Research › Search › Judgment

Calcutta High Court · body

2013 DIGILAW 510 (CAL)

Susanta Dutta v. UNION OF INDIA

2013-07-26

PRANAB KUMAR CHATTOPADHYAY, SAMBUDDHA CHAKRABARTI

body2013
Judgment :- Pranab Kumar Chattopadhyay, J. The petitioner herein has challenged the decision of the learned Central Administrative Tribunal, Calcutta Bench whereby the said learned Tribunal while dismissing the Misc. Applications filed at the instance of the Respondents herein held that it had jurisdiction and competence to recall the orders passed on an earlier occasion by the other members of the said learned Tribunal. The petitioner herein is aggrieved by the judgment and order dated 12th October, 2012 passed by the Central Administrative Tribunal, Calcutta Bench in O.A. No. 70 of 2009. Going through the records we find that the petitioner herein was initially appointed as Gangman on 29th September, 1993. Subsequently, the said petitioner was transferred to Barrackpore as Gateman. On receipt of a complaint with regard to his appointment, said petitioner was placed under suspension by the order dated 11th August, 1997 passed by the competent authority in contemplation of disciplinary proceedings. Thereafter a charge sheet was issued to the said petitioner on 26th February, 1990. In spite of issuing the charge sheet, no enquiry proceeding was initiated against the petitioner herein. The said petitioner, therefore, moved an application before the learned Tribunal being O.A. No. 31 of 1999 challenging the validity of the suspension order which was disposed of by the order dated 29th June, 1999 whereby the authorities concerned were directed by the learned Tribunal to consider the appeal of the petitioner with regard to the rejecion of the order of suspension. The authorities concerned, however, by the order dated 24th November, 2000 refused to reject the suspension order upon considering the gravity of the charges levelled against the said petitioner. Since the enquiry proceeding was not initiated for a considerable period even after issuing the charge sheet, petitioner herein filed another application before the learned Tribunal being O.A. No. 442 of 2004. The learned Tribunal by the order dated 7th July, 2004 disposed of the said application by directing the authorities to complete the enquiry within six months from the date of communication of the said order. The Disciplinary Authority however, failed to complete the departmental proceedings within the aforesaid stipulated period of six months and even after lapse of almost 7 years from the date of issuing the charge sheet to the petitioner herein. The Disciplinary Authority however, failed to complete the departmental proceedings within the aforesaid stipulated period of six months and even after lapse of almost 7 years from the date of issuing the charge sheet to the petitioner herein. In the aforesaid circumstances, the petitioner again filed an application before the learned Tribunal being O.A. No. 268 of 2005 which was also disposed of by the learned Tribunal on 25th July, 2005 with the following observations and directions :- “Since grave charges have been alleged against the applicant, therefore, if the opportunity is not given to the respondents for completion of enquiry, it would cause hardship against them. Therefore, we hereby direct the respondent authorities to complete the enquiry on day to day basis within a period of three months from today. Ms. Basu is called upon to ensure that they can proceed with the enquiry on the basis of such communication made by her. It is explicitly made clear that in the event they fail to complete the enquiry within the stipulated time, the enquiry shall automatically stand quashed. Be it noted that the applicant in his own interest shall also render all necessary assistance for completion of enquiry within the aforesaid date.” In spite of the aforesaid specific order passed by the learned Tribunal, enquiry proceeding in respect of the petitioner herein was not completed. The respondent authorities filed two Misc. Applications being M.A. No. 588 of 2005 and M.A. No. 589 of 2005 seeking extension of time to complete the enquiry proceeding upon condonation of delay and the petitioner herein also filed a contempt application being Civil Contempt Petition No. 139 of 2006. Both the Misc. Applications as well as the Contempt Petition were listed before the learned Tribunal and by the order dated 9th January, 2008, aforesaid applications (namely, MAs) were disposed of as hereunder :- “Our order dated 25.7.2005 contains two directions. The first was to complete the enquiry on day to day basis within a period of three months failing which the enquiry should stand quashed. The second directions was to pay 75% subsistence allowance from the date of our order till the completion of disciplinary proceedings. The first part itself is selfcontained having penal clause (sic) that if enquiry is not complete the same shall stand quashed. So no contempt lies. Ld. The second directions was to pay 75% subsistence allowance from the date of our order till the completion of disciplinary proceedings. The first part itself is selfcontained having penal clause (sic) that if enquiry is not complete the same shall stand quashed. So no contempt lies. Ld. Counsel for the alleged contemnor submits that they are not sure whether the enhanced subsistence allowance has been paid or not in accordance with our order dated 25.7.2005. Hence they seek some time to clarify. Be that as it may, we direct the authorities to make payments, if not already made, within 15 days from the communication of this order failing which necessary appropriate order for personal appearance of the alleged contemnor will be passed. Put up CPC No. 139/2006 on 6.2.2008. Both the MAs stand accordingly disposed of.” In the aforesaid order dated 9th January, 2008, learned Tribunal specifically mentioned the earlier direction issued by the learned Tribunal and recorded in the order dated 25th July, 2005 regarding completion of the enquiry on day to day basis within a period of three months with the penal clause that if the enquiry is not completed within the aforesaid time limit then the said enquiry would stand quashed. Taking note of the aforesaid direction, the learned Tribunal by the order dated 9th January, 2008 held that no contempt would lie in view of the operation of the aforesaid penal clause which meant that the enquiry stood quashed pursuant to the specific direction passed earlier by the learned Tribunal on 25th July, 2005 in O.A. No. 268 of 2005. The learned Tribunal however rejected the prayer made on behalf of the respondent authorities for extending the time limit to complete the enquiry proceedings by dismissing the MAs. In spite of quashing of the aforesaid enquiry proceeding pursuant to the specific direction passed earlier by the learned Tribunal on 25th July, 2005 in O.A. No. 268 of 2005, the petitioner herein was not reinstated in service. Therefore, the petitioner herein filed another application before the learned Tribunal being O.A. No. 70 of 2009 for directing the respondent authorities to reinstate the said petitioner in service along with all backwages. Therefore, the petitioner herein filed another application before the learned Tribunal being O.A. No. 70 of 2009 for directing the respondent authorities to reinstate the said petitioner in service along with all backwages. In the aforesaid application, following issues were raised for consideration before the learned Tribunal “a) whether on expiry of time schedule provided by the learned Tribunal to conclude the departmental enquiry, the same ipso-facto stood quashed, (b) whether the respondents had authority and jurisdiction to take such proceedings to logical end (C) Wherein Tribunal has the jurisdiction and competence to recall the orders passed by the said learned Tribunal on earlier occasion and pass further order contrary to the earlier order.” The learned Tribunal by the order dated 25th July, 2005 passed in O.A. No. 268 of 2005 specifically directed the respondent authorities to complete the enquiry within a period of three months from the date of the said order. The learned Tribunal also made it clear in the said order that in the event the respondent authorities fail to complete the enquiry within the aforesaid stipulated time, the said enquiry would automatically stand quashed. In view of the aforesaid specific and unambiguous direction of the learned Tribunal, it can be said without any hesitation that enquiry proceeding in respect of the petitioner herein would automatically stand quashed on account of failure to complete the said enquiry within the stipulated time period as mentioned in the said order dated 25th July, 2005 passed by the learned Tribunal. The respondent authorities, therefore, had no authority and/or jurisdiction to continue with the said departmental proceedings and inflict penalty upon the employee concerned, namely, the petitioner herein in violation of the solemn order passed by the learned Tribunal. The petitioner herein might have participated in the departmental enquiry even after the expiry of the time schedule fixed by the learned Tribunal by mistake or due to the misconception about the effect of the order passed by the learned Tribunal but mere participation of the employee concerned, namely, the petitioner herein in the enquiry proceeding even after expiry of the time schedule fixed by the learned Tribunal would not validate the said enquiry proceeding under any circumstances. The respondent authorities herein cannot continue with the disciplinary proceedings in violation of the specific order passed by the learned Tribunal. The respondent authorities herein cannot continue with the disciplinary proceedings in violation of the specific order passed by the learned Tribunal. The disciplinary authority and enquiring officer in the instant case had flouted the solemn order passed by this Court and continued with the disciplinary proceedings without any authority and jurisdiction since the enquiry proceeding stood automatically quashed on account of failure to complete the enquiry within the prescribed time limit as fixed by the learned Tribunal by the order dated 25th July, 2005 passed in O.A. 268 of 2005. The disciplinary proceedings conducted by the disciplinary authority even after the expiry of the time schedule would, therefore, render the entire disciplinary proceedings illegal, invalid and non-est in the eye of law. Therefore, the order of dismissal passed by the Disciplinary Authority in the present case cannot be held to be legal and valid since the same is the outcome of an illegal and invalid disciplinary proceedings. The learned Tribunal by the impugned order has held that the petitioner herein is guilty for non-disclosure of information regarding participation in the enquiry after expiry of time schedule of three months and not bringing dismissal order passed by the Disciplinary Authority on 18th June, 2006 on record. We have already held hereinbefore that mere participation of the petitioner herein in the enquiry proceeding after expiry of the prescribed time schedule of three months would not legalise and/or validate the disciplinary proceedings under any circumstances since the said disciplinary proceedings stood automatically quashed on expiry of the prescribed time schedule as specifically fixed by the learned Tribunal. The dismissal order, therefore, passed against the petitioner on 18th June, 2006 is clearly invalid and non-est in the eye of law since the same was the outcome of an invalid and illegal disciplinary proceeding. Therefore, the petitioner herein did not commit any wrong by not disclosing an irrelevant information regarding participation in the enquiry proceeding or issuance of the dismissal order dated 18th June, 2006 since the same are not at all relevant for deciding the application filed by the petitioner before the learned Tribunal in view of the fact that the disciplinary proceedings did not survive and stood automatically quashed on expiry of the time schedule fixed earlier by the learned Tribunal by the order dated 25th July, 2005. The petitioner herein had no occasion to challenge the order of dismissal dated 18th August, 2006 since the same was non-est in the eye of law being the outcome of an illegal and invalid disciplinary proceedings. The learned Tribunal has held that it has the jurisdiction and competence to recall the order passed on earlier occasion and also to pass appropriate orders. Going through the records, we find that the respondent authorities herein never applied before the learned Tribunal for recalling of the order dated 9th January, 2008 passed by the said learned Tribunal disposing of the Misc. Applications being M.A. No. 588 of 2005 and M.A. No. 589 of 2005 by not allowing the prayer of the respondent authorities to extend the time limit for completing the enquiry in respect of the petitioner herein. The learned Tribunal even in absence of any prayer made on behalf of the respondent authorities held that the said learned Tribunal have the jurisdiction and competence to recall the order passed on earlier occasion disposing of the aforesaid MAs on 9th January, 2008 by not allowing the prayer of the respondent authorities for granting extension of time to complete the enquiry. The order passed earlier by the learned Tribunal on 9th January, 2008 became final and binding since the said order was not challenged by the respondent authorities before any court of law. The petitioner herein filed an application praying for issuance of appropriate direction for reinstatement of the said petitioner in service since the enquiry proceeding in respect of the said petitioner stood automatically quashed pursuant to the earlier order passed by the learned Tribunal. Therefore, the said Tribunal had no occasion to consider the validity and/or legality of the order passed on 9th January, 2008 whereby the Misc. Applications filed on behalf of the respondent authorities being M.A. Nos. 588– 589 of 2005 were disposed of without granting any relief to the said respondents. Therefore, the said Tribunal had no occasion to consider the validity and/or legality of the order passed on 9th January, 2008 whereby the Misc. Applications filed on behalf of the respondent authorities being M.A. Nos. 588– 589 of 2005 were disposed of without granting any relief to the said respondents. In our considered opinion, learned Tribunal had no jurisdiction and/or competence and/or authority to recall its earlier order passed on 9th January, 2008 since neither the petitioner nor even the respondent authorities prayed for recalling of the said order notwithstanding the fact that the said learned Tribunal had no authority and/or jurisdiction to recall any order which had already reached finality as parties to the said order did not challenge the validity and/or legality of the same before the competent forum. For the aforementioned reasons, we are unable to affirm the decisions of the learned Tribunal and therefore, we set aside the impugned judgment and order passed by the learned Tribunal on 12th October, 2012 in O.A. No. 70 of 2009. The respondents are directed to reinstate the petitioner in service forthwith and pay all admissible salary and allowances upon treating the said petitioner in service with effect from the date of quashing of the enquiry proceedings pursuant to the order passed by the learned Tribunal on 25th July, 2005 in O.A. No. 268 of 2005. The respondent authorities are directed to pay regular salary and allowances to the petitioner immediately after joining the duties in terms of this order. The respondent authorities are also directed to calculate the arrear admissible dues of the petitioner in terms of this order within a period of 4 (four) weeks from date and disburse the same to the said petitioner within a period of 2 (two) weeks thereafter. With the aforesaid directions, this writ petition stands allowed. In the facts of the present case, there will be however, no order as to costs. Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking. I agree.