kanti Chaudhuri, J.) akb.