Back
1998 Supreme(Cal) 156
IN THE HIGH COURT AT CALCUTTA
Satyabrata Sinha and Dibyendu Bhusan Dutta, JJ.
Chittya Ranjan Paira – Appellant
Versus
The State of West Bengal & Ors. – Respondents
F.M.A. No. 525 of 1977
Decided on: 1st April, 1998
Advocate Appeared:
Mr. Mrinal Kanti Roy, for the appellant
Rule 34(3) of the West Bengal Service Rule, Part-I is ultra vires Article 311 of the Constitution of India, as it allows for termination of service without giving the employee an opportunity of hearing.
Headnote:
SERVICE TERMINATION - RULE 34, WEST BENGAL SERVICE RULES, PART-I - ULTRA VIRES ARTICLE 311 OF THE CONSTITUTION OF INDIA - TERMINATION OF SERVICE WITHOUT OPPORTUNITY OF HEARING IS BAD IN LAW.
Fact of the Case:
The petitioner, a copyist in the Settlement Department, was absent from duty for a long period due to ill health, pregnancy, and involvement in a criminal case. His service was terminated in terms of Rule 34(3) of the West Bengal Service Rule, Part-I, which provides for automatic termination of service after 5 years of continuous absence from duty.
Finding of the Court:
The court held that Rule 34(3) of the West Bengal Service Rule, Part-I is ultra vires Article 311 of the Constitution of India, as it allows for termination of service without giving the employee an opportunity of hearing. The court also held that the petitioner's absence from duty was due to exceptional circumstances and that the Government could have exercised its discretion to determine his case otherwise.
Issues: 1. Whether Rule 34(3) of the West Bengal Service Rule, Part-I is ultra vires Article 311 of the Constitution of India? 2. Whether the petitioner's service could have been terminated without giving him an opportunity of hearing? 3. Whether the petitioner's absence from duty was due to exceptional circumstances?
Ratio Decidendi: 1. Rule 34(3) of the West Bengal Service Rule, Part-I is ultra vires Article 311 of the Constitution of India, as it allows for termination of service without giving the employee an opportunity of hearing. 2. The petitioner's service could not have been terminated without giving him an opportunity of hearing, as his absence from duty was due to exceptional circumstances and the Government could have exercised its discretion to determine his case otherwise.
Final Decision: The appeal was allowed, the judgment and order of the trial court was set aside, and the writ petition was allowed. The petitioner was entitled to the arrear salary only upon taking into consideration the Leave Rules. The Director of Land Record, Government of West Bengal, was directed to pass an appropriate order in terms of the Leave Rules or any other rule applicable in the case of the petitioner within 6 weeks from the date of communication of the order.
Sinha, J.
This appeal is directed against a judgment and order dated 16th December, 1976 passed by a learned Single Judge of this Court in C.R. No. 5855(W) of 1970 whereby and whereunder the writ application filed by the writ petitioner was dismissed.
2. The fact of the matter lies in a very narrow compass.
3. The petitioner was appointed as copyist on 22nd July, 1954. The petitioner contends that he was subsequently made permanent in the post of Senior Junch, Mohorrer in the Settlement Department. Owing to his ill health he went on leave on 27th July, 1964 which was sanctioned. He got his leave extended from time to time. The petitioner allegedly could not join the office owing to advance stage of pragnency of his wife. In the meantime, the petitioner was arrested in connection with a murder case for which also the petitioner could not join his duties. According to the petitioner, a proclamation was also issued against him in the aforementioned criminal case and he surrendered in the Court of the learned Magistrate on 15.2.65. In the meantime, his service was terminated with effect from 22.1.65 purported to be in terms of sub-rule (3) of Rule 34 of the West Bengal Service Rule, Part-I due to his long absence in duty.
4. According to the petitioner, he did not receive the aforementioned communication and the purported communication was made to him by letter dated 28.5.68 which is in the following terms:-
"It appears from the office records that your service was terminated with effect from 22.1.65 in terms of sub-rule (3) of Rule 34 of the W.B.S.R., Part-I under this office order No. 5929/B dated 6.3.65 due to your long absence in duty and that was intimated to you. So the question of allowing you to join in the service again does not arise."
5. The petitioner was acquitted on 10.4.1968. According to the petitioner, in terms of Rule 34 of the West Bengal Service Rule, Part-I, he was entitled to leave at least for a continuous period of 5 years. In the aforementioned situation, the petitioner filed the said writ application praying, inter alia, for the following relief’s:-
"(a) To issue a Rule NISI upon the opposite parties to show cause why a writ or writs in the nature of mandamus should not issue upon the opposite parties directing them to withdraw and/or to cancel and/or to set aside and/or not to give effect to and/or to forbear from giving further effect to the impugned orders dated 29.5.68 and 14.3.70 contained in Annexures "F" & "G" hereto and any other orders in connection therewith not yet disclosed to the petitioner and direct them to show cause why the said order terminating the services of the petitioner should not be set aside and/or cancelled and/or quashed and/or direct them to show cause why the petitioner should not be reinstated in his post of service under the opposite party no. 3 aforesaid;
(b) To issue Rule NISI upon the opposite parties to show cause why a writ in the nature of Certiorari should not be issued upon the opposite directing them to certify and to produce and to bring before the Hon'ble High Court, Calcutta, within such time as may be fixed, all records correspondences notice or notices, applications, resolutions, orders in connection with the orders of termination of service of the petitioner and/or decisions of the opposite parties with reference to the Annexures "F" & "G" dated 29th May, 1986 and 14th March, 1970 respectively contained and direct them to show cause why the said orders/decision of the opposite parties herein complained of should not be set aside and/or withdrawn and/or cancelled and/or quashed and further direct them to show cause why the further direct them to show cause why the petitioner should not be reinstated in his post of service under the O.P. No. 3."
6. The learned trial Judge relied on Rule 34(3) of the W.B.S.R. Part I and inter alia held that as the petitioner was a temporary employee he would be deemed to have resigned from the post and on that ground, the writ pe
