Calcutta High Court (Appellete Side)
Himangshu Manna @ Himangshu ... vs The State Of West Bengal & Ors on 3 November, 2021
Form No. J(1)
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Jay Sengupta
W.P.A. 17400 of 2021
Himangshu Manna @ Himangshu Sekhar Manna
-Vs-
The State of West Bengal & Ors.
For the petitioner : Mr. Billwadal Bhattacharyya,
Mr. Rajdeep Majumder,
Mr. Mayukh Mukherjee,
Ms. A. Bajaj.
For the State : Mr. Tapan Kumar Mukherjee,
Mr. Pinaki Dhole,
Mr. Rajat Datta.
For the Municipality : Arun Kumar Das.
Heard on: 03.11.2021.
Judgment on: 03.11.2021.
Jay Sengupta, J. :
This is an application seeking a direction upon the
Municipal Authorities for allowing the petitioner to join his service
with them.
2
Affidavit-of-service filed in behalf of the petitioner is taken
on record.
Report filed by the Chairperson of the Board of
Administrators as filed on behalf of the State is also taken on
record.
Learned counsel appearing on behalf of the petitioner
submits as follows. The petitioner is a sanitary inspector at Contai
Municipality. A criminal case was initiated against the petitioner
on 1st July, 2021. Because of this, the petitioner was unable to
attend work for sometime. Subsequently, this Court stayed the
criminal proceeding as against the present petitioner by an order
dated 4th October, 2021. In the meantime, the Municipal
Authorities, by a show cause notice dated 4th September, 2021,
asked the petitioner to explain the reason for his not joining service
and directed him to appear on 5th October, 2021 with the
explanation. The petitioner wrote a letter dated 23rd September,
2021 expressing his willingness to join service at the earliest. In
spite of this, the Municipal Authorities did not allow the petitioner
to join his work. This is despite the fact that there is no
suspension order whatsoever passed in this regard. In fact, no
disciplinary proceeding has yet been initiated against the
petitioner.
3
Learned senior counsel appearing on behalf of the State
submits as follows. It is true that no disciplinary proceeding has
yet been started against the petitioner. However, the petitioner was
asked to show cause about his unauthorized absence. The
explanation given by him was not supported by any document and
an opportunity has been given to him to explain the circumstances.
Instead of availing of the same, the petitioner has moved this
Court. Section 61 of the West Bengal Municipal Act and Rule 25 of
the West Municipal (Employees' Service) Rules, 2010 govern the
issue of unauthorized absence and its consequences.
Learned counsel appearing on behalf of the Municipal
Authority adopts the submissions made on behalf of the State.
Learned counsel further submits that the Board of Administrators
of the Municipal Authority is in seisin of the issue of the
petitioner's rejoining in the work.
I have heard the submissions of the learned counsels
appearing on behalf of the parties and perused the writ application
and the report filed on behalf of the State.
It is an admitted position that no disciplinary proceeding
has been started against the present petitioner as yet. No order of
suspension has been passed against the petitioner either.
4
In the present context, it is germane to quote the relevant
portions of Rule 25 of the West Bengal Municipal (Employees'
Service) Rules, 2010 :-
" .....
(3) Wilful absence from duty after expiry of the leave
renders an employee liable to disciplinary action.
.....
Note 2. Action for unauthorized absence from duty
or/for overstay of leave.
(i) When an employee applies for leave beyond the
prescribed limit of extra-ordinary leave and the leave
sanctioning authority is not satisfied with the
genuineness of the grounds on which further leave
has been asked for, nor does it consider the ground
as exceptional, the leave cannot be granted. In such
a case the employee shall be asked to rejoin duty
within a specified date, failing which he would render
himself liable to disciplinary action. Disobedience of
orders to rejoin duty within the specified period
would afford good and sufficient reasons for initiating
disciplinary action. If he rejoins duty by the
stipulated date he may be taken back in service and
the period of absence not covered by leave would be
treated as overstay, and such overstay shall be
regularized in accordance with the provisions of this
rule.
If the employee does not join duty by the stipulated
date, it would be open to the disciplinary authority to
institute disciplinary action against him. If during the
course of disciplinary proceeding he comes for
rejoining duty he shall be allowed to do so without
prejudice to the disciplinary action already initiated
against him (unless he is placed under suspension),
and disciplinary action shall be concluded as quickly
as possible. The question of regularization of the
period of overstay of leave shall be left over for
consideration till the finalization of the disciplinary
proceedings.
(ii) If an employee absents himself abruptly, or applies
for leave which is refused in the exigencies of
municipal service and shall happen to absent himself
from duty, he shall be informed about the
consequences viz. That the entire period of absence
shall be treated as unauthorized absence entailing
loss of pay for the period in question which shall be
resulting to discharge from his service after
completion of the period prescribed in sub-rule (1) of
this rule. If however, he reports for duty before or
after initiation of disciplinary proceedings, he may be
taken back for duty because he was not placed
under suspension. The disciplinary action may be
concluded and the period of absence treated as
unauthorized absence resulting in loss of pay and
allowances and such service shall not be counted
within the service qualifying for Pension, Gratuity etc.
......"
Therefore, it is evident that if an employee does not join
duty by a stipulated date, the disciplinary authority shall be at
liberty to institute an appropriate proceeding. However, if during
the disciplinary proceedings he comes for rejoining duty, he shall
be allowed to do so without prejudice to the disciplinary action
already initiated against him (unless he is placed under
suspension).
In fact, the Rule also entails that after initiation of
disciplinary proceeding he may be taken back in duty because he
was not placed under suspension.
In the present case, it is admitted by the parties that there
is no order of suspension passed against the petitioner. No
disciplinary proceeding has been started against him either.
Unless the petitioner is placed under suspension, there is
no provision which warrants keeping him away from work.
It also appears from the records that the issue of the
petitioner's rejoining work has remained pending for long.
In view of the above, the present application is disposed of
with the direction upon the Municipal Authorities to allow the
petitioner to rejoin his employment with the Municipality forthwith.
However, it shall be open to the concerned Municipal Authorities to
take appropriate action as regards the absence of the petitioner
from work in accordance with law.
As the affidavits are not called for, the allegations made in
the writ petition are not admitted by the parties.
Urgent photostat certified copy of this order, if applied for,
be supplied to the parties subject to compliance with all requisite
formalities.
(Jay Sengupta, J.)
