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Amulya Ratan Nayek Vs. State of West Bengal - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 3437 of 1958
Judge
Reported inAIR1961Cal164,64CWN857,(1960)IILLJ502Cal,(1960)IILLJ502Cal
ActsConstitution of India - Articles 226 and 311; ;Bengal Subordinate Services (Discipline and Appeal) Rules, 1936 - Rule 10
AppellantAmulya Ratan Nayek
RespondentState of West Bengal
Appellant AdvocateNitya Ranjan Biswas, Adv.
Respondent AdvocateProdyot Kr. Banerjee, Adv. for ;J. Mazumdar, Adv.
Cases ReferredSubrata Kumar Chatterjee v. Deputy Chief Accounts Officer
Excerpt:
- .....of right. that being so, no writ under article 226 should issue from this court to grant such leave. rule 151 therefore expressly provides for this situation and emphasises the fact that the authority empowered to grant leave may refuse to grant such leave on the exigencies of public service. this court under article 226 cannot interfere with such discretion and convert itself into such authority to determine the exigencies of public service. no question however of leave now arises because of the voluntary resignation of the petitioner and what really is intended by this relief is to claim damages on the basis of wrongful rejection of leave at the rate of the salary. for reasons stated above and my previous decision in subrata kumar chatterjee v. deputy chief accounts officer,.....
Judgment:
ORDER

P.B. Mukharji, J.

1. This is an application by the petitioner, Amulya Ratan Nayek under Article 226 of the Constitution against the State of West Bengal and its officers in the Development Block of Birbhum and the Development as well as the Divisional Commissioners.

2. He claims a writ of mandamus for expunging the remark in his service book made by one Kedar Nath Thakur on the 3rd July, 1958, to the effect, 'An overseer of doubtful integrity', and secondly, for an order to grant him leave which he says he had earned from the 20th May, 1958, to the 7th June, 1938, and for one day on the 8th June, 1958. These are the only two reliefs which he sees.

3. The petitioner was an overseer of the Dubrajpur National Extension Service Block and got that appointment on the 29th March, 1957. Due to differences of opinion over his work and transfer, he tendered his resignation on the 18th July, 1958. His services were thereafter retained for a few days for finalisation of certain accounts and finally on the 22nd August, 1958, the Government released him from his office and accepted his resignation.

4. A remark by a superior officer in the service book of a servant cannot ordinarily be expunged by a writ under Article 226 of the Constitution. This particular remark was the opinion of the superior officer about the petitioner. The opinion was that the petitioner was a person of 'doubtful integrity'. It is not a final opinion nor a conclusive opinion to say that he is not a man of integrity. It is certainly an aspersion. It is not the opinion of the Government as such. It is the opinion o a superior officer about his subordinate and formed and entered in the ordinary course of administration. A superior officer must be free to express his sincere opinion about his subordinate and his work which he has to examine and supervise. Whether such opinion is right or wrong is not the question. So long as it is not mala fide and an abuse of authority, Courts will be reluctant to interfere with the opinion expressed by superior officers about the work of their subordinates in course of administration. Such remarks are not even censures. Censure may be a kind of penalty and there are Rules to say that Censure is a kind of penalty. Imposition of a penalty requires that the penalising authority should follow the Rules and the statutory procedure. The penalty of censure has to be delivered. These remarks or opinions about the subordinate officer were, in fact, never delivered or conveyed to the petitioner. What happened was that the petitioner wanted to see his service book and that was on the 16th July, 1958, the Government was good enough to show it to him and there he discovered this remark about him made by Kedar Nath Thakur Block Development Officer, Dubrajpur National Extension Service Block. For a remark to be a censure, it has to be delivered or communicated to the person concerned. As this remark was a mere opinion and was never delivered to the petitioner, it cannot be regarded as a censure. There is therefore, no statutory right or legal right of the petitioner on which he can found bis claim under Article 226 of the Constitution for a writ to expunge such remarks. Even if it were a censure, it appears that being a member of the subordinate service, the petitioner under Rule 10 of the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936, has no right. Rule 10 provides as follows :

(i) 'Without prejudice to the provisions of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, no order imposing a penalty specified in Rule 7, other than an order of censure or suspension pending proceedings or an order based on facts which have led to his conviction in a criminal Court, shall be passed against a member of a subordinate service unless the officer concerned has been given an adequate opportunity of making any representation that he may desire to make and such representation, if any, has been taken into consideration before the order is passed;''

The rest of the rule is not material for the present purpose. Apparently, even an order of censure would be excluded under this Rule 10. But then I am satisfied that this remark is only an opinion and is not a censure in any view of the matter. No constitutional safeguard has been infringed in this case under Article 311 of the Constitution, because this is not a case of dismissal or removal or reduction in rank. It will reduce administration to absurdity it the procedure for reasonable opportunity of showing cause was to be applied in every case a superior officer in due course of administration was about to enter in the Service Book a remark or opinion of his in respect of his subordinate officer.

5. The petitioner's claim therefore to expunge the remark from his service book must fail under Article 226 of the Constitution.

6. The other claim of the petitioner is for leave. He contends that this is earned leave. Here again he is met with the same difficulty. Even earned leave cannot be claimed as of right. If the leave is not earned, no question of leave can arise except on medical grounds or other extraordinary reasons recognised by the Rules. It is only when the leave is earned that the question of getting it arises. Under Rule 145 of the West Bengal Service Rules, 'leave is earned by duty only.' Thereafter, it is expressly provided by Rule 151 :

'Leave cannot be claimed as of right. When the exigencies of the public service so require, discretion to refuse or revoke leave of any description is reserved to the authority empowered to grant it.'

It is, therefore, clear that leave cannot be claimed as a matter of right. That being so, no writ under Article 226 should issue from this Court to grant such leave. Rule 151 therefore expressly provides for this situation and emphasises the fact that the authority empowered to grant leave may refuse to grant such leave on the exigencies of public service. This Court under Article 226 cannot interfere with such discretion and convert itself into such authority to determine the exigencies of public service. No question however of leave now arises because of the voluntary resignation of the petitioner and what really is intended by this relief is to claim damages on the basis of wrongful rejection of leave at the rate of the salary. For reasons stated above and my previous decision in Subrata Kumar Chatterjee v. Deputy Chief Accounts Officer, Eastern Railway, : (1959)ILLJ141Cal , I am disinclined to use the Constitution to enable the petitioner to earn damages for what he describes to be a wrongful rejection of his application for leave. In fact, there was doubt whether he had even earned it as the Government letter of the 22nd May, 1958, definitely informed him that the petitioner's leave application dated the 20th May, 1958, could not be granted from the Dubrajpur end as it was not due. In fact, the petitioner applied for leave only after he had been ordered to be transferred to Labour.

7. These are the only two grounds which were urged before me. Both the grounds fail.

8. There was another ground made in petition that his memorial and appeals were withheld but that ground was not pressed before me for the reason that the petitioner's advocate conceded that as the petitioner had resigned voluntarily and was no longer a Government servant his further administrative appeals did not lie since he had ceased to be a Government servant.

9. For these reasons, the petition is dismissed and the Rule is discharged. There will be no order as to costs.


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