Calcutta High Court (Appellete Side)
Of Bhairab Ganguly College & Anr vs Pritimoy Hore & Ors on 12 May, 2017
Author: Dipankar Datta
Bench: Sahidullah Munshi, Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT : Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Sahidullah Munshi
CAN 7514 of 2015
and
CAN 4391 of 2016
in
FMA 2402 of 2015
Principal and Ex-officio, Secretary, Governing Body
of Bhairab Ganguly College & anr.
v.
Pritimoy Hore & ors.
with
MAT 578 of 2015
Pritimoy Hore
v.
State of West Bengal & ors.
For the appellants in FMA : Mr. Swapan Kumar Dutta,
2402 of 2015 and the Mr. Sambuddha Dutta.
respondents 5 and 6 in
MAT 578 of 2015
For the State in both : Mr. Pantu Deb Roy,
the appeals Mr. Subrata Guha Biswas.
For the respondent no.1 in : Mr. N. Chatterjee,
FMA 2402 of 2015 and the Mr. Goutam Misra.
appellant in MAT 578 of 2015
Hearing concluded on : February 28, 2017
Judgment on : May 12, 2017
DIPANKAR DATTA, J. :
1. A writ petition, W.P. No. 36478(W) of 2013 (Pritimoy Hore v. State of West Bengal and ors.), was disposed of by a learned judge of this Court by judgment and order dated 23rd February, 2015. The operative part thereof reads as follows:
"Therefore, the College authorities are directed to produce all relevant papers asked for including the original service book and in case original service book is destroyed or misplaced by the College authorities the College authorities are directed to reconstruct service book of the petitioner and to send it to the Government authorities for consideration and releasing petitioner's pensionary benefits and other benefits except arrear salaries in accordance with law. Entire exercise should be completed by six weeks from the date of communication of this order."
2. The respondents 5 and 6 in such writ petition have carried the said judgment and order in appeal (FMA No.2402 of 2015). Aggrieved by refusal of the learned judge to direct payment of arrear salaries, the writ petitioner Pritimoy Hore (hereafter Mr. Hore) is also in appeal before us thereagainst by presenting MAT No.578 of 2015.
3. CAN 7514 of 2015 is an application at the instance of the appellants in FMA 2402 of 2015 seeking to bring on record certain subsequent facts. CAN 4391 of 2016 has also been filed in FMA 2402 of 2015 by the appellants seeking clarification of an earlier order dated 22nd March, 2016 passed by a coordinate Bench of this Court.
4. The appeals and the applications have been heard together and we propose to dispose of the same by this common judgment and order.
5. To trace the genesis of the controversy, one has to walk down memory lane.
6. Mr. Hore was appointed on 10th of August, 1973 as clerk-cum-typist of Bhairab Ganguly College, Kolkata (hereafter the said college). On 11th May, 1981, Mr. Hore was served with a charge-sheet signed by the Principal of the said college reading as follows:
"In inviting a reference to the letters quoted above I have to state that no reply has reached me on the points in question till this date. Under the circumstances I am constrained to frame the following charges against you and to direct you to appear before the Enquiry Committee on 15.5.81 at 12 p.m. in the College Office.
You will be given full opportunity to explain your conduct on the points at issue and to produce any evidence/anyother matter relating to your self-defence before the said Enquiry Committee.
Please note that if you fail to appear before the Enquiry Committee as directed, the Enquiry Committee will be constrained to proceed exparte in the matter and on the basis of the report of the Enquiry Committee appropriate steps will be taken.
You have been hereby charged as follows:-
1. That you have violated the service-rules and defied the duly constituted authority.
2. That you are habitually irregular in your attendance and performance of allotted duties.
3. That you have tampered the Attendance Register of the class III staff.
4. That you are guilty of insubordination, dereliction of duties, gross negligence, anti-institutional activities.
5. That you always behave harshly with students and others.
6. That you misrepresented to the students' representatives, facts in connection with duties officially allotted to you and made certain comments extremely derogatory to the honour and position of the Head of the Institution.
7. That you humiliated bitterly the Head Assistant, Sri Bajra Ghosal in presence many other members of the Non-teaching staff by indiscriminate use of filthy and abusive words and violent physical demonstrations grossly violating all official norms of decency and decorum in the College-
Office Room during working hours on 27.4.81."
Significantly, the statement of imputations of misconduct did not accompany such charge-sheet.
7. Upon an enquiry being conducted into such charges, Mr. Hore was found guilty. The Governing Body of the said college in its meeting held on 20th May, 1981 unanimously resolved to dismiss Mr. Hore from service with effect from 21st May, 1981.
8. Aggrieved by the order of dismissal from service, Mr. Hore appears to have instituted a civil suit (T.S. 331 of 1980). However, the suit was ultimately withdrawn by him. The details, however, are not available on record.
9. Thereafter, the order of dismissal was challenged by Mr. Hore by preferring an appeal before the Director of Public Instruction, West Bengal (hereafter the DPI). Since the appeal was not being disposed of, a writ petition [C.O. No. 11713(W) of 1981] was presented by Mr. Hore praying for, inter alia, a direction upon the DPI to dispose of such appeal.
10. On 1st December, 1981, the writ petition was disposed of by a learned judge of this Court. It was recorded in the order that according to statute 13(b) of the statutes framed under the Calcutta University Act, 1961 an appeal lay before the Vice Chancellor of the University of Calcutta (hereafter the CU) within 30 days of receipt of the order of imposing penalty. Since an appeal had been presented by Mr. Hore before a wrong forum, the prayer for a direction on the DPI to expedite hearing and for disposal of the appeal had become infructuous. Considering the prayer made by the learned advocate appearing on behalf of Mr. Hore that he would prefer an appeal before the appropriate appellate authority, the learned judge also observed that it was not necessary for His Lordship to say that the appellate authority before whom the appeal is filed would consider the question of limitation in accordance with law.
11. Mr. Hore then presented an appeal before the Vice Chancellor, CU. Although C.O. 11713(W) of 1981 stood disposed of by the order dated 1st December, 1981, another learned judge of this Court on 31st March, 1983 passed an order in such (disposed of) writ petition that the appeal filed by Mr. Hore before the Vice Chancellor, CU be disposed of at an early date, preferably within 4 weeks in accordance with the Calcutta University First Statutes, 1979.
12. Aggrieved by the order dated 31st March, 1983, the Principal and some of the members of the Governing Body of the said college challenged it by preferring an appeal (FMAT 2277 of 1983).
13. Surprisingly, C.O. 11713(W) of 1981 was placed as "To be mentioned" on 30th May, 1983 before the learned judge who had disposed of such writ petition on 1st December, 1981. The learned advocates for Mr. Hore and the CU had appeared before His Lordship who recorded that statute 13(b) of the statutes was not applicable to Government Sponsored Colleges, including the said college till the coming into force of the Calcutta University Act, 1979; however, on consideration, inter alia, of the serious inconvenience that might result to Mr. Hore, the appellate authority under statute 13(b) of the statutes or the delegated authority, as the case may be, was directed to dispose of the appeal preferred by Mr. Hore as a special case as early as possible, preferably within a period of one month from date. It was also observed that the order was being made as a special case and may not in any circumstances be treated as a precedent.
14. Aggrieved by the order dated 30th May, 1983, the Principal of the said college and others challenged it in another appeal (FMAT 1655 of 1983).
15. On 6/9th June, 1983, the Pro-Vice Chancellor, CU (being the delegated authority to consider the appeal of Mr. Hore) allowed the appeal, set aside the order of dismissal dated 20th March, 1981 and directed the Governing Body of the said college to pay Mr. Hore 50% of his back salaries. No step, however, appears to have been initiated by Mr. Hore to enforce such order in accordance with law; instead he challenged the order of dismissal dated 20th March, 1981 once again in an appeal before the Vice Chancellor, CU on 29th September, 1983.
16. FMAT 2277 of 1983 and FMAT 1655 of 1983 in due course of time came up for hearing and were heard together by an Hon'ble Division Bench. By a common judgment and order dated 6th February, 1986, the impugned orders dated 31st March, 1983 and 30th May, 1983 were set aside primarily on the ground of Their Lordships being satisfied that the learned judges who made such orders acted in excess of jurisdiction. Their Lordships were of the view that the writ petition [C.O. 11713 (W) of 1981] having been disposed of on 1st December, 1981 finally, no lis survived and, therefore, the learned judges assumed jurisdiction which they did not possess. Their Lordships further recorded that there was nothing to show that notices were served upon the Principal and the members of the Governing Body of the said college before the learned judges had made the orders dated 31st March, 1983 and 30th May, 1983. It was further observed by Their Lordships that it was not within the scope of the two appeals to make any order quashing the appellate decision dated 6/9th June, 1983 of the Pro Vice-Chancellor, CU which had in the meanwhile come into existence by reason of operation of the orders dated 31st March, 1983 and 30th May, 1983; accordingly, liberty was reserved to the appellants (the authorities of the said college) to institute appropriate separate proceedings impugning such appellate decision in accordance with law. Their Lordships also noticed that on 29th September, 1983, Mr. Hore had preferred a fresh appeal against the order of dismissal dated 20th May, 1981 before the Vice Chancellor, CU, which was pending. Since such pending appeal was also not the subject matter of the two appeals, Their Lordships proposed not to express any opinion either about the maintainability or about the merits thereof. It was specifically observed that the order passed on the appeals by Their Lordship would be without prejudice to the rights and contentions of both the parties in respect of the pending appeal before the Vice Chancellor, CU or in any separate writ petition or in the said appeal itself.
17. After disposal of the appeals, the authorities of the said college presented a writ petition [C.O. 5904(W) of 1986] challenging, inter alia, the act of the Vice Chancellor, CU in entertaining the appeal dated 29th September, 1983 preferred by Mr. Hore. The point urged was that Mr. Hore having been dismissed from service prior to the Calcutta University First Statutes, 1979 being made applicable to the said college, no appeal against the order of dismissal could be carried to the Vice Chancellor, CU. On 24th April, 1986, a learned judge of this Court was pleased to pass an order on such writ petition, inter alia, to the effect that the appellate authority may proceed with consideration of the appeal dated 29th September, 1983 and pass the final order but the same shall not be given effect to or communicated to the said college.
18. Aggrieved by the order dated 24th April, 1986, the Principal and members of the Governing Body of the said college challenged it in an appeal (FMAT No.1454 of 1986 : Dwijendra Lal Sarkar & ors. v. Vice Chancellor, University of Calcutta & ors.). On 23rd May, 1986, the same Hon'ble Division Bench (which had the occasion to hear and dispose of the earlier appeals of the said college authorities) was pleased to pass an interim order to the effect that without prejudice to the rights and contentions of both parties, the appellants would be at liberty to submit written statement/comments before the Pro-Vice Chancellor, CU, who has been nominated by the Vice Chancellor, CU, to hear the appeal in question and that though hearing of the appeal may proceed, the appellate authority shall not pass any final order till the disposal of the stay application. The said interim order dated 23rd May, 1986 was confirmed on 4th July, 1986 by the Hon'ble Division Bench and FMAT 1454 of 1986 was disposed of finally by directing that the appellate authority will not pass any final order till the disposal of the writ petition.
19. The Vice Chancellor, CU, despite the restraining order dated 23rd May, 1986, confirmed by the order dated 4th July, 1986, proceeded to consider the appeal of Mr. Hore and in exercise of power conferred by statute 13(b) of the statutes, passed an order on 9th June, 1987 setting aside the order dated 28th May, 1981 dismissing Mr. Hore from service and directed his reinstatement with 50% of the back salary.
20. Mr. Hore, on 10th June, 1987 to be precise, made an attempt to join his post. Since, however, the post vacated by Mr. Hore consequent to the order of dismissal from service dated 20th May, 1981 was filled up on 17th August, 1981 by appointing a Sudip Dutta, the authorities of the said college did not accept his joining. Mr. Hore lodged a complaint with the police on 19th June, 1987 alleging that the said college authorities had refused signing of the attendance register by him. In its turn, the Governing Body of the said college on 3rd December, 1987 resolved that induction of Mr. Hore in the said college was totally undesirable and the same would vitiate the academic atmosphere thereof and the administration would collapse.
21. For the next 15 years or so, there appears to be complete silence maintained by the warring parties. No correspondence by and between Mr. Hore and the authorities of the said college was exchanged. Even, no legal proceeding was instituted by Mr. Hore to enforce the order dated 9th June, 1987 passed by the Vice Chancellor, CU, directing his reinstatement. It could be so that the appellate order dated 4th July, 1986 confirming the earlier order dated 23rd May, 1986 was in force and, therefore, the parties may not have taken steps awaiting disposal of C.O. 5904(W) of 1986, which was pending. However, it appears to be a bit strange that despite the Pro Vice Chancellor, CU by his order dated 6/9th June, 1983 having set aside the order of dismissal, which had not been set aside by any competent court of law, as well as subsistence of the appellate order dated 23rd May, 1986 restraining the Vice Chancellor, CU to pass a final order on Mr. Hore's appeal, the order dated 9th June, 1987 allowing the appeal and directing Mr. Hore's reinstatement came to be made once again. Be that as it may.
22. C.O. 5904(W) of 1986 came up for consideration before a learned judge of this Court on 24th January, 2002. Since none appeared to press the writ petition, the same was dismissed for default and interim order, if any, stood vacated.
23. It was on 29th July, 2008, i.e. 6 years after dismissal of C.O. 5904(W) of 1986 that Mr. Hore through his learned advocate wrote to the said college praying for implementation of the order dated 9th June, 1987 passed by the Vice Chancellor, CU. Learned advocate for the said college wrote back to Mr. Hore on 25th August, 2008. Referring to previous orders passed by this Court from time to time, but without making any mention of the order dated 29th January, 2002, the prayer for resuming/continuing service on the post of clerk-cum-typist was declined.
24. Had Mr. Hore been in service, he would have retired on 31st January, 2011 on attaining the age of superannuation. Even till 31st January, 2011 and/or immediately thereafter, Mr. Hore maintained silence by not seeking to enforce his right by approaching the appropriate forum.
25. Having been declined resumption/continuation in service, Mr. Hore finally woke up from his slumber. He wrote a letter dated 2nd June, 2011 to the Minister-in-Charge, Higher Education Department, Government of West Bengal seeking relief. Such letter was forwarded by the Joint Secretary to the Government of West Bengal, Department of Higher Education to the Principal of the said college on 17th June, 2011 with a request for payment of arrear dues/claim etc. to Mr. Hore considering that he had retired from service on 31st January, 2011.
26. Since the said college did not favourably respond, Mr. Hore by his letter dated 26th July, 2011, referring to the letter of the Joint Secretary dated 17th June, 2011, again requested the Principal of the said college to make necessary payment without any delay; however, no action was taken which resulted in the Assistant Secretary to the Government of West Bengal sending a reminder dated 1st August, 2011 to the Principal of the said college informing him that no response to the letter dated 17th June, 2011 had been received.
27. Referring to the letters dated 17th July, 2011 and 1st August, 2011 received from the concerned secretaries to the Government of West Bengal, the Principal of the said college addressed a letter dated 9th August, 2011 to the Joint Secretary and regretted inability to grant any relief to Mr. Hore for the reasons indicated therein.
28. Correspondence was thereafter exchanged by and between the DPI and the said college to explore the possibility of finding out a solution to the problem. That did not materialize, leading to presentation of W.P. 36478(W) of 2013 by Mr. Hore seeking, inter alia, the following relief:
"a) A Writ of Mandamus commanding the respondents and each one of them i. to act in terms of the order dated 09.06.1987 passed by the Vice-
Chancellor of Calcutta University being the Appellate Authority and to pay the arrear salaries since the petitioner's reinstatement in service till is retirement on 31.01.2011 forthwith:
ii. to direct the respondent College Authority to transmit all relevant documents in respect of the petitioner including his service book in original to the Director of Public Instructions, West Bengal for grant of pension and other benefits payable to the petitioner; iii. to direct the respondents to pay interest at the rate of 12% per annum on the arrear salaries as well as retiral dues from the date it is due till the actual date of payment:
b) A Writ of Certiorari do issue calling upon the respondents to transmit the entire records of the case to this Hon'ble Court and to certify the same so that conscionable justice may be done;"
29. Affidavits having been exchanged, the writ petition was listed for final hearing before the learned judge. On behalf of the said college, the following objections were raised:
a. Mr. Hore had presented the writ petition 26 years after the Vice Chancellor, CU passed the order dated 9th June, 1987 and there being no explanation for the inordinate delay, the writ petition was not maintainable; b. Mr. Hore having been dismissed from service on 28th May, 1981, he had not retired from service and, therefore, question of claiming retiral benefit does not and cannot arise;
c. The appellate order dated 9th June, 1987 of the Vice Chancellor, CU is non-est;
d. Mr. Hore had forged documents to suit his convenience and had annexed the same to the writ petition and this is an additional ground for attracting dismissal thereof;
e. In view of the appellate order dated 23rd May, 1986, confirmed by the subsequent order dated 4th July, 1986, the Vice Chancellor, CU could not have passed the final order on the appeal and, therefore, question of implementing it did not arise;
f. Mr. Hore had suppressed material facts in the writ petition; g. Having regard to the long delay in presentation of the writ petition by Mr. Hore, they were disabled to trace out the old records relating to the service of Mr. Hore and that on this score too, Mr. Hore is not entitled to any relief; and h. Mr. Hore not having a legally enforceable right nor having submitted any demand for justice, the writ petition is not maintainable.
30. Upon hearing the parties, the learned judge was of the view that in the absence of any order passed by a competent Court of law setting aside the order dated 9th June, 1987 passed by the Vice Chancellor, CU, the same could not be labelled as non-est. His Lordship proceeded to record that several opportunities were extended to the said college authorities to produce the orders passed in FMAT 1454 of 1986 but the same could not be produced. The charge of forging document levelled against Mr. Hore by the said college as well as the objection relating to suppression of facts was held not to carry any weight. Referring to the submission made on behalf of the said college by placing reliance on the authorities noted at page 13 of the judgment, His Lordship held that the same did not support the contention of the said college "that the right, title and entitlement" of Mr. Hore to get his service benefit would be evaporated after 26 years or relief could be denied to an employee who was lawfully employed, his order of dismissal set aside and he directed to be reinstated in service. The objection raised on behalf of the authorities of the said college that the writ petition was not maintainable for the inordinate delay, which was unexplained, was overruled. His Lordship also recorded the following finding:
"However, it is true that even in spite of getting the order in favour of the petitioner, the petitioner did not pray for implementation of the order before this Court since 1987 till before the date of filing the writ petition in 2013 but that cannot be a ground for denial of retiral or pensionary benefits to the writ petitioner if his is entitled under law. The conduct of the College authorities are totally illegal and unfair."
31. The aforesaid findings of the learned judge not being palatable, the said college feeling aggrieved have come up in appeal. Mr. Hore not being satisfied with the direction for payment of retiral benefit only, has also presented an independent appeal claiming arrears of pay.
32. By filing a supplementary affidavit in CAN 4391 of 2016, the said college has made certain startling revelations. The case pleaded in such affidavit is that Mr. Hore was a law graduate, who enrolled himself as an advocate under the Advocates Act, 1961 with the Bar Council of West Bengal on 29th June, 1995 vide enrolment no. WB/1072/1995. This assertion has been supported by annexing a writing of the Vice Chairman of the Council dated 20th February, 2017. It is further averred that thereafter, Mr. Hore started practicing as an advocate of this Court. A notice dated 8th August, 2009 issued by Mr. Hore as an advocate on his letter head has been placed on record. A certificate issued by the President of Barrackpur Bar Association dated 15th February, 2017 has also been placed on record certifying that Mr. Hore has been a member of the association and practicing as an advocate at Barrackpore Court since long with sincerity.
33. From the preceding factual narrative, certain strange incidents are indeed worth noticing. We are of the considered view, while hearing the merits of the rival claims, that such incidents cannot be ignored and that the situation calls for a holistic view being taken.
34. First, what has struck us is the nature of the charge-sheet and the fact of completion of disciplinary proceeding against Mr. Hore within 9 days from date of issuance of such charge-sheet. From the appeal filed by Mr. Hore before the Vice Chancellor on 29th September, 1983 and the order passed thereon dated June 9, 1987 (at page 205 of Vol. II of the paper book), it is clear that Mr. Hore was not extended reasonable and adequate opportunity of defence and the disciplinary proceeding against him was conducted in clear breach of principles of natural justice. Completion of a disciplinary proceeding on such serious charges forming part of the charge-sheet without complying with the procedural safeguards and that too within 9 days, has to be accepted with a pinch of salt.
35. Second, challenging the order of dismissal dated 28th May, 1981, Mr. Hore had in accordance with law preferred an appeal before the DPI and by presenting C.O. 11713(W) of 1981 prayed for a direction that such appeal be disposed of within a given time frame. Although the appeal was presented before the appropriate appellate authority, i.e. the DPI, it was because of the order dated 1st December, 1981 in C.O. 11713(W) of 1981 that such appeal was rendered infructuous and Mr. Hore practically left with no forum of appeal to challenge the order of dismissal dated 28th March, 1981. The liberty that was reserved to Mr. Hore to pursue his remedy in accordance with law having regard to the legal position that no appeal would lie before the Vice Chancellor, CU against an order made by the Governing Body of a Government Sponsored College, for all intents and purposes, was an ineffective liberty.
36. Third, the orders dated 31st March, 1983 and 30th May, 1983 were passed by learned Judges in C.O. 11713(W) of 1983 at a time when the same had been finally disposed on 1st December, 1981. The Hon'ble Division Bench set aside such orders on 6th February, 1986 but in the meanwhile Mr. Hore had preferred an appeal before the Vice Chancellor, CU in terms of the order dated 31st March, 1983. The order dated 31st March, 1983 not being in existence, any step taken in pursuance thereof had to be regarded as non-est but was never declared so.
37. Fourth, the Hon'ble Division Bench while disposing of the appeals on 6th February, 1986 was conscious of the fact that Mr. Hore had preferred an appeal before the Vice Chancellor, CU on 29th September, 1983, yet, it was made clear that the order passed on the appeals was without prejudice to the rights and contentions of the parties and that no opinion was being expressed about the maintainability or about the demerits of the said departmental appeal, since it was not the subject matter of the appeals. In hindsight, we do feel that appropriate direction/observation at that stage could have been made to put a quietus to the facts in issue.
38. Fifth, the appeal dated 29th September, 1983 was in fact the second in the series of appeals preferred by Mr. Hore against the order dated 20th March, 1981 dismissing him from service. The previous appeal preferred by him had succeeded before the Pro Vice Chancellor, CU. The occasion for which Mr. Hore had to prefer an appeal before the Vice Chancellor, CU on 29th September, 1983 a second time, has not been explained.
39. Sixth, although the learned judge has not believed the claims of the said college that C.O. 5904(W) of 1986 was filed and challenging the order dated 24th April, 1986 passed thereon an appeal (FMAT 1454 of 1986) was carried whereupon orders were passed, page 46 of CAN 4391 of 2016 is the order dated 29th January, 2002 dismissing C.O. 4904(W) of 1986 for default. Such order records granting of leave to the department by the learned judge, on perusal of an office report dated 14th January, 2002, to make type copy of the order-sheet and to keep the same along with the file. Page 47 of such application is the order dated 24th April, 1986 whereby a learned judge of this Court directed the proceeding of the appeal to continue and that a decision may be made but the same would not be given effect or communicated to the petitioners (said college authorities) till the disposal of the writ petition. Page 48 is a subsequent order dated 30th March, 1988 passed by another learned judge requiring the Principal-cum-Secretary of the said college to remain personally present. These documents have been included in the application to prove that Mr. Hore was represented by his learned advocates in course of hearing of C.O. 5904(W) of 1986 and by feigning ignorance of such a proceeding, he was in fact guilty of suppression by not referring to the same in W.P. 36478 (W) of 2013.
40. Seventh, we have checked up the file of FMAT 1454 of 1986 and the orders dated May 23, 1986 and July 4, 1986 recorded by the Hon'ble Division Bench. There was indeed an order of injunction whereby no final order on the appeal of Mr. Hore could have been passed till disposal of C.O. 5904(W) of 1986, yet, the final order was passed pursuant whereto Mr. Hore made a vain attempt to resume duty on June 10, 1987.
41. Eighth, having been declined resumption and continuation of service pursuant to the order of the Vice Chancellor, CU dated 9th June, 1987 by the said college authorities, Mr. Hore enrolled himself as an advocate in 1995 and acquired the right to practice as such in 1995 and, therefore, may not have felt the urge to have the interim order passed in C.O. 5904(W) of 1986 vacated, or in the alternative, to file an independent writ petition for enforcement of the order of the Vice Chancellor, CU dated 9th June, 1987.
42. Ninth, upon Mr. Hore's dismissal from service, the post of clerk-cum-typist was filled up by appointing the said Sudip Dutta who has also retired from service.
43. Tenth, replying to a query posed by us, Mr. Hore who was present in Court pleaded ignorance of the requirement to notify the Bar Council of West Bengal that he was in service in the said college, as claimed by him, while applying for enrolment.
44. Finally, the claim of the said college authorities of Mr. Hore having joined the legal profession in 1995 has been contested by him by submitting that he had not appeared before any Court prior to 31st January, 2011, that the lawyer's notice forming part of the application was issued by him for the purpose of his bare survival, having not received a penny from the said college after the order of dismissal from service was set aside by the Vice Chancellor, CU.
45. From the above, it is clear that Mr. Hore, entangled in legal niceties, has been a victim of circumstances. Notwithstanding the fact that the order of dismissal dated 20th March, 1981 is not directly and substantially a matter in issue in these appeals, it is difficult to accept the position that a duly conducted disciplinary proceeding could end within 9 days of issuance of charge-sheet upon affording reasonable and adequate opportunity of defence. There can be little doubt that Mr. Hore may have been justified in expressing a grievance that he had been denied natural justice.
46. It is also true that the appeal preferred by Mr. Hore before the Vice Chancellor, CU on 29th September, 1983 (the second in the series) may not have been maintainable in law as the first appeal which Mr. Hore had preferred (which ultimately the Pro- Vice Chancellor, CU had been entrusted to decide, was actually decided by an order of 6/9th June, 1983) on the ground that no appeal lay before the Vice-Chancellor, CU and it was the DPI who was then the appropriate appellate authority. However, the fact remains that with the dismissal of C.O. 5904(W) of 1986 for default, the challenge of the said college authorities to entertainment of the appeal of Mr. Hore (the second in the series) by the Vice Chancellor, CU fizzled out and consequently, the order dated 9th June, 1987 passed by the Vice Chancellor, CU survived any likely onslaught of the said college authorities that could have been laid by presenting an independent writ petition. Any challenge to the order dated 9th June, 1987 could not have been raised by the said college authorities in course of hearing of W.P. 36478(W) of 2013 by reason of dismissal of C.O. 5904 (W) of 1986, where such order could have been assailed by amending the writ petition. Having so observed, the conduct of Mr. Hore is also not beyond reproach. Although he had contested C.O. 5904(W) of 1986, he did not disclose such fact in W.P. 36478(W) of 2013. Nearly quarter of a century after the order dated 9th June, 1987 was passed by the Vice Chancellor, CU, and more than two years after the date of his scheduled superannuation, had he continued in service, Mr. Hore presented W.P. 36478 (W) of 2013 in November, 2013 primarily for monetary relief.
47. It is immaterial as to whether Mr. Hore actually practiced or not; what is material is that with his enrolment with the Bar Council of West Bengal, Mr. Hore acquired the right to practice. Having acquired such right, Mr. Hore could claim no right to remain in service. Not having denied his enrolment, Mr. Hore cannot in law claim any service benefit post such enrolment.
48. We are of the considered view that the learned judge by declining arrears of pay claimed by Mr. Hore for the period between 21st March, 1981 and 31st January, 2011, when Mr. Hore did not work at all, did not commit any error. We are also of the considered view, having regard to the facts and circumstances of Mr. Hore having acquired the right to practice by obtaining enrolment in 1995 and that too without disclosing that he is a service holder (which has been his version all throughout) disentitles him to any retiral benefit as directed by the learned judge.
49. The judgment and order impugned, insofar it directs release of pensionary and other benefits in favour of Mr. Hore, is indefensible for reasons discussed above and, accordingly, stands set aside. However, in the peculiar facts and circumstances of this case, we hold and direct that Mr. Hore shall be entitled to Rs.3 lakh on account of compensation for the wrong to which he has been subjected by the said college by dismissing him in no time within 9 days of issuance of the charge-sheet. The DPI as a very special case shall take steps to release such sum in favour of Mr. Hore as early as possible but not later than 2 months of receipt of a copy of this judgment and order.
50. FMA 2402 of 2015 and the connected applications stand disposed of. MAT 578 of 2015, however, stands dismissed.
51. The parties shall bear their respective costs.
52. Photo copy of this judgment and order duly signed by the Assistant Court Officer, shall be retained with the record of MAT 578 of 2015.
Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.) SAHIDULLAH MUNSHI, J. :
I agree.
(SAHIDULLAH MUNSHI, J.)