Calcutta High Court (Appellete Side)
Sahajuddin Mistry vs The State Of West Bengal & Ors on 20 June, 2023
1
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
WP.ST 413 of 2010
Sahajuddin Mistry
Vs.
The State of West Bengal & Ors.
For the petitioner : Mr. Robin Kumar Gharai
Ms. Soma Chakraborty
For the State : Ms. Chaitali Bhattacharjee
Mr. Manas Kumar Sadhu
Heard on : June 20, 2023
Judgment on : June 20, 2023
DEBANGSU BASAK, J.:-
1.
Petitioner is aggrieved by an order of dismissal dated March
22, 2010 passed by the West Bengal Administrative Tribunal
in OA-710/2000.
2. Learned Advocate appearing for the petitioner submits that,
the petitioner was imposed a punishment which was
disproportionate to the articles of charges. He submits that,
in the event disproportionate punishment is imposed, and
the same is shocking to the conscience of the Court, a Writ
Court can intervene. In support of such contention, he relies
upon AIR 2000 Supreme Court 1151 (U.P. State Road
Transport Corporation and others. Vs. Mahesh Kumar Mishra
and others) and (1998) 3 Supreme Court Cases 192 (Colour-
Chem Ltd. Vs. A.L. Alaspurkar & Ors.).
3. Learned Advocate appearing for the writ petitioner draws the
attention of the Court to the materials-on-record. He
submits that, the writ petitioner as a constable was being
proceeded against on the basis of the so-called 156 days of
unexplained absence. He submits that, the entirety of the
family members of the writ petitioner were unwell over a
period of time which resulted in the writ petitioner being
absent from his duty for 157 days. He draws the attention of
the Court to the averments made at different stages in that
regard.
4. Learned Advocate appearing for the writ petitioner draws the
attention of the Court to the order of the Superintendent of
Police. He submits that, the Superintendent of Police
directed the 157 days' absence to be regularized through
extraordinary leave. Once the absence was directed to be
regularized by way of adjustment of extraordinary leave then
the question of the writ petitioner being punished for the
absence does not arise.
5. Learned Advocate appearing for the writ petitioner refers to
the police regulations and submits that, two types of
punishments are contemplated in a disciplinary proceeding,
namely, minor and major. In the facts of the present case
according to him, imposition of minor punishment would
suffice.
6. Learned Advocate appearing for the State draws the
attention of the Court to the materials-on-record. She
submits that, the petitioner was a police constable and a
member of disciplined force. He was found absent on
repeated occasions spanning over a period of 157 days. His
absence for 157 days remained unexplained by cogent
evidence. The direction of the Superintendent of Police with
regard to adjustment of the 157 days towards extraordinary
leave was for the purpose of calculating the pay package that
the petitioner would be entitled to upon dismissal of service.
It is not to be confused with the punishment imposed.
Adjustment of unexplained absence with the extraordinary
leave should not be confused with regularization of the
absence.
7. We perused the materials made on record. We find that the
petitioner was working as a constable with the West Bengal
police. The petitioner was found absent over a period of
time. A charge sheet as against the petitioner was issued on
December 26, 1997 for unauthorized absence for 157 days
during the period from April 4, 1998 to September 6, 1998.
8. On May 20, 2014, a finding of the Enquiry Officer was
submitted to the disciplinary authority. The disciplinary
authority found the writ petitioner guilty of the charges. The
disciplinary authority passed a final order dated October 31,
1999 imposing a punishment of discharge from service on
the petitioner.
9. Petitioner preferred an appeal from the order of the
disciplinary authority on March 3, 2000. The disciplinary
authority rejected such appeal on March 23, 2000. The
petitioner moved the West Bengal Administrative Tribunal by
way of an original application being OA-710/2000. By the
impugned order dated March 22, 2010, the Tribunal did not
find any merits in the original application of the writ
petitioner and dismissed the same.
10. The writ petitioner was heard in the departmental
proceedings. It is not the contention of the writ petitioner
that the articles of charges was vague or that the disciplinary
proceedings stood vitiated by breach of principles of natural
justice. There is an Enquiry Officer's report. There is also
an order passed by the disciplinary authority. The order of
the disciplinary authority contains reasons. It finds the writ
petitioner to be absent for 157 days for the period from April
4, 1998 to September 6, 1998. The disciplinary authority
finds that such leave remained unexplained by the writ
petitioner. As a constable of a disciplined force, the writ
petitioner was required to report for his duty. At least he
was required to explain for his unauthorized absence from
service. The writ petitioner failed on both the counts. The
order of the disciplinary authority contains a direction for
adjustment of the unexplained absence from service for 157
days towards extraordinary leave. In our view, such a
direction is not a condonation of the absence of the writ
petitioner but a direction upon the authorities for the
purpose of calculating the emoluments the writ petitioner
would be entitled to upon the final order of punishment
coming into effect.
11. The writ petitioner preferred an appeal from the order of the
disciplinary authority. The appellate authority concurred
with the view that the disciplinary authority. It cannot be
said that, the order of the appellate authority is vitiated by
breach of principles of natural justice. The order of the
appellate authority also contains reasons.
12. Before the West Bengal Administrative Tribunal, the writ
petitioner canvassed various points which were discussed
and negated. Nothing is placed on record to suggest that
any portion of the impugned order is perverse. The
impugned order also contains reasons.
13. Mahesh Kumar Mishra (supra) and Colour-Chem Ltd.(supra)
are of the view that, where the punishment imposed on the
delinquent is shocking and it shocks the conscience of the
Court then the Court is empowered to intervene.
14. In the facts of the present case, the petitioner was awarded a
punishment of discharge from service for unexplained
absence of 157 days over a period from April 4, 1998 to
September 6, 1998. The petitioner was engaged as a
constable in a disciplined force. His unauthorized absence
over such a period of time will affect the discipline of the
force. Therefore, in such factual matrix, it cannot be said
that, the punishment imposed was disproportionate to the
articles of charges proved in the disciplinary proceeding as
against the writ petitioner.
15. In such circumstances, we find no merit in the present writ
petition.
16. WP.ST 413 of 2010 is dismissed without any order as to
costs.
(Debangsu Basak,J.)
17. I Agree.
(Md. Shabbar Rashidi, J.)
