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2013 DIGILAW 67 (CAL)

Maya Ghosh v. STATE OF WEST BENGAL

2013-02-05

ANINDITA ROY SARASWATI, NISHITA MHATRE

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JUDGMENT 1. The petition has been preferred against the order of the West Bengal Administrative in OA-2359 of 2006. The application filed by the Petitioner has been dismissed on the ground that the Petitioner had suppressed material facts and had not approached the Court with clean hands. The Petitioner was working as a Female Health Worker at the Dhadinga Sub-Centre under Taldangra Block Primary Health Centre, District-Bankura. An order of transfer was issued on 14th September, 2005 which was a general order of transfer of Health Assistant (Females). By this order the Petitioner was transferred from the Dhadinga Sub-Centre to Bankadaha Sub-Centre in the Radhanagar Block Primary Health Centre. Initially the Petitioner objected to the order of transfer. However, soon thereafter as the Respondents had not agreed to retain her in Dhadinga, she approached them through her advocate on 25th November, 2005 for issuance of a release order from Dhadinga so that she could join at Bankadaha. 2. As there was no response from the Respondents, the Petitioner preferred OA-3173 of 2005 before the Administrative Tribunal. By an order of 16th March, 2006 the Tribunal directed the Director of Health Service (Nursing), Government of West Bengal to treat the Original Application filed before the Tribunal as a representation of the Petitioner and to pass a reasoned order after affording a personal hearing to the Petitioner. 3. Accordingly, the Deputy Director of Health Services (Nursing), West Bengal passed an order in June, 2006. In this order the Deputy Director of Health Services (Nursing) has stated that since the Petitioner had, after a few days from the order of transfer, requested permission to continue at Dhadinga, there was no need to consider her application for releasing her from Dhadinga (Old) Sub-Centre. 4. A show-cause notice was issued in August, 2006 to the Petitioner alleging that she had refused to work in the Dhadinga (Old) Sub-Centre and had instead worked in the Dhadinga (New) Sub-Centre. 5. Original Application No. 2359 of 2006 was filed by the Petitioner in which she challenged the show-cause notice and also sought a direction to the Respondents to issue a release order so that she could join duty at Bankadaha Sub-Centre under the Radhanagar Block Primary Health Centre. 5. Original Application No. 2359 of 2006 was filed by the Petitioner in which she challenged the show-cause notice and also sought a direction to the Respondents to issue a release order so that she could join duty at Bankadaha Sub-Centre under the Radhanagar Block Primary Health Centre. In their Reply before the Tribunal the Respondents have not dealt with prayer (b) of the Application where the Petitioner had sought a release order from Dhadinga so that she could join Bankadaha. All that the Respondents mentioned was that a show-cause notice had been issued and her salary had been withheld. 6. By the impugned order passed by the Tribunal on 24th April, 2009 application of the Petitioner has been dismissed. 7. We are surprised that the Respondents, after issuing a transfer order have not bothered to release the Petitioner from Dhadinga so that she could report at Bankadaha, only because the Petitioner had approached them to stay the transfer order. No reasons have been mentioned in the Reply filed by the State as to what was the need to stay the transfer order. Apart from this, till today the transfer order subsists. There is no order revoking that transfer order. Therefore, it was necessary for the State to issue a release order in order to enable the Petitioner to comply with the order of transfer. Without a release order the Petitioner cannot be expected to join at Bankadaha. While issuing a release order the State would have to simultaneously inform the Bankadaha Sub-Centre that the Petitioner should be absorbed in the Sub-Centre on a transfer. 8. The fact that she had earlier sought a stay of the transfer order, in our opinion, is not material or cannot amount to suppression of facts. Although the Petitioner may have sought to continue at Dhadinga initially, within two months of the transfer order she had through her advocate, requested the Authorities to issue a release order. Instead of doing that the Authorities had issued a show cause notice. There is no indication whether the Authorities have, in fact, issued any charge-sheet or held a departmental enquiry pursuant to the show-cause notice issued to the Petitioner. 9. In these circumstances, in our opinion, the impugned order of the Tribunal will have to be set aside. Accordingly, the order dated 24th April, 2009 passed in OA-2359 of 2006 by the Tribunal is quashed. 9. In these circumstances, in our opinion, the impugned order of the Tribunal will have to be set aside. Accordingly, the order dated 24th April, 2009 passed in OA-2359 of 2006 by the Tribunal is quashed. The order passed in June, 2006 by the Deputy Director of Health Services is also quashed. In fact, when the Director of Health Services was directed by the Tribunal to consider the representation of the Petitioner, the order ought not to have been passed by the Deputy Director of Health Services. There would have to be complete compliance of the order of the Tribunal. One Officer cannot depute for another when the Tribunal has directed a particular Officer to consider the representation and pass the necessary orders. Accordingly, we direct the Respondents to issue a release order to the Petitioner from Dhadinga Sub-Centre within two weeks from today. The Petitioner will be permitted to report at Bankadaha Sub-Centre immediately after the release order is issued to her. 10. The Petitioner would be entitled to salary for the entire period that she was not permitted to work at Bankadaha after 25th November, 2005 when she called upon the Respondents to permit her to report at Bankadaha after issuing release order. 11. The petition is allowed with costs quantified at Rs. 3,000/-. Photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible on compliance of all necessary formalities. Petition allowed