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2000 DIGILAW 615 (CAL)

SHYAMANANDA JHA v. STATE OF WEST BENGAL

2000-12-07

PRANAB KUMAR CHATTOPADHYAY

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P. K. CHATTOPADHYAY, J. ( 1 ) THE petitioner herein was initially engaged on casual basis in the employment of West Bengal Council of Higher Secondary Education and subsequently he was absorbed on permanent basis as Lower Division Clerk. It has been alleged by the respondent Council that the petitioner was a habitual absentee and on behalf of the respondent it has also been alleged that though the petitioner was repeatedly warned against unauthorised absence and was requested not to abstained from duty but the petitioner ignored the said lawful direction/instruction of the Council and again unauthorisely and irregularly absented himself from duty for a total period of 240 days between November, 1989 and October, 1990 without any prior leave of absence from the Council. ( 2 ) BY Memo. No EST/520/91/90 dated 9. 11. 90, petitioner was served with a charge sheet by the President of the Council for unauthorisely and irregularly absenting himself from duty. It appears from the said chargesheet that an enquiry was initiated under West Bengal Services (Classification, Control and Appeal) Rule, 1971 and the chargesheet was framed under Rule 10 of the said Rules. An Enquiry Officer was appointed to conduct the enquiry in connection with the said departmental proceeding which was drawn up against the petitioner on the basis of the aforesaid chargesheet. The Enquiry Officer ultimately submitted the Enquiry Report before the Disciplinary Authority. The President of the Council, being the Disciplinary Authority, examined the said Enquiry Report and recorded his observations. Thereafter the Secretary of the Council forwarded the observations of the President together with a copy of the Enquiry Report to the petitioner herein. ( 3 ) FROM the observations of the President on the Enquiry Report, it appears that the said President proposed to impose penalty of dismissal of service on the petitioner and the petitioner was asked to submit representation on the punishment proposed by the President as mentioned in the said observations. ( 4 ) THE Petitioner on receipt of the said Enquiry Report alongwith the observations of the President on the said Report submitted a detailed representation before the President and the Secretary of the Council. ( 4 ) THE Petitioner on receipt of the said Enquiry Report alongwith the observations of the President on the said Report submitted a detailed representation before the President and the Secretary of the Council. ( 5 ) THE said representation of the petitioner addressed to the Secretary and the President of the Council was placed before the Council at its meeting held on 13th January, 1992 wherein the Members of the council were not satisfied with the said representation of the petitioner and directed the petitioner to submit a fresh representation with valid reasons. Petitioner again submitted a representation addressing the President and Secretary of the Council. Thereafter, the Council considered the final representation submitted by the petitioner in its meeting held on 31st January, 1992. The Members of the Council, in full agreement with the report of the Enquiry Officer and the findings recorded by him in respect of the charges brought against the petitioner, inflicted punishment on the petitioner by dismissing him from the service of the Council with immediate effect. The said decision of the Council was recorded in the Resolution of the meeting of the Council held on 12th February, 1992. Challenging the Chargesheet, Enquiry Report, Second show Cause Notice and Order of Dismissal petitioner herein filed the present writ petition. ( 6 ) MR. Milan Bhattacharjee, learned counsel, appearing on behalf of the petitioner submitted that the departmental proceedings against the petitioner was not conducted by the respondent-authorities in accordance with law. It has been submitted on behalf of the petitioner that on receipt of letter dated 15 June, 1991 issued by the Enquiry Officer, the writ petitioner prayed for adjournment on medical grounds. The Enquiry Officer fixed 24th July, 1991 as the last date for hearing. On 24th July, 1991 the writ petitioner appeared before the Enquiry Officer and filed a reply to the chargesheet which was rejected by the Enquiry Officer on the ground that the reply was time barred. ( 7 ) IT has been further submitted on behalf of the petitioner that the enquiry was held exparte and the petitioner suddenly received the letter dated 13th December, 1991 from the Secretary of the Council wherein the observations of the President on the Enquiry Report were communicated and the same according to the petitioner, surprised him. ( 8 ) MR. ( 8 ) MR. Bhattacharjee submitted that the Enquiry Officer travelled beyond the charge and no cogent reasons have been given why the petitioner was found guilty inspite of condonation recorded by the Council itself in respect of the period which has been surprisingly made a part of the imputation of mis-conduct. Mr. Bhattacharjee also submitted that the medical evidence has been dis-believed by the Enquiry Officer without any cogent reason. ( 9 ) ACCORDING to the learned counsel of the petitioner, the observations made by the President on the Report of Enquiry Officer was uncalled for and the said observations, according to the petitioner, indicate that the Council had made up its mind beforehand for dismissing the petitioner from the service. According to the petitioner Rule 10 (10) of the West Bengal Service (Classification, Control and Appeal) Rules, 1971 has not been strictly followed while proceeding against the petitioner as no discussion has been made by the President on each charge though the same is required under the Rules. Reference has been made to a decision of this Court reported in 1991 (1) CLJ Page 291. It has been further submitted that the President of the Council examined the Enquiry Report without offering an opportunity to the chargesheeted employee to submit necessary observations on the said report and thereby formed an opinion against the chargesheeted employee namely the petitioner herein upon being influenced by the findings and observations of the Enquiry Officer as recorded in the Enquiry Report. ( 10 ) MR. Bhattacharjee also submitted that when a part of the charge has already been condoned, the petitioner cannot be held guilty of the other part and furthermore, no major penalty can be imposed upon the petitioner holding him guilty for the other part of charge. The learned Advocate of the petitioner referred to and relied upon a judgment reported in AIR 1994 SC page 214. The learned Advocate of the petitioner also submitted that the petitioner is an uneducated employee who can speak in Hindi but cannot write English and as such the petitioner should have been provided with the assistance of a lawyer and the enquiry should not have been held exparte in such a hot haste. The learned counsel of the petitioner referred to the decisions of this Court reported in 1996 (1) CLJ page 525 and also 92 CWN page 785 in this regard. The learned counsel of the petitioner referred to the decisions of this Court reported in 1996 (1) CLJ page 525 and also 92 CWN page 785 in this regard. ( 11 ) IT has been further submitted on behalf of the petitioner that the punishment imposed on the petitioner is harsh and disproportionate. In support of the said submission the learned counsel relied on the decisions reported in AIR 2000 SC 1157 and 2000 (3) SCC 324 . Mr. Bhattacharjee, learned counsel appearing on behalf of the petitioner further submitted that the President of the Council being the Disciplinary Authority though initiated the departmental proceedings against the petitioner but the punishment was imposed by the supreme authority of the West Bengal Council of the Higher Secondary Education namely "the Council". According to the petitioner, the Council is the appellate authority over the President who acted in the instant case as Disciplinary Authority. There is no provision for preferring any appeal to any other authority and particularly when the Council is the Supreme Authority of the West Bengal Council of Higher Secondary Education. Accordingly, it has been submitted by the petitioner that the provisions laid down in respect of preferring and disposal of the appeal under Rules 16, 17, 18 and 19 of the said CCA Rules, 1971 have been made infructuous in the instant case as the Appellate Authority has usurped the power of the Disciplinary Authority. ( 12 ) THOUGH a specific submission in this regard has been made in para 36 of the writ petition but while dealing with the said averments mentioned in paragraph 36 of the writ petition, the respondent-Council in its affidavit-in-opposition vaguely denied that there is no provisions for departmental appeal, though in the said affidavit it had not been indicated who should be regarded as the Appellate Authority in the instant case other than the Council. Mr. Bhattacharjee placed reliance on a recent decision of the Division Bench of this Hon'ble Court reported in AIR 2000 (2) CLJ 393 (Jyotish Chandra Biswas v. Life Insurance Corporation of India and Ors.) ( 13 ) MR. P. K. Chatterjee, learned senior counsel, appearing on behalf of the Council submitted that there is no merit or substance in the aforesaid grounds of challenge made on behalf of the writ petitioner. According to Mr. P. K. Chatterjee, learned senior counsel, appearing on behalf of the Council submitted that there is no merit or substance in the aforesaid grounds of challenge made on behalf of the writ petitioner. According to Mr. Chatterjee, the petitioner was not supposed to receive a copy of the Enquiry Report before the same was considered by the President of the Council. Mr. Chatterjee, further submitted that the writ petitioner has no right to make a representation before the consideration of the report of enquiry by the President. According to Mr. Chatterjee, petitioner was given full and fair opportunity of defending himself. ( 14 ) AFTER the enquiry was completed and the Enquiry Officer submitted his report to the President, who after making preliminary observations on the findings of the Enquiry Officer, forwarded a copy of the enquiry report together with his observations with a request to the petitioner to submit his representation on the punishment proposed. It has been submitted by the respondent that the opportunity of submitting representation on the punishment proposed is the only opportunity which the petitioner was entitled to in law. ( 15 ) FURTHERMORE, according to Mr. Chatterjee, the writ petitioner has not expressed any such grievance either in the writ petition or in the written notes, though Mr. Chatterjee in his written notes of arguments specifically admitted that at the time of hearing of the writ petition it was submitted by the writ petitioner that the report of enquiry is to be sent to the petitioner before the same was considered by the President of the Council. The relevant portion of paragraph 4 of the written notes of arguments submitted by Mr. Chatterjee in this regard is stated herein below :-"shyamananda Jha has challenged the order of dismissal by filing the instant writ petition. At the hearing of the writ petition, it was inter alia submitted on his behalf that :- (i) The report of enquiry was to be sent to Shyamananda Jha before the same was considered by the President of the Council but the same was given to him after the President had considered it. According to Shyamananda Jha, he was to be given opportunity of making representation against the Report of Enquiry before the report was considered by the President. According to Shyamananda Jha, he was to be given opportunity of making representation against the Report of Enquiry before the report was considered by the President. ( 16 ) IT was his grievance that when the report was received by the Shyamananda Jha, the President had already considered the report and the he had already taken some punitive decision on the same against him and so he did not get justice. " Mr. Chatterjee while dealing with aforesaid charge made on behalf of the writ petitioner regarding furnishing of the Enquiry Report to the petitioner before the same was considered by the Disciplinary Authority namely the President of the Council submitted that the petitioner had no right to make any representation against the report of enquiry before the same was considered by the Disciplinary Authority and all that he was entitled to was to make representation against the proposed punishment, which he did. There is no provision in law of allowing the delinquent employee to file two representations after conclusion of enquiry-one against the report and after enquiry was over one against the punishment. In all cases where second show-cause notice against punishment is provided, no earlier representation against report is contemplated. Mr. Chatterjee cited the decision of Ramzan Khan's case reported in 1991 (1) SCC 588 . Mr. Chatterjee also referred to various portions of the said judgment and contended that there is no necessity to supply a copy of the Enquiry Report to the chargesheeted employee before the same is considered by the Disciplinary Authority. Mr. Chatterjee relied on the decisions of the Supreme Court in the case of State of Gujrat v. R. G. Teredesai and Anr. reported in (1969)2 SCC 128 . Mr. Chatterjee also relied on Karunakar's case reported in (1993)4 SCC 728. Several portions from the judgment have been quoted by Mr. Chatterjee in the written notes of submissions in support of his contention. ( 17 ) WHILE dealing with the other charge of the petitioner regarding denial of right of appeal in absence of Appellate Authority, Mr. Chatterjee submitted at the time of hearing that the petitioner cannot raise any objection regarding the said denial of his right of appeal in absence of the Appellate Authority as the said petitioner did not choose to submit any appeal in the name of the Appellate Authority which should have been done by the petitioner. Chatterjee submitted at the time of hearing that the petitioner cannot raise any objection regarding the said denial of his right of appeal in absence of the Appellate Authority as the said petitioner did not choose to submit any appeal in the name of the Appellate Authority which should have been done by the petitioner. However, in the written notes of arguments a different stand has been taken by the respondent. ( 18 ) MR. Chatterjee, on behalf of the respondent-Council, mentioned in the written notes of arguments that there is no provision of departmental appeal in the Council and the Rules relating to appeal under the said CCA Rules, 1971 have no manner of application to the Council. In the said written notes of arguments, it has also been mentioned by Mr. Chatterjee that the Council though had and still has the power to frame conduct, Discipline and Appeal Rules for the employees but no such Rules had been framed by the Council at the relevant time. ( 19 ) MR. Chatterjee further submitted that it is not mandatory for the Council to make provision for appeal for their employees and officers. It has also been submitted that appeal is a creature of statute and it is not necessary that every employer must provide delinquent employee a right of appeal from the order of the Disciplinary Authority. Accordingly, Mr. Chatterjee submitted that if no appeal is provided by the Rules, there cannot be any denial or deprivation of right to file appeal. ( 20 ) THOUGH in the written notes of arguments, Mr. Milan Bhattacharjee, learned counsel of the petitioner raised, several questions challenging the legality and/or validity of the chargesheet, enquiry report, second show-cause notice and order of dismissal, but Mr. Chatterjee has rightly submitted that only two points were urged in course of hearing of the instant writ petition, namely, non-supply of report of enquiry to the petitioner before the same was considered by the Disciplinary Authority and the other point regarding denial of right of preferring departmental appeal against the order of dismissal. According to the petitioner the Appellate Authority acted as Disciplinary Authority and thereby the petitioner's statutory right of appeal was nullified. Written notes were also directed to be submitted by the parties only on the aforementioned two points. According to the petitioner the Appellate Authority acted as Disciplinary Authority and thereby the petitioner's statutory right of appeal was nullified. Written notes were also directed to be submitted by the parties only on the aforementioned two points. ( 21 ) IN the present case, an interesting question has been raised by the petitioner regarding right to receive a copy of the Report of Enquiry Officer before the same is taken into consideration by the Disciplinary Authority namely, the President of the Council in the instant case. ( 22 ) IN terms of Rule 10 (10) of the West Bengal Services (Classification, Control and Appeal) Rules, 1971 the Disciplinary Authority shall consider the report of the Enquiry Officer and record its findings on each charge. While recording its finding on each charge the Disciplinary Authority is forming its opinion for taking decision on respect of the charges levelled against the delinquent employee without affording any opportunity to the chargesheeted employee to make a representation pointing out the defects and/or errors, if any, in the enquiry report. The principles of natural justice would demand that the Disciplinary Authority before taking any decision against the charge-sheeted employee, should give a reasonable opportunity of hearing or at least an opportunity to make a representation in respect of the findings of the Enquiry Officer as mentioned in the Enquiry Report. So, before the Disciplinary Authority comes to its own conclusions after considering the report of enquiry, the delinquent employee must get an opportunity to reply to the Enquiry Officer's findings The Disciplinary Authority admittedly takes decision on the charges levelled against the delinquent employee and the punishment is proposed on the basis of one said appraisal of the findings in Enquiry Report even without affording any opportunity to the charge-sheeted employee to submit his comments. While proposing the punishment, the Disciplinary Authority not only forms a tentative decision in respect of the findings on the charges but while communicating the decision, which in the eye of law, though may not be a final decision, but by proposing a punishment the Disciplinary Authority expresses its firm conclusion in respect of the findings on each charge on the basis of the Enquiry Report and such opinion of the Disciplinary Authority leaves a prominent impression in the mind of the said Disciplinary Authority which cannot be easily diluted by the delinquent employee who subsequently gets an opportunity to make a representation on the proposed punishment. As a matter of fact, such an opportunity to the chargesheeted employee in most of the cases turns out to be an empty formality. This virtually becomes a post-decisional opportunity to the delinquent employee. The Supreme Court in the case of H. L. Trehan v. Union of India ( AIR 1989 SC 568 ) observed that the post-decisional opportunity of hearing does not subserve the rules of natural justice. The following observations of the Supreme Court, which are very much appropriate on this point, are set out hereunder :"in our opinion, the post-decisional opportunity of hearing does not subserve the rules of natural justice. The authority who embarks upon a post-decisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation at such a post-decisional opportunity. " ( 23 ) IN an earlier decision, Supreme Court, in the case of K. I. Shephard v. Union of India ( AIR 1988 SC 686 ) observed as under :"it is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose. " ( 24 ) AN opportunity of making representation against a pre-conceived notion on the basis of which Disciplinary Authority has already proposed a decision and expressed his opinion is virtually an idle ceremony. In my opinion, whenever an authority takes a decisions in respect of any dispute, it must grant to the party who is likely to be affected by such decision, a reasonable opportunity of hearing or at least an opportunity to make a representation before such authority even tentatively forms such an opinion. In my opinion, whenever an authority takes a decisions in respect of any dispute, it must grant to the party who is likely to be affected by such decision, a reasonable opportunity of hearing or at least an opportunity to make a representation before such authority even tentatively forms such an opinion. As otherwise the same would be violative of principles of natural justice. ( 25 ) THE Disciplinary Authority before coming to a conclusion in respect of the chargesheeted employee must grant an opportunity to make a representation on the Enquiry Officer's findings as otherwise the Disciplinary Authority would be influenced by the findings of the Enquiry Officer and the said Disciplinary Authority will form its opinion without giving an opportunity to the affected employee who is entitled to record his comments on the findings of the Enquiry Officer upon going through the Enquiry Report. ( 26 ) IN Managing Director, ECIL v. B. Karunakar, reported in (1993)4 SCC 727 at 754 (Paragraph 27) held :"it will thus be seen that where the Enquiry Officer is other than the Disciplinary Authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. " ( 27 ) CONSIDERING the rights of the charge-sheeted employee to receive the copy of the Enquiry Report, the view of the Supreme Court was expressed in B. Karunakar's Case (supra) in the following words :" While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz. , before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt as accepted"" The reason why the right to receive the report of the Enquiry Officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the Enquiry Officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstructing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Enquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Enquiry Officer along with the evidence on record. In the circumstances, the findings of the Enquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Enquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. If the Enquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Enquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it. "" Ex post facto opportunity does not efface the past impression formed by the disciplinary authority against the delinquent, however, professedly to be fair to the delinquent. The lurking suspicion always lingers in the mind of the delinquent that the disciplinary authority was not objective and he was treated unfairly. To alleviate such an impression and to prevent injustice or miscarriage of justice at the threshold, the disciplinary authority should supply the copy of the report, consider objectively the records, the evidence, the report and the explanation offered by the delinquent and make up his mind on proof of the charge or the nature of the penalty" ( 28 ) CONSIDERATION of the representation of the chargesheeted employee in reply to the second show cause notice after formation of the opinion of the Disciplinary Authority against the said employee is nothing but a post-decisional hearing which in most of the cases is an idle ceremony. Such an opportunity does not serve the ends of natural justice which are mainly to prevent a miscarriage of justice. The Disciplinary Authority herein admittedly made its observations on the Enquiry Report and proposed punishment without granting any opportunity to the chargesheeted employee to submit a representation on the Enquiry Report. Copy of the Enquiry Report was forwarded by the Disciplinary Authority only after taking a decision on such Enquiry Report even though it may be that such decision was not final. Copy of the Enquiry Report was forwarded by the Disciplinary Authority only after taking a decision on such Enquiry Report even though it may be that such decision was not final. No one should be condemned unheard and this is the basic concept of the principles of natural justice. In the instant case the Disciplinary Authority had taken a decision in respect of the chargesheeted employee proposing punishment without giving an opportunity to make representation on the Enquiry Report though on the basis of such Enquiry Report the Disciplinary Authority took the decision proposing punishment. Accordingly, in my opinion, gross miscarriage of justice has been caused in the instant case for non-observance of the principles of natural justice by the Disciplinary Authority. ( 29 ) ON the next point regarding denial of right of appeal to the writ petitioner, it appears from the chargesheet dated 9th February, 1990 that the President of the Council proposed to held enquiry against the petitioner. It has, further, been specifically mentioned in the said chargesheet as under :"an enquiry under Rule 10 of W. B. Services (Classification, Control and Appeal) Rule, 1971 is proposed to be held" ( 30 ) MR. Chatterjee also admitted that though subject to approval of the State Government, the Council has power to frame Conduct, Discipline and Appeal Rules for their employees but no such Rules had been famed by the Council at the relevant point of time and that is why the President proposed to hold the enquiry in respect of the petitioner on the charges mentioned in the chargesheet under West Bengal Services (Classification, Control and Appeal) Rules, 1971. ( 31 ) IT cannot be said that for the purpose of conducting a disciplinary proceeding against a chargesheeted employee, provisions of West Bengal Services (CCA) Rules, 1971 will apply only upto a certain stage and thereafter, the said employee would be left without any remedy inspite of specific provision metioned in the said C. C. A. Rules. According to the respondent-Council, provisions of West Bengal Services (Classification, Control and Appeal) Rules, 1971 is applicable upto the stage of inflincting punishment but not thereafter and as such employee who was proceeded under the said CCA Rules, 1971 would be denied statutory right to prefer an appeal before the Appellate Authority under the said Rule. The aforesaid contention of the respondent sounds most illogical and absurd. The aforesaid contention of the respondent sounds most illogical and absurd. ( 32 ) MR. Chatterjee, in course of hearing, though submitted that the petitioner should have preferred an appeal in the name of Appellate Authority but subsequently, took a different stand in the written notes of Arguments. I also cannot accept that in absence of an Appellate Authority any appeal could have been filed by the petitioner in the name of the Appellate Authority. In the instant case, the President of the Council being the Disciplinary Authority issued the charge-sheet and initiated disciplinary proceeding against the petitioner. But the final order of punishment was passed by the Supreme Authority of the West Bengal Council of Higher Secondary Education namely Council. Admittedly, there can be no other superior authority which can act over the supreme head, namely the Council, for the purpose of considering the decision taken by the said Council. ( 33 ) IN the instance case, the Council should be regarded as Appellate Authority when the President had acted as Disciplinary Authority. Disciplinary proceedings was conducted in the present case in terms of the provisions of the West Bengal Services (Classification, Control and Appeal) Rules, 1971 and the petitioner was entitled to prefer an appeal against the order of punishment before the Appellate Authority under the said Rule. The petitioner herein had been denied the right to prefer an appeal before the Appellate Authority as the Council being the Appellate Authority had acted as a Disciplinary Authority by imposing punishment on the petitioner. For the aforementioned reasons in my opinion, the present writ petition can be allowed on the sole ground that the Appellate Authority had acted as a Disciplinary Authority as a result whereof the petitioner had been denied the right to prefer appeal before the Appellate Authority. ( 34 ) HON'ble Supreme Court, in the case of Sujit Ghosh v. Chairman, Managing Committee, United Commercial Bank and Ors. reported in AIR 1995 SC 1053 , specifically held that when an Appellate Authority chooses to exercise the power of Disciplinary Authority then there is no right of appeal under the regulations and it cannot be accepted. ( 34 ) HON'ble Supreme Court, in the case of Sujit Ghosh v. Chairman, Managing Committee, United Commercial Bank and Ors. reported in AIR 1995 SC 1053 , specifically held that when an Appellate Authority chooses to exercise the power of Disciplinary Authority then there is no right of appeal under the regulations and it cannot be accepted. Following the said decision, a Division Bench of this Court in Jyotish Chandra Biswas v. LIC reported in 2000 (2) CLJ 393 held that a right of appeal which has been conferred upon the employees by reason of a statute cannot be taken away. The submissions of Mr. Chatterjee on behalf of the Council could not impress me at all and I do not find any Merits in his submissions. ( 35 ) ACCORDINGLY, the present writ petition should be allowed on the aforesaid ground alone that the Appellate Authority herein had acted as a Disciplinary Authority whereby the petitioner had been deprived of his right of preferring an appeal before the Appellate Authority. ( 36 ) FOR the aforementioned reasons, the impugned order of dismissal suffers from an inherent defect and therefore, the same is liable to be quashed. ( 37 ) NOW it is to be decided what relief is to be granted to the petitioner in the instant case. It will not be just and proper to remit the case to the Disciplinary Authority after a lapse of almost nine years particularly when the Appellate Authority, admittedly an authority higher than the Disciplinary Authority, has already considered the entire aspect of the matter and took a decision inflicting punishment on the petitioner herein and as such no one cannot expect that the Disciplinary Authority being a lower authority will take a contrary view and will pass a different order after considering the representation of the petitioner. This proceeding is pending for a long time and the petitioner herein has immensely suffered. ( 38 ) FOLLOWING the decision of the Division Bench of this Court as mentioned hereinabove and also relying on the principle laid down by the apex Court in Surajit Ghosh's case (supra), I allow the present writ petition and quash the order of punishment as communicated above by the Secretary of the Council by Memo. No. EST/80/91/92 dated February 14, 1992 being annexure 'n' to the writ petition. No. EST/80/91/92 dated February 14, 1992 being annexure 'n' to the writ petition. The respondents authorities herein shall reinstate the petitioner in service immediately with all service benefits including arrears of salary after adjusting the amount already paid by way of subsistence allowance. The petitioner should be reinstated with continuity of service and without loss of seniority in the post, which he would be entitled to on the basis of his continuous service. Necessary order of reinstatement should be issued by the appropriate authority of the Council within two weeks from the date of receipt of this order and the amount towards the arrear salary as have been directed hereinabove should be paid to the petitioner within four weeks from the date of communication of this order. The writ petition is, thus, allowed to the extent indicated above. In the facts and circumstances of the case, there will be, however, no order as to costs. Xerox certified copy of this order, if applied for, be supplied to respective parties on urgent basis. Petition allowed.