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2017 DIGILAW 661 (CAL)

Swapan Kumar Chowdhury v. Union of India

2017-08-04

NISHITA MHATRE, TAPABRATA CHAKRABORTY

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JUDGMENT : Tapabrata Chakraborty, J. 1. The subject matter of challenge in the present writ petition is an order dated 25th July, 2014 passed by the Central Administrative Tribunal, Calcutta Bench in original application being OA 1076 of 2012. 2. Mr. Mukherjee, learned advocate appearing for the petitioner submits that while the petitioner was working in the post of Transportation Inspector at Krishnanagar he was transferred and posted as Station Superintendent at Ranaghat by an order dated 26th September, 2011 passed by the respondent no.5. As the petitioner did not join the transferred post a show cause notice dated 9th December, 2011 was issued in response to which the petitioner submitted a representation on 18th December, 2011 stating, inter alia, that from 26th September, 2011 he was sick and was under the treatment of the Senior Divisional Medical Officer, Ranaghat and as such he was not fit to join his duty. The said representation was, however, not considered and the petitioner’s salary was stopped from the month of November, 2011. Such fact was again communicated to the respondent no.5 by a representation dated 11th January, 2012 but in vain. Aggrieved thereby, the petitioner preferred an original application being OA 205 of 2012 and the same was disposed of by an order dated 13th March, 2012 directing the respondent no.4 to consider the petitioner’s representation and to pass a reasoned order. Pursuant to such direction the respondent no.4 passed an order on 11th April, 2012 observing that the petitioner’s absence was unauthorised and that he would not be paid any salary for the said period and that his actions warrant initiation of a departmental proceeding. Immediately thereafter, the petitioner was issued a major penalty charge sheet on 6th/13th June, 2012. Aggrieved by the order dated 11th April, 2012 and the major penalty charge sheet dated 6th/13th June, 2012, the petitioner approached the learned Tribunal by filing an original application being OA 1076 of 2012. In the same, initially an order was passed on 18th December, 2012 directing the respondents to allow the petitioner to join at his transferred place in terms of the order dated 26th September, 2011. In spite of the said order the petitioner was not allowed to join the transferred post and as such he preferred a contempt application being CPC 86 of 2012. In spite of the said order the petitioner was not allowed to join the transferred post and as such he preferred a contempt application being CPC 86 of 2012. The petitioner was thereafter allowed to join as Station Superintendent at Ranaghat on 10th January, 2013 and recording such fact the contempt application was dismissed by an order dated 14th January, 2013. Thereafter a letter dated 31st January, 2013 was issued to the petitioner by the respondent no.4 alleging that after joining at Ranaghat on 10th January, 2013 the petitioner was advised to report to the respondent no.4 at Sealdah but as he failed to do so, “G37” could not be issued in his favour for special medical examination. Disputing such statement the petitioner submitted a letter dated 2nd February, 2013 and such fact was brought to the notice of the learned Tribunal in the pending original application and by an order dated 5th March, 2014 the learned Tribunal directed the respondents to conduct the required medical examination and to allow the petitioner to perform his duty at Ranaghat and to pay his regular salary as the petitioner has voluntarily presented himself for joining. Pursuant to the said order the petitioner was sent for special medical examination on 7th May, 2014 and the petitioner was officially allowed to join on 6th June, 2014 but his arrear salaries were not released. Subsequent thereto, OA 1076 of 2012 was dismissed by the order dated 25th July, 2014. The petitioner preferred an application for review of the said order but the same was also dismissed by an order dated 31st March, 2015. Though the petitioner was allowed to join at Ranaghat he was asked to undergo a refresher course of 6 + 3 days which was not required in terms of the rules since the post of Station Superintendent is a Supervisory post. Challenging such action of the respondents, the petitioner filed an original application being OA 350/01262/2014 but the same was dismissed by an order dated 15th May, 2015. In the midst of pendency of the above original applications the respondents, however, proceeded with the disciplinary proceeding. 3. He further submits that challenging the impugned order dated 25th July, 2014 the petitioner preferred the present writ petition on 3rd March, 2015. In the midst of pendency of the above original applications the respondents, however, proceeded with the disciplinary proceeding. 3. He further submits that challenging the impugned order dated 25th July, 2014 the petitioner preferred the present writ petition on 3rd March, 2015. Notice of the said application was served upon the respondents who obtained repeated adjournments and did not file the affidavit in opposition within the time as directed by the Hon’ble Court. On one hand the respondents took adjournment and on the other hand a final order was passed in the disciplinary proceeding on 6th/13th June, 2012 and a penalty of removal from service was imposed upon the petitioner. Such fact was brought to the notice of the Hon’ble Court by an application being CAN 1970 of 2016 and by an order dated 17th June, 2016 the Hon’ble Court was pleased to stay the order of removal until further orders observing, inter alia, that “the respondents have been playing hide and seek with the petitioner and unfortunately with the Court as well”. 4. According to Mr. Mukherjee due to the alleged merger of cadres as per the decision of the Railway Board dated 9th October, 2013, the petitioner was transferred and as such decision was quashed by orders passed by the Central Administrative Tribunal, Delhi and by the Central Administrative Tribunal, Allahabad on 31st January, 2006 and 20th May, 2011 respectively, the respondents could not have transferred the petitioner from the post of Transportation Inspector to the post of Station Superintendent, Ranaghat which carries the same scale and grade pay. The order of transfer was bereft of public interest and as such the learned Tribunal ought to have set aside the same and the charge sheet which was issued as a retaliatory measure for not accepting the order of transfer. 5. He further submits that the respondents have acted in a most vindictive manner against the petitioner. As the petitioner was suffering from ailments he could not join the transferred place of posting. 5. He further submits that the respondents have acted in a most vindictive manner against the petitioner. As the petitioner was suffering from ailments he could not join the transferred place of posting. Such fact of ailment was intimated to the respondents but without considering the same, the respondents abruptly issued a show cause notice on 9th December, 2012 alleging that they had not received any intimation about the petitioner’s ailments though a perusal of the order dated 11th April, 2012 itself would reveal that the respondents received a certificate dated 2nd March, 2012 issued by the Department of Health and Family Welfare as regards the petitioner’s ailments. In spite of knowledge of such ailments the respondent no.4 observed in the said order that “technically the entire period from 26-9-2011 till the date of reporting for duty at Ranaghat Station (his present place of posting) will be treated as unauthorized absence and no salary is chargeable for this entire period”. 6. Drawing the attention of this Court to the final order of punishment dated 5th April, 2016, Mr. Mukherjee submits that a perusal of the same would reveal that the disciplinary authority was totally biased and was predetermined to impose the severest punishment upon the petitioner. The penalty was imposed since according to the disciplinary authority the petitioner, on one hand, absented himself from duty and on the other hand chose to prefer repeated original applications before the learned Tribunal which were ultimately dismissed. Without dealing with such arguments as advanced on behalf of the petitioner, the learned Tribunal dismissed the petitioner’s application. In support of his arguments, Mr. Mukherjee has placed reliance upon the judgments delivered in the case of Barun Chatterjee vs. State of West Bengal, reported in 2013(4) CHN (CAL) 562, in the case of Shantabrata Moitra vs. State of West Bengal, reported in 2013(4) CHN (CAL) 374, in the case of Member Secretary, Central Silk Board vs. Swapan Kumar Chakraborty, reported in 2013(4) CHN (CAL) 100 and in the case of Rajendra Singh and Others vs. State of Uttar Pradesh and Others, reported in (2009) 15 SCC 178 . 7. Per contra, Mr. Banerjee, learned advocate appearing for the respondents submits that transfer is an incident of service and the same can be interfered with in the event the same is issued on mere ipse dixit of any authority. 7. Per contra, Mr. Banerjee, learned advocate appearing for the respondents submits that transfer is an incident of service and the same can be interfered with in the event the same is issued on mere ipse dixit of any authority. The order of transfer does not suffer from such vice. The petitioner was determined not to join his transferred place of posting and as such he preferred repeated applications before the learned Tribunal. 8. He further submits that the petitioner has approached this Court with unclean hands. In the present petition it has been suppressed that the petitioner was issued a major penalty charge sheet which he received on 18th June, 2012. In connection with the present writ petition the petitioner filed four supplementary affidavits but the material facts were not disclosed before this Court and the Hon’ble Court was mislead to pass the order on 17th June, 2016 staying the order of removal. 9. According to Mr. Banerjee, in OA 1076 of 2012 the petitioner challenged the order passed by the respondent no. 4 dated 11th April, 2012 and also the charge sheet dated 6/13th June, 2012. No interim order was passed staying the operation of the charge sheet and as such there was no embargo upon the respondents to proceed with the disciplinary proceedings. The respondents held a full-fledged enquiry in which the petitioner duly participated. The enquiry report was also served upon the petitioner but he did not reply to the same. Upon considering all material facts, the disciplinary authority passed a final order of punishment on 5th April, 2016. In view of issuance of the final order in the disciplinary proceeding a fresh cause of action has occasioned to seek redressal before an appropriate forum. 10. Mr. Banerjee argues that there is no infirmity in the order impugned in the present petition. The contention of the petitioner to the effect that the railway board decision dated 9th October, 2003 was not in force at the time of issuance of the order of transfer was not accepted by the learned Tribunal on the reasoning that had the said railway board decision been not in force at that juncture, the promotional transfer of the petitioner from Deputy Superintendent to the cadre of the Transportation Inspector also becomes null and void. 11. 11. He further submits that it had always been the intent of the petitioner to remain absent on one pretext or the other. He challenged the order of transfer and thereafter sought for leave before the learned Tribunal to join the transferred post. Pursuant thereto, the petitioner was also allowed to join the transferred post. In respect of the said post the petitioner was required to undergo a training but he refused and chose to challenge such direction of the respondents before the learned Tribunal. The said original application was also dismissed and from such sequence the recalcitrant attitude of the petitioner is explicit. 12. Heard the learned advocates appearing for the respective parties and considering the materials on record. Indisputably, an interim order was passed by the learned Tribunal in OA 1076 of 2012 on 18th December, 2012 directing the respondents to allow the petitioner to join his transferred place of posting in terms of the order of transfer dated 26th September, 2011. By an order dated 5th March, 2014 the respondents were directed to conduct the required medical examination and to allow the petitioner to perform his duty at Ranaghat. The said orders were not challenged by the respondents and pursuant to the same the petitioner was allowed to join and in the medical examination he was found to be fit. There was a direct nexus between the order of transfer and the show cause notice issued on 9th December, 2011 inasmuch as the allegation against the petitioner was that to avoid the order of transfer he remained absent. The period of absence of the petitioner was from 26th September, 2011 till he was allowed to join on 10th January, 2013 pursuant to the order of the learned Tribunal. 13. In the enquiry report dated 11th December, 2015 there is no specific finding that the petitioner was on unauthorised absence. In the said report it has only been observed that the petitioner was “never congenial to proceed the inquiry and he has taken refuge to different pleas, which may please be seen from his submission and other representations”. 14. 13. In the enquiry report dated 11th December, 2015 there is no specific finding that the petitioner was on unauthorised absence. In the said report it has only been observed that the petitioner was “never congenial to proceed the inquiry and he has taken refuge to different pleas, which may please be seen from his submission and other representations”. 14. In the order of punishment dated 15th April, 2016 the disciplinary authority arrived at a finding that the petitioner did not submit a sick certificate towards his ailments from a medical practitioner within 48 hours and that as such the petitioner was on unauthorized absence from 26th September, 2011 till 10th January, 2013. Such finding does not appear to be sustainable inasmuch as in the earlier order dated 11th April, 2012 the respondent no.4 arrived at a categoric finding that a certificate dated 2nd March, 2012 issued by the Department of Health and Family Welfare as regards the petitioner’s ailments was received by the office. The allegation that even after joining the transferred post on 10th January, 2013, the petitioner was on unauthorized absence was not the subject matter of the charge sheet. In the said order it has also been observed that “though Sri Swapan Kr. Chowdhury has remained absent from duty but at the same time he has gone to court on various issues and lost all the cases in the court against the administration” and that “he is not at all interest in serving the Railway and it also supports the part that he does not need any assistance to support his family as he has been supporting his family since his absence. So he does’nt require sympathetic consideration” and that “A person when can’t give any output to Railway for four years has not reason to continue to be Rly. Employee. So, he should be immediately removed from the service as he was given ample opportunity to prove his innocence during enquiry but he continues to avoid or not co-operate with E.O on flimsy grounds rather than defending himself legally”. It appears from such observations that the fact that the petitioner had preferred repeated applications before the learned Tribunal was primarily the cause towards imposition of the punishment of removal from service. 15. It appears from such observations that the fact that the petitioner had preferred repeated applications before the learned Tribunal was primarily the cause towards imposition of the punishment of removal from service. 15. In the case of Krushnakant B. Parmar Versus Union of India and another reported in 2012(2) Supreme 254 it has, inter alia, been observed that “if the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful” and that “absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant”. Similar view has been expressed by the Hon’ble Division Bench of this Court in the case of Dilip Mukherjee vs. The State of West Bengal & Others, reported in 2012(3) CHN 166 to which one of us (Mhatre, J.) was a party. 16. Neither the enquiry officer nor the disciplinary authority nor the appellate authority did come to any positive finding that the absence was willful. Mere absence from duty without application or prior permission is unauthorised absence, but it does not ipso facto become wilful unauthorised absence. 17. However, it needs to be appreciated that the conduct of the petitioner was also not flawless. Even after joining the transferred place of posting when he was directed to attend the training course, he refused and approached the learned Tribunal challenging such direction of the respondents. The original application preferred to that effect was also dismissed. The petitioner was transferred from Krishnanagar to Ranaghat and in view of the distance between the two places, the petitioner would not have suffered any insurmountable inconvenience and that the transfer order did not have the effect of demoting the petitioner. The charge sheet dated 6th/13th June, 2012 was under challenged in OA 1076 of 2012 and in the same no order was passed restraining the respondents from proceeding with the disciplinary proceeding and as such there was no illegality on the part of the respondents in proceeding with the same and in which the petitioner participated. 18. The charge sheet dated 6th/13th June, 2012 was under challenged in OA 1076 of 2012 and in the same no order was passed restraining the respondents from proceeding with the disciplinary proceeding and as such there was no illegality on the part of the respondents in proceeding with the same and in which the petitioner participated. 18. The doctrine of proportionality is a well recognized concept of judicial review in our jurisprudence. The punishment imposed upon the petitioner is the severest of punishment under the rules and the same appears to be unduly harsh as it would have the effect of curtailment of the petitioner’s service tenure, affecting his means of livelihood. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. Due to the peculiar facts and circumstances involved in the lis, it would be iniquitous to direct the petitioner to contest a proceeding from the stage of supply of the enquiry report and in the conspectus of facts, we are of the opinion that the equities need to be balanced among the parties. 19. Accordingly, justice would be sub-served by modifying the penalty of removal from service as imposed upon the petitioner to a lesser punishment. The order of removal from service dated 15th April, 2016 is thus set aside and the respondents are directed to impose any other penalty upon the petitioner except the penalties of compulsory retirement and dismissal from service. The respondents shall reinstate the petitioner with continuity in service upon regularising the period of absence with the leave as available to the petitioner. The petitioner shall, however, not be entitled to back wages. In our opinion, the aforesaid punishment will be a sufficient corrective measure for the petitioner and will also meet the ends of justice, in the facts and circumstances of the present case. 20. With the above observations and directions the writ petition and the connected applications are disposed of. There shall, however, be no order as to costs.