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2003 DIGILAW 275 (CAL)

GOUR GOPAL DEBNATH v. STATE OF WEST BENGAL

2003-06-09

KALYAN JYOTI SENGUPTA

body2003
KALYAN JYOTI SENGUPTA, J. ( 1 ) BY this writ petition the petitioner has come again and this time against the order of dismissal from the service all together. Previously ofcourse punishment was demotion from the status of the officer to the position of the clerk-cum-cashier in the co-operative establishment. The previous order of punishment was challenged by the petitioner before this court and Justice Pratap Kr. Ray has been pleased to set aside the previous order of dismissal. His Lordship found various procedural irregularity in holding the enquiry, so leave was granted by His Lordship to the respondent authorities to proceed afresh on the self-same charges. ( 2 ) THE enquiry is purported to have been held pursuant to leave granted by Justice Ray on the self-same charges. It is an admitted position that at no point of time the petitioner was kept under suspension although serious charges were levelled against him. ( 3 ) FROM the record I find after issuance of the show cause notice for the second time in continuation of the earlier charge sheet the petitioner fifed reply to the show cause who denied all the charges. He wanted to file additional written statement which was not filed by him subsequently as has been recorded by the enquiry officer. ( 4 ) THE fact remains that the petitioner in substance denied all the charges levelled against him. Notice was given to the petitioner for appearance before the enquiry officer who heard this matter from time to time. The petitioner applied for adjournment from time to time and such adjournment was granted by the enquiry officer and the last adjournment was granted on 28th September, 2002. On that date hearing was fixed but the petitioner did not turn up, rather he sent his wife with an application for further adjournment supported by a medical certificate. A registered medical practitioner issued a certificate to the effect that he has been suffering from hypertension, so he was advised. to bed rest from 28th September, 2002 for a period of 14 days. But it appears in the certificate terminal date of his taking rest was 12th September, 2002. ( 5 ) THE date of certificate is of 28th September, 2002. The enquiry officer dis-believed this certificate as to its genuineness. to bed rest from 28th September, 2002 for a period of 14 days. But it appears in the certificate terminal date of his taking rest was 12th September, 2002. ( 5 ) THE date of certificate is of 28th September, 2002. The enquiry officer dis-believed this certificate as to its genuineness. In my view the enquiry officer without asking for clarification from the doctor concerned should not have dis-believed the genuineness of the certificate. When the entire certificate is read it would appear the intention was clear that the petitioner was advised for taking rest for 14 days from 28th september, 2002. ( 6 ) THE enquiry officer made a remark that this certificate is a procured one. Such an observation of the enquiry officer, in my view, without any further evidence is uncalled for. The enquiry officer in all fairness should have granted adjournment or at least should have given a notice upon the doctor concerned to examine its genuineness and correctness of the certificate. Under the provision of the law the certificate purported to have been issued by a medical practitioner is presumed to be correct and genuine unless it is challenged by anybody else. From the side of the administration the genuineness of the aforesaid document was not challenged. ( 7 ) THEREFORE, the enquiry officer on that date should not have proceeded ex-party. It is true from the records, I find, the petitioner was taking time, however, in all fairness the petitioner should have been given a last chance when medical certificate was produced, He thought that adjournment would be granted since there was a reasonable prayer for granting adjournment in view of medical certificate. When adjournment was refused, on that date itself the enquiry officer should not have been proceeded with and on the next date hearing should have been fixed with a notice that adjournment have been refused. ( 8 ) EVEN assuming that the aforesaid course of action of the enquiry officer is held to be valid then, I am of the view, there was no evidence before the enquiry officer to hold the petitioner was guilty. From the record i do not find any evidence was taken as taking of evidence was a matter of course because there was a denial of charges. From the record i do not find any evidence was taken as taking of evidence was a matter of course because there was a denial of charges. ( 9 ) THE punishment order of dismissal was passed, ir my view, without considering the question of proportion of the quantum of the same and such proportionalism in the matter of awarding punishment is the settled law. The order of dismissal in this case apparently is uncalled for in view of the previous order of punishment of the disciplinary authority which was recorded the order of demotion. When the order of demotion mitigated in a certain situation the order of dismissal on the self-same charges is obviously a mala fide one and after though. . . . . . . . . . . . ( 10 ) UNDER those circumstances, the impugned order of dismissal is set aside. ( 11 ) I give liberty to the disciplinary authority to proceed afresh from the stage it has been left out, meaning thereby the petitioner shall appear before the enquiry officer who shall recored evidence. In the event in spite of repeated notices being given, the petitioner does not appearthen enquiry officer shall proceed in his absence, if any adjournment is sought for on any ground by him without appearing and the adjournment is refused then hearing may not be taken on the same day. If the petitioner does appear with prayer for an adjournment and the adjournment is refused then enquiry officer may proceed then and there. ( 12 ) I am of the view that the enquiry officer should be replaced and an independent Advocate preferably from the member of the Bar of this high Court shall be engaged. The enquiry officer shall complete the same within a period of eight weeks from the date of communication of this order. ( 13 ) THE petitioner shall be re-instated in the service. However, he shall be paid 50% of the salary from the date of dismissal order till date and the petitioner shall be allowed to resume duty. ( 14 ) THE learned lawyer for the respondents submits that he should not be allowed to be re-instated, rather be should be put under suspension as he will destroy evidence and he will influence the witness concerned. ( 14 ) THE learned lawyer for the respondents submits that he should not be allowed to be re-instated, rather be should be put under suspension as he will destroy evidence and he will influence the witness concerned. In my view at no point of time when the petitioner was placed under suspension the question of putting him under suspension, the apprehension of the evidence being destroyed does not and cannot arise. ( 15 ) IT would be open for the Bank authority to appoin any presenting officer and in that case the petitioner shall be allowed to engage learned lawyer, as the enquiry officer is a learned lawyer. Thus, this writ petition is allowed. There will be no order as to costs.