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2024 DAILYLAW 2339 (CAL)

Gautam Kumar Pahari v. State of West Bengal

2024-09-10

Partha Sarathi Chatterjee, Tapabrata Chakraborty

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JUDGMENT : The present writ petition has been preferred challenging an order dated 22 nd January, 2010 passed by the learned Tribunal in the original application (in short, the OA), being OA 1581 of 2009. By the said order, the learned Tribunal refused to interfere with the order passed by the appellate authority in connection with the disciplinary proceedings initiated against the petitioner being proceeding no.3 dated 05 th January, 2005. Mr. Sanjib Bandyopadhyay, learned advocate appearing for the petitioner submits that in the proceeding no.3 dated 05 th January, 2005, the order of punishment was issued by the respondent no.3 on 22 nd August, 2005. It would be explicit from the records that on the self-same date the period of absence for which the order of dismissal was imposed upon the petitioner, was condoned by the respondents and leave was granted regularizing the said period of absence. Having thus regularized the period of absence, the misconduct stood condoned and it was not open to the respondents to impose the punishment of dismissal from service. Such arguments, as advanced, were glossed over by the learned Tribunal and no finding was returned on the same. He argues that in service jurisprudence, dismissal from service is akin to civil death. The petitioner’s conduct was not questionable and the punishment imposed is very harsh and disproportionate, affecting the life and livelihood of the petitioner. The respondents also violated the principle of natural justice while conducting the proceedings. Drawing our attention to the order of the appellate authority, he submits that the grounds of challenge in the appeal were not dealt with appropriately and the statutory appeal was rejected taking note of the previous acts of the petitioner and the order was passed going beyond tethers of the chargesheet. In view of such infirmities, explicit on record, interference is called for in the present writ petition. Mr. Sirsanyo Bandyopadhyay, learned Junior Standing Counsel appearing for the State respondents, however, denies and disputes the contention of the petitioner. Drawing our attention to the affidavits filed by the respondents, he submits that the petitioner was appointed on 1 st July, 2002. Prior to initiation of the disciplinary proceedings being proceeding no.3 dated 05 th January, 2005 which culminated in an order of dismissal for unauthorized absence and dereliction of duty, the petitioner was earlier proceeded twice by the respondents for unauthorized absence and penalized. Prior to initiation of the disciplinary proceedings being proceeding no.3 dated 05 th January, 2005 which culminated in an order of dismissal for unauthorized absence and dereliction of duty, the petitioner was earlier proceeded twice by the respondents for unauthorized absence and penalized. That apart, on four other occasions, the petitioner was given minor penalties for unauthorized absence. In each of the earlier proceedings, a lenient view was taken and the respondents restrained themselves from imposing the major penalty of dismissal. However, the laches on the part of the petitioner continued. He neither did attend his work nor did he contest the disciplinary proceedings and in the said backdrop, upon establishment of the charges, the respondents had no other option but to impose the punishment of dismissal. He contends that the arguments as advanced on behalf of the petitioner to the effect that the issuance of the order of dismissal and condonation of period of absence simultaneously had the effect of condoning the misconduct, cannot be acceded to since any consequential order directing how the period of absence of an employee should be accounted, is an accounting and administrative procedure, which does not affect or supersede the order imposing punishment. In support of such contention reliance has been placed upon judgments delivered by the Hon’ble Supreme Court in the cases of State of M.P. Vs. Harihar Gopal reported in 1969 SLR 274 and in the case of State of Punjab Vs. Dr. P.L. Singla reported in (2008) 8 SCC 469 . Mr. Bandyopadhyay further argues that there was no pleading in the OA nor in the statutory appeal to the effect that the issuance of the order dated 22 nd August, 2005, as annexed at page 45 of the writ petition needs to be construed as an order condoning the misconduct of the petitioner. The said issue was not even urged by the petitioner before the learned Tribunal. We have heard the learned advocates appearing for the respective parties and considered the materials on record. Records reveal that since his appointment in 2002, the petitioner was thoroughly irregular in his service. After being absent without any permission, the petitioner also did not appropriately contest the proceedings which were initiated against him. In between 2002 to 2005, six disciplinary proceedings were initiated against the petitioner and in all the proceedings the primary charge was of unauthorized absence. After being absent without any permission, the petitioner also did not appropriately contest the proceedings which were initiated against him. In between 2002 to 2005, six disciplinary proceedings were initiated against the petitioner and in all the proceedings the primary charge was of unauthorized absence. The petitioner, being a member of a discipline force, is expected to be extremely regular in his duties and having committed an offence, he cannot lament and seek sympathy. The grant of the relief, as prayed for by the petitioner, would stand out to be an instance of misplaced sympathy. In the judgment delivered by the Hon’ble Supreme Court in State of M.P. (supra) it has been observed inter alia, as follows: ‘The order granting leave was made after the order terminating the employment and it was made only for the purpose of maintaining a correct record of the duration of service, and adjustment of leave due to the respondent and for regularising his absence from duty. Our attention has not been invited to any rules governing the respondent’s service conditions under which an order regularising absence from duty subsequent to termination of employment has the effect of invalidating termination. Both the orders, one terminating the employment of the respondent, and the other granting leave are made “by order and in the name of the Governor of Madhya Pradesh”, and they are signed by L B. Sarje, Deputy Secretary to the Government of Madhya Pradesh, General administration Department. We are unable to hold that the authority after terminating the employment of the respondent intended to pass an order invalidating the earlier order by sanctioning leave so that the respondent was to be deemed not to have remained absent from duty without leave duly granted.’ Applying such proposition of law to the facts of the case, we are of the opinion no interference is called for moreso when the learned Tribunal, upon dealing with all the factual issues has arrived at specific findings and we do not find any error, least to say any patent error of law in the order impugned. Accordingly, the writ petition is dismissed. There shall, however, be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.