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IN THE HIGH COURT AT CALCUTTA
SUBRATA TALUKDAR, SUPRATIM BHATTACHARYA, JJ.
Bikram Panda – Appellant
Versus
The State of West Bengal and Others – Respondents
WPST No. 86 of 2021
Decided On : 20-02-2023
Unauthorised Absence - Health & Family Welfare Department - West Bengal Civil Services (Control, Classification & Appeal) Rules, 1971 - The court discussed the unauthorised absence of the petitioner, the misconduct under the West Bengal Civil Services Rules, and the manipulation by the CMOH, Alipurduar in providing unfair service benefits to another individual. The court highlighted the failure of the state to initiate departmental proceedings against the petitioner and the unjust treatment meted out to the petitioner. The court also emphasized the obligation of the state to release the petitioner's salary and the need for complete justice under Article 226 of the Constitution of India.
Fact of the Case:
The petitioner, a medical practitioner, faced unauthorised absence allegations and non-payment of salary after being promoted to ACMOH. The state failed to initiate departmental proceedings against the petitioner and manipulated the petitioner's transfer and service benefits.
Finding of the Court:
The court found that the state's actions were unjust and illegal, and the petitioner was entitled to receive his salary and be treated fairly. The court also emphasized the obligation of the state to release the petitioner's salary and the need for complete justice under Article 226 of the Constitution of India.
Issues: Unauthorised absence, non-payment of salary, manipulation by the CMOH, Alipurduar, failure to initiate departmental proceedings, unjust treatment of the petitioner.
Ratio Decidendi: The state's failure to initiate departmental proceedings against the petitioner and the unjust treatment meted out to the petitioner led to the court's decision to quash the notification and allow the petitioner's writ petition.
Final Decision: The court allowed the writ petition, issued a Writ of Mandamus, quashed the notification, and directed the CMOH, Alipurduar to pay costs to the petitioner and the High Court Mediation Committee.
JUDGMENT :
SUBRATA TALUKDAR, J.
1. The facts of this case are truly chequered. The essential narrative, according to the petitioner, runs as follows:
2. On the 26th of July, 2019, the petitioner was transferred to Panchkelguri RH, Alipurduar-I, in place and stead of Dr. Rahul Sarkar. On the next date, i.e. 27th of July, 2019, the petitioner was released by the then CMOH, Nandigram enabling him to take charge as BMOH, Panchkelguri.
3. On the 1st July, 2019, the petitioner applied before the then CMOH, Alipurduar to allow him to join at Panchkelguri. The CMOH issued an order accepting the joining report of the petitioner. On the next date, i.e. 2nd July, 2019, the said Dr. Rahul Sarkar was directed to make over charge to the petitioner by the then CMOH, Alipurduar. On the 4th of July, 2019, the said Dr. Rahul Sarkar informed of his inability to join at Kharipukuria, Nandigram as posted vice the petitioner. The said Dr. Rahul Sarkar did not hand over charge to BMOH, Alipurduar (1).
4. On the 8th of July, 2019, the then CMOH, Alipurduar directed the petitioner to take over charge as BMOH, Alipurduar indicating that Dr. Rahul Sarkar has been released to join at Nandigram on 12th July, 2019. The said Dr. Rahul Sarkar was released by the then CMOH, Alipurduar for his onward reporting before the then CMOH, Nandigram.
5. Meanwhile on 22nd July, 2019, the petitioner was promoted to the rank of Assistant Chief Medical Officer of Health (for short ACMOH).
6. On 23rd July, 2019, the BMOH, Kharipukuria, complained to the then CMOH, Alipurduar about the non-reporting by the said Dr. Rahul Sarkar at Nandigram. On 25th July, 2019, the ACMOH, Alipurduar informed the BMOH, Kharipukuria about the petitioner having joined and continuing his services at Alipurduar.
7. On 26th July, 2019, the transfer order of the petitioner from Nandigram to Alipurduar was notified but, the promotion was not taken into consideration. On 5th August, 2019 an addendum to the notification was published indicating that the petitioner will discharge duties as ACMOH, Alipurduar. On the 6th of August, 2019, the final release order of the petitioner was published by the then CMOH, Nandigram. On 8th August, 2019, the petitioner filed a joining report as BMOH, Alipurduar in the rank of ACMOH before the then CMOH, Alipurduar. A representation was also filed by the petitioner to fix his pay as per the promoted rank of ACMOH.
8. On 13th August, 2019, the petitioner in his capacity as ACMOH, Alipurduar was directed by the then CMOH, Alipurduar to cancel the release order of the said Dr. Rahul Sarkar dated 9th July, 2019 and issue a fresh release order in favour of the said Dr. Rahul Sarkar for joining as BMOH, Dalua upon regularizing his absence.
9. On 14th August, 2019, the petitioner, in compliance with the direction of the then CMOH, Alipurduar, issued the fresh release order in favour of the said Dr. Rahul Sarkar. On 16th August, 2019, the original release order dated 8th August, 2019 of the petitioner was forwarded to the then CMOH, Alipurduar. On 27th August, 2019, the then CMOH, Alipurduar directed BMOH, Panchkelguri to release the salary of the said Dr. Rahul Sarkar notwithstanding his absence.
10. On the 6th of September, 2019, the then CMOH, Alipurduar threatened the petitioner with initiation of disciplinary proceedings owing to unauthorized leave and non-occupation of his residential quarters as BMOH. The petitioner was compelled to file an elaborate representation before the Director of Health Services disclosing the developments prevailing in the matter of his transfer. Further, on 14th September, 2019, the petitioner made a second representation to the Director of Health Services (for short the DHS).
11. On th
The obligation of the state to release the petitioner's salary and the need for complete justice under Article 226 of the Constitution of India.
The court's decision emphasized the limited scope of examination in matters of disciplinary proceedings, where the court plays a secondary role and examines only the decision-making process, procedur....
An employee's salary cannot be withheld without proper departmental proceedings, and irregular appointments can be regularized through continued service and promotions.
Quashing transfer order does not automatically invalidate disciplinary action for unauthorised absence; employee must join despite challenge absent stay – absence period regularized as qualifying ser....
An employee's unauthorized absence from duty, despite a challenged transfer order, does not entitle them to pay and allowances.
Advocates appeared :For the Appellant : Sankalp Kochar, Siddharth Shrivastava
An employee deemed unsuitable for a job may be dismissed without inquiry, particularly in cases of prolonged unauthorized absence.
The main legal point established in the judgment is the justification of dismissal for grave misconduct, insubordination, and indiscipline due to unauthorized absence from duty for over two years, de....
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