Calcutta High Court (Appellete Side)
State Of West Bengal & vs Debabrata Singha & Anr on 20 March, 2014
Author: Nishita Mhatre
Bench: Nishita Mhatre
1
20.03.14
Item No. 23
Ct. No.17
AB
WPST 596 of 2003
In the matter of : State of West Bengal &
Ors.
- versus -
Debabrata Singha & Anr.
Mr. Tapan Kumar
Mukherjee
Ms. Sudipa Roy
Mr. Manas Kumar Sadhu
....for the petitioners
Mr. Angshumoy Guha
Ms. Ananya Neogi
.....for the Respondent
The State and its Officers have challenged the decision of the West Bengal Administrative Tribunal in O.A. No. 6039 of 1998. By the impugned judgment which was delivered on 28.3.2003 the Tribunal has held that the Petitioners have no authority to restrain the Respondent No. 1 from working without taking recourse to any legal procedure laid down in the West Bengal Service Rules, Part - I or West Bengal Services (Classification, Control and Appeal) Rules, 1971. The Tribunal has directed the Petitioners to forthwith permit the Respondent No.1 to join duties in Dr. B. C. Roy Memorial Hospital for Children and to allow him to continue in that position till he is lawfully removed from service under due process of law. The Tribunal has further directed the Petitioners to release his monthly salary from the date when it was withheld.
Aggrieved by that order, the Petitioners approached this Court by filing the present petition in 2003. The petition was admitted on 22nd August, 2003 and the impugned order was stayed.
2The respondent No. 1 had approached the Tribunal because he was not permitted to work after being made permanent in service. According to him he was appointed in 1975 as a General Duty Attendant in the Panihati State General Hospital. He was later transferred to another hospital on 25.01.1984. He was invited for an interview to ascertain whether he was qualified for permanent absorption as a Group 'D' staff. The respondent claims that he was successful and, therefore, his status was changed from casual worker to temporary employee at the Panchagram PHC, 24 Parganas on 09.2.1984. He was then transferred to Baranagar State General Hospital on 07.12.1984 after which he was directed to work in the Dr. B. C. Roy Memorial Hospital for Children from 28.2.1986. The respondent claims that although he was confirmed as a permanent employee by an order of 17.11.1987 he was restrained from performing his duty with effect from 29.07.1998. He was also not permitted to sign the attendance register nor was any action taken against him to terminate his service. Being aggrieved by the conduct of the Petitioners, the respondent approached the Tribunal.
The main contention of the Petitioners before the Tribunal was that the respondent had obtained employment on the basis of forged documents and a criminal case was pending against him in that regard. According to the Petitioners, there was no record at all with them indicating that the respondent had been invited for an interview or that he had worked in the Panchagram PHC. On scrutiny of the service book of Group 'D' staff by the team from the Dr. B. C. Roy Memorial Hospital for Children it was detected that few persons including the respondent have joined service on the basis of fake documents. Their salary was stopped and criminal action was initiated against them.
3The Tribunal, as we have already noted, held that the Petitioners were guilty of violating their rules by not following the principles of natural justice. The Tribunal found that the Petitioners had not taken action against the respondent in accordance with the West Bengal Civil Service Rules or the West Bengal Services (Classification, Control and Appeal) Rules and had merely restrained him from attending service.
Mr. Mukherjee, the learned Counsel appearing on behalf of the Petitioners draws our attention to the fact that the impugned judgment has been decided by only one member of the Tribunal. He submits that in view of the decision in the case of Mithu Mondal Vs. State of West Bengal & Ors. reported in 2012 (1) CLJ (Cal) 518, the impugned judgment must be set aside and the Original Application should be remanded for a fresh hearing.
This is an Original Application of 1998. The impugned order was passed in 2003. No ground regarding the jurisdiction of the Tribunal has been raised in the petition by the Petitioners. This petition has been dismissed on 11.12.2012. The application for restoration was also dismissed on 05.9.2013. Thereafter the Petitioners moved an application and on 19.2.2014 the Writ Petition was restored. Therefore, we do not find it appropriate to remand the Original Application at this stage to the Tribunal for a fresh hearing for more than one reason.
The termination of service occurred in 1998 and the respondent No. 1 has been out of service since then. There is no dispute that the Petitioners did not terminate the services of the respondent. They prevented him from working and signing the attendance register without holding a departmental enquiry. It may be the case of the Petitioners, as argued by Mr. Mukherji, that the respondent No.1 was never their employee and that he had obtained employment on the basis of 4 fake documents. However, there is no dispute that the Petitioners did pay salary to the respondent from 1975 to 1998. Assuming the respondent had secured employment with the Petitioners on the basis of fake documents, it was necessary for the Petitioners to hold a departmental enquiry and to prove the charges levelled against the respondent No. 1. An employee cannot be thrown out of service without holding a departmental enquiry. These Petitioners would have to prove that in the departmental enquiry the respondent had rendered service from 1975 to 1998 on the basis of fake documents and that, therefore, he could not be continued in service. Even though the misconduct as alleged against the respondent may have been detected by the State after several years it was till necessary for the State to hold a departmental enquiry before terminating the service of the employee. By not permitting the employee to sign the attendance register to attend work, it could be deemed that the State had terminated the service of the employee especially since there was no order of suspension issued to the respondent No. 1.
In our opinion, therefore, it would be futile to remand the matter to the Tribunal at this stage. However, we leave it open to the Petitioners to take action against the respondent in accordance with law. Such action if any, will be initiated by the State by 15th of July, 2014. Till then the respondent will not be entitled to join duty or to arrears or salary or consequential benefits.
However, we make it clear that if the Petitioners do not initiate action by the aforesaid date, it will be presumed that they do not want to take any action against the respondent No.1. In that event, the respondent shall be reinstated in service with continuity and full back wages and all other consequential benefits.
While deciding whether to take action against the respondent, the State shall bear in mind the decision of the Judicial Magistrate, 1st 5 Court, Sealdah, 24th Parganas dated 31st July, 2008 where the respondent No. 1 has been acquitted in G.R. Case No. 2129 of 1998 of the charges under Sections 467/468/471/420/120B of the I.P.C. The observations made by the Tribunal or by us shall not influence the result of an enquiry, if any, initiated against respondent No. 1.
In the result the impugned order of the Tribunal is set aside.
The petition is disposed of with no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties upon compliance of all necessary formalities.
(Nishita Mhatre, J.) (Tapash Mookherjee,J.)