Calcutta High Court (Appellete Side)
(Smt. Mamata Maity (Mondal) vs State Of West Bengal ) on 5 July, 2011
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
5.7.2011
Sl. no.10. WPST 282 of 2010
(Smt. Mamata Maity (Mondal)-vs- State of West Bengal )
& Ors.
Mr. Ashok De
Mr. Salil Kumar Maiti ...for the petitioner
Mr. Pradyumna Sinha
Mrs. Chaitali Chatterjee ...for the respondents
The petitioner was a Nurse working at Primary Health Centre, Bhupatinagar, Mugberia Block, Purba Medinipur. She was issued an order of transfer vide Memorandum dated December 18, 2006 asking her to join S.S.K.M Hospital at Kolkata. She challenged the order of transfer on the ground that she had family problem, because of her ailing husband, as also the order of transfer was issued without following the norms and required criteria prescribed for transfer. She approached the Tribunal. The Tribunal passed an order of status quo, while admitting the petition on February 12, 2007. The order of status quo was passed ex parte with liberty to the parties to apply for variation or modification and/or cancellation upon notice to the other side.
The State never approached the Tribunal for vacating the said order, at least we are not aware of it. The matter came up for final disposal in 2009. The Tribunal vide order dated May 8, 2009 asked the petitioner to join her transferred post with liberty to make representation for her re-transfer to any place of her choice. At the time of 2 hearing the Tribunal observed, "we very much appreciate the points taken by Mr. Talukdar that State should follow the guidelines of transfer and, in fact, the spirit of the decision of the Division Bench of the Hon'ble High Court at Calcutta, was that effect." The Tribunal was thus satisfied with the case made out by the petitioner, however, granted her liberty to make further representation. The State for the first time, contended before the Tribunal that the order of status quo was meaningless, as by the time the order had been passed, she had already been released by her work place, where she had been posted prior to her transfer. The Tribunal asked the authority to regularize her absence. In terms of the order of the Tribunal the petitioner joined S.S.K.M. Hospital and is working there for last two years. She also made representation for her re- transfer, which is yet to be considered. The authority directed regularization of her leave vide reasoned order dated December 4, 2009 appearing at pages 87-88 of the petition. The Director, Health Service directed her leave to be regularized and at the same time, asked her to face a disciplinary proceeding for her unauthorized absence.
The petitioner approached the Tribunal again challenging the disciplinary proceeding, which was initiated by the authority in terms of the direction of the Director, Health Services. The Tribunal disposed of the application by observing that since the petitioner did not chose to appear before the Hearing Officer, the order 3 passed ex parte could not be assailed. The Tribunal did not find any illegality or impropriety on that score, and in our view, very rightly. The Tribunal however, declined to interfere with the disciplinary proceeding on the ground that such statutory right could not be taken away. Hence, this application before us.
We have heard Mr. Ashok De, learned Senior Counsel appearing for the petitioner and Mr. Pradyumna Sinha, learned counsel being assisted by Mrs. Chaitali Bhattacharya, learned Counsel appearing for the State.
In our view, the Director while passing the reasoned order, misconstrued the order of the Tribunal. When an order of the court is asked to be implemented by the authority and the authority acts upon the same, they should act in its true letter and spirit. From the facts narrated above, we find that at the time of admission of the petition, the Tribunal passed an order of status quo vide order dated February 12, 2007. The Tribunal granted liberty to the respondents to ask for variation and/or modification and/or cancellation of the said order. The State did not do so. The State also did not inform the Tribunal contemporaneously that the order of status quo being enjoyed by the petitioner was meaningless in view of the order of release, which had already been passed prior to passing of the said order by the Tribunal. The petitioner was under the misconception that she would not be required to join her transferred post in view of the order of 4 status quo. Hence, her absence at S.S.K.M. Hospital could not be said to be intentional, although it might be termed unauthorized. The Tribunal considered the issue and asked the authority to regularize her leave. It is true that the Tribunal cannot pre-empt the authority from proceeding against the petitioner. It is at the same time true that the authority should act fairly and dispassionately considering the peculiarity involved in the case. The authority, in our view, should not have initiated disciplinary proceeding. The petitioner was absent for a long time. In course of regularization of her leave as per Leave Rules, her pending leave must be adjusted and even after adjustment of the permissible leave, if it is found that she is having further absence, such absence may be regularized as extraordinary leave without any pay as per Leave Rules. In effect, for such unauthorized absence, she would be deprived of her salary for a substantial part of such period. The proceeding against her departmentally in a disciplinary proceeding in the facts and circumstances of the present case, would be too harsh. Mr. Sinha has tried to contend that mere initiation of disciplinary proceeding does not amount to imposition of penalty. The authority might exonerate her from the charges. The reason for her absence is known to us as discussed above. Nothing further would reveal, if a regular enquiry is directed to be conducted. Pendency of the disciplinary proceeding would 5 unnecessary create worries, anxieties and agonies to the petitioner, which were not contemplated.
The petition thus succeeds to the extent that the disciplinary proceeding initiated by the State as against the petitioner for her unauthorized absence, is quashed along with the charge-sheet and further steps taken therein. The leave, as directed to be regularized by the Director of Health Services, should be regularized at an early date, if not already done. Such regularization must be done strictly in accordance with the Leave Rules.
The authority may consider her representation for re-transfer dispassionately and if possible, by passing a reasoned order upon giving personal hearing to the petitioner.
Since the issue is pending for long time, we would expect that the authority would act expeditiously.
We abundantly make it clear that the authority would be free to decide her representation without being influenced by any of the observations made by the Tribunal in its earlier order or by foregoing judgment and order and the authority would be free to pass appropriate order considering the factual matrix involved therein.
WPST 282 of 2010 is disposed of accordingly without any order as to costs.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis. 6 (Ashim Kumar Banerjee,J.) (Dr. Mrinal Kanti Chaudhuri,J.)