Calcutta High Court (Appellete Side)
Dr. Gautam Kumar Ghosh vs State Of West Bengal & Others on 2 September, 2016
Author: Nishita Mhatre
Bench: Nishita Mhatre
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19 02.09.16
rpan Ct. No.17
W.P.S.T. No. 395 of 2013
Dr. Gautam Kumar Ghosh
Vs.
State of West Bengal & Others
Mr. Ziaul Islam
... for the Petitioner.
Mr. Tapan Kumar Mukherjee
Mr. Nilotpal Chatterjee
... for the State-Respondents.
The instant writ petition has been preferred challenging the judgment dated 17th May, 2013 passed by the learned Tribunal in O.A. 87 of 2011.
Records reveal that the petitioner was initially appointed as a Medical Officer under the Department of Health and Family Welfare on 11th August, 1980. While working in the said post at Purulia Deben Mahato Hospital, the petitioner made an application for earned leave for the period from 17th May, 1994 to 2nd March, 1995. Such prayer was allowed. Subsequent thereto, the petitioner could not resume his services allegedly for his father's ailments. By a representation dated 2nd January, 2006, the petitioner prayed for resumption of his services. Responding to such representation, the respondent no.4 by a letter dated 9th January, 2006 asked the petitioner to furnish the medical certificates pertaining to his father's ailments. Thereafter the petitioner made a further representation on 28th June, 2006 stating, inter alia, that he did suffer from carcinoma larynx and that he had recovered subsequently and that accordingly he wants to resume his duties in a nearby locality. By a further representation 2 dated 8th March, 2007 the petitioner prayed for voluntary retirement with effect from 8th June, 1999 and expressed his desire to tender resignation on and from 8th June, 1999 if either resumption or voluntary retirement is not possible. Thereafter by a memorandum dated 20th September, 2007 the respondent no.2 issued a charge-sheet against the petitioner which culminated in an order of dismissal on 15th June, 2010 and the petitioner's prayer for revision was also rejected by an order dated 1st November, 2010. Aggrieved thereby, the petitioner approached the Tribunal challenging the said order of dismissal dated 15th June, 2010 together with a prayer for consideration of his application for voluntary retirement. Upon contested hearing, the said original application was dismissed by the judgment impugned in the instant writ petition.
In connection with the present writ petition, the petitioner has filed a supplementary affidavit stating, inter alia, that he last received his monthly salary on 12th May, 1994 and on 27th October, 1995 he was paid an amount of Rs.44446/- as leave encashment.
Mr. Islam, learned advocate appearing for the petitioner submits that the initial period of absence from 17th May, 1994 to 2nd March, 1995 was allowed by grant of earned leave but due to his father's ailments and as he was suffering from the dreaded disease of cancer, he could not resume his duties and his repeated representations for further leave were not considered by the authorities. His subsequent representations for resumption of duties were also not considered by the authorities. As his claim was kept in abeyance, he made a representation on 8th March, 2007 praying for voluntary retirement with effect 3 from 8th June, 1999 and he also stated that in the event such prayer cannot be accepted, he was willing to tender his resignation. Without considering such prayer, the respondent no.2 issued a charge sheet on 20th September, 2007 and he was abruptly dismissed by an order dated 15th June, 2010. A disciplinary proceeding was initiated against the petitioner at the fag end of his career with a vindictive intent to remove him from his service. Such sequence of fact was not taken into consideration by the learned Tribunal at the time of delivery of the impugned judgment.
He further argues that without replying to the prayer for voluntary retirement and after expiry of a period of three months from the date of submission of the application for voluntary retirement, the disciplinary proceeding could not have been initiated against the petitioner in terms of the provisions of West Bengal Service Rules. In support of such argument reliance has been placed upon the judgments delivered in the case of Dinesh Chandra Sangma -vs- State of Assam and others, reported in AIR 1978 SC 17 and in the case of Union of India and others -vs- Sayed Muzaffar Mir, reported in AIR 1995 SC 176.
Per contra, Mr. Mukherjee, learned advocate appearing for the State respondents submits that the records would reveal that the petitioner had been continuously absent from his service on and from the year 1995. Had the petitioner been suffering from severe ailments and had it been his intent to avail voluntary retirement, he could have approached the authorities within a reasonable time thereafter. The petitioner was absent from his duties for a 4 period of more than 12 years and that he could not have applied for voluntary retirement while he was absent from his service without sanctioned leave. The petitioner was given appropriate opportunity to contest the disciplinary proceeding and there is no infirmity in the decision making process and the Tribunal had rightly rejected the petitioner's claim.
Heard the learned counsels appearing for the respective parties and considered the materials on record.
Indisputably the petitioner did not resume the services on and from the year 1995. In the representations submitted by the petitioner during the period from 1996 to 1999, which are annexed to the writ petition at pages 41-73, there is no statement to the effect that the petitioner himself was suffering from cancer. After being absent for more than ten years, the petitioner made the first representation seeking resumption of duties on 2nd January, 2006. In the said representation there is no statement to the effect that the petitioner was suffering from any severe ailment. In the subsequent representation dated 28th June, 2006 the petitioner made a statement that he did suffer from cancer but he had subsequently recovered. Though the authorities stopped disbursement of salaries after May, 1994, no steps were taken by the petitioner and he continued to remain absent from his services.
The judgments delivered in the case of Dinesh Chandra Sangma (supra) and Sayed Muzaffar Mir (supra) are distinguishable on facts inasmuch as in the said judgments neither the employees were absent for a continuous period of 5 more than 12 years nor they were absenting from duties at the time of submission of the application for voluntary retirement.
The petitioner's argument to the effect that the disciplinary proceeding could not have been initiated against him in terms of the provisions of West Bengal Service Rules, after expiry of a period of three months from the date of submission of the application for voluntary retirement was rightly discounted by the learned Tribunal in the backdrop of the fact that the petitioner's prayer for voluntary retirement was neither unequivocal nor unconditional and on the date of submission of such representation for voluntary retirement the petitioner was absent without sanctioned leave. Furthermore, the petitioner prayed for such voluntary retirement on 8th March, 2007 retrospectively with effect from 8th June, 1999. The petitioner was continuously absent from his services for a period of more than twelve years and from such conduct it is explicit that the petitioner was extremely negligent and was never desirous of continuing in service. The disciplinary proceeding was conducted in strict consonance with the statutory provisions and upon granting appropriate opportunity to the petitioner to contest the same.
The learned Tribunal, upon dealing with all the factual issues arrived at specific findings and we do not find any error in the same. The judgment stands fortified with cogent reasons. The scope of judicial review is very narrow and limited and such jurisdiction should be exercised sparingly and only in appropriate cases where the judicial conscience of the Court dictates. The impugned judgment does not suffer from any jurisdictional error or any substantial failure of justice or any manifest injustice warranting interference of this Court.
For the reasons discussed above, we do not find any reason to interfere with the judgment impugned. The writ petition is, accordingly, dismissed.
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Urgent photostat certified copy of this order, if applied for, be supplied to the parties, upon compliance of all requisite formalities as expeditiously as possible.
(Nishita Mhatre, J.) (Tapabrata Chakraborty, J.)