The State Of West Bengal & Anr vs Basudeb Mukherjee
2023 Latest Caselaw 1825 Cal

                                                                         1


                  IN THE HIGH COURT AT CALCUTTA

                CONSTITUTIONAL WRIT JURISDICTION

                              APPELLATE SIDE



Present:

THE HON'BLE JUSTICE HARISH TANDON
              &
THE HON'BLE JUSTICE PRASENJIT BISWAS



                                WPST 2 of 2023


                      The State of West Bengal & Anr.

                                     Vs.
                              Basudeb Mukherjee



Appearance:



For the Petitioners/State :     Mr. Biswabrata Basu Mallick, Adv.

                                Mr. Sanjib Das, Adv.

For the Respondent        :     Mr. Bikash Ranjan Neogi, Adv.

Ms. Soma Chakraborty, Adv.

Ms. Ananya Neogi, Adv.

Mr. Guddu Singh, Adv.

Judgment On               :     20.03.2023




PRASENJIT BISWAS, J.:

The instant writ application is filed challenging the impugned order

dated 02.09.2022 passed by the State Administrative Tribunal in O.A.

No.1460 of 2013, whereby the Tribunal set aside and quashed Order no. 30-

P & AR (Vig.) dated 11.01.2008.

The matter was remanded back by the Tribunal to the disciplinary

authority with a direction to serve the copy of the Public Service

Commission advice to the respondent before passing of final order.

Being aggrieved by and dissatisfied with the impugned order passed

by the Tribunal the petitioners have preferred this instant application.

The facts and circumstances giving rise to this case are that the

respondent while was in Government Service faced a criminal case and was

arrested and detained in police custody which resulted his suspension.

Against the continuation of suspension, this respondent knocked the door

of the Tribunal by filing application which was disposed of by giving

direction upon the present petitioners to initiate departmental proceedings.

This respondent was served with a notice dated 31.01.2007 with direction

upon him to appear before the Enquiry Authority. The respondent appeared

and submitted that he was not supplied with the copy of memorandum of

charge-sheet. Consequent to that charge sheet was handed over to him and

he participated in the said enquiry proceeding. On 29.11.2007, this

respondent was served with a notice along with the copy of the enquiry

report directing him to show cause as to why he would not be dismissed

from service and ultimately he was dismissed from service vide order dated

06.12.2006 by the disciplinary authority.

The respondent preferred an appeal before the Governor against the

said order of dismissal and the order was affirmed by the appellate

authority. The respondent again knocked the door of the Tribunal which

was disposed of by remanding back the matter to the appellate authority

with a direction to dispose of the same in compliance to the Rule 19 of CCA

Rule, 1971. An application was taken out by the respondent with a prayer

to rehear the appeal afresh on the ground that the Governor was no longer

an appellate authority with effect from 20.02.2008 and the said application

was disposed of on 13.07.2012 with a direction that the application would

be hard by the Tribunal on merit. Thereafter an application has been filed

by the respondent before this Court challenging the order dated 13.07.2022

in WPST No. 1 of 2013 which was disposed of by remanding back the

matter to the Tribunal holding that M.A. No. 150 of 2011 should be hard by

the two members who passed the order dated 29.07.2010 and quashed

order of Tribunal dated 13.07.2012. In compliance with the direction

passed by this Court the Tribunal disposed of the application with the

liberty given to the respondent to file a fresh application and accordingly,

the application has been preferred before the Tribunal and the said

application has been disposed of by passing the impugned order.

The respondent took plea that the copy of the recommendation of the

Vigilance Commission as well as Public Service Commission was not

supplied before passing of the final order and the copy of advice of Public

Service Commission was only supplied to him along with the final order of

dismissal which is a clear violation of law.

It is profitable to quote the relevant provisions of the West Bengal

Services (Classification, Control and Appeal) Rules, 1971. Sub Rules 14, 15

and16 of Rule 10 entails that-

(14) On receipt of the advice of the Commission the disciplinary

authority shall consider the representation, if any, made by the Government

employee as aforesaid and the advice given by the Commission and

determine what penalty, if any, should be imposed on the Government

employee and pass appropriate orders on the case.

(15) In any case in which it is not necessary to consult the Commission,

the disciplinary authority shall consider the representation, if any, made by

the Government employee in response to the notice under clause (b) of sub-

rule (12) and determine what penalty, if any, should be imposed on the

Government employee and pass appropriate orders in the case.

(16) Orders passed by the disciplinary authority under sub-rule 9 or

sub-rule 10 shall be communicated to the Government employee who shall

also be supplied with a copy of the report of the enquiring authority and a

statement of its findings together with brief reasons for this agreement, if

any, with the findings of the enquiring authority, unless they have already

been supplied to him and also a copy of the advice, if any, given by the

Commission and where the disciplinary authority has not accepted the

advice of the Commission, a brief statement of the reasons for such non-

acceptance.

The provisions in Rule 10 lay down the procedure to be followed for

imposing penalties as specified in Rule 8 thereof. In terms of Rule 10, the

disciplinary authority of a delinquent employee is required to draw up a

charge-sheet containing the substances of the imputations of misconduct or

misbehaviour, statement of imputations of misconduct or misbehaviour in

support of each article of charge, a list of documents by which and a list of

witnesses by whom the charge(s) are supposed to be sustained. Sub-rules

(3) to (16) of Rule 10 mandates further steps which the disciplinary

authority is required to take for culmination of the disciplinary proceedings,

according to law. Such Sub-rules, in effect, contain appropriate safeguards

so that any inquiry initiated on the basis of a charge-sheet does not suffer

from the vices of unfairness, unreasonableness or arbitrariness and the

delinquent employee is granted adequate and sufficient opportunity to

defend himself.

It appears from the impugned order of dismissal that the Public

Service Commission, West Bengal had recommended that the delinquent

officer be dismissed from service and being aggrieved with the

recommendation and advice made by the Public Service Commission

disciplinary authority imposed a punishment of dismissal upon the

respondent. So it is clear to us that recommendation of Public Service

Commission has not been supplied to the respondent before passing an

order of dismissal which is a clear violation of the provisions as referred

above. The disciplinary authority failed to appreciate that before passing of

the final order recommendation and the advice of Public Service

Commission should be given to the delinquent respondent enabling him to

submit his representation. Non-supply of the recommendations of the

Public Service Commission being contrary to the requirements of the Service

Rules, any further proof of prejudice was not required. Once the procedural

Rule had been violated, prejudice would be presumed.

In view of observation made above we do not find any infirmity or

illegality in the impugned order dated 02.09.2022 passed by the Tribunal in

quashing the order dated 11.01.2008 and remanding back the matter to the

disciplinary authority with a direction to serve the copy of the Public

Service Commission advice to the respondent before passing final order.

Writ petition is thus dismissed.

The impugned order dated 02.09.2022 passed by the Tribunal in

Case No. O.A. 1460 of 2013 is hereby affirmed.

The disciplinary authority is directed to pass a reasoned order within

two months from the date of this order after giving opportunity of being

heard to the respondent.

No order as to costs.

Urgent Photostat certified copies of this judgment, if applied for, be

made available to the parties subject to compliance with requisite

formalities.

I agree.

(Harish Tandon, J.)

(Prasenjit Biswas, J.)