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Nepal Chandra Guchait Vs. District Magistrate and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCivil Rev. No. 328(W) of 1962
Judge
Reported inAIR1966Cal485,[1966(12)FLR88],(1966)IILLJ71Cal
ActsConstitution of India - Articles 226, 311 and 311(1)
AppellantNepal Chandra Guchait
RespondentDistrict Magistrate and ors.
Appellant AdvocateArun Kumar Dutt and ;Nandalal Pal, Advs.
Respondent AdvocateManjusri Dutta and ;B.C. Dutta, Advs.
DispositionPetition partly allowed
Cases ReferredSatkari Chatterjee v. Commr. of Police
Excerpt:
- .....petitioner of february 1, 1955, the petitioner was appointed a driver in burwan national extension service block. the appointment was temporary and terminable without notice. on january 6, 1957, the petitioner, it appears from the affidavit-in-opposition, was transferred to kandi block. thereafter, the petitioner was ordered to be transferred to bharatpur block i, with effect from june 1, 1961, by an order, made by the sub-divisional officer of kandi. the petitioner did not comply with the order. he applied for leave and also made a representation against the order of transfer, emphasising upon his personal difficulties. before leave was granted, it is alleged, the petitioner went away. because of the limited nature of the arguments made in this rule, on behalf of the petitioner. i need.....
Judgment:
ORDER

B.N. Banerjee, J.

1. By an order made by the respondent Block Development Officer and communicated to the petitioner of February 1, 1955, the petitioner was appointed a Driver in Burwan National Extension Service Block. The appointment was temporary and terminable without notice. On January 6, 1957, the petitioner, it appears from the affidavit-in-opposition, was transferred to Kandi Block. Thereafter, the petitioner was ordered to be transferred to Bharatpur Block I, with effect from June 1, 1961, by an order, made by the Sub-divisional Officer of Kandi. The petitioner did not comply with the order. He applied for leave and also made a representation against the order of transfer, emphasising upon his personal difficulties. Before leave was granted, it is alleged, the petitioner went away. Because of the limited nature of the arguments made in this Rule, on behalf of the petitioner. I need not concern myself with the narration of the events following thereafter until the stage when the petitioner was charged with misconduct by a Memo, dated January 2, 1962, couched in the following language:

'Particulars of charges:

Whereas

1. You Sri Nepal Chandra Guchait, Jeep Driver, kandi Block were transferred from Kandi Block to Bharatpur I Block under the lawful orders of the Sub-divisional Officer, Kandi, under the former's memo. No. 4833 (2) dt. 30-5-61 and that order was duly communicated to you on 31-5-61. But to evade the said lawful orders of the Sub-divisional Officer, Kandi you submitted an application for leave from 1-6-61 to 15-6-61 on the self-same date and left for Doomka without waiting for orders on your leave application.

2. The order of the Block Development Officer releasing you on 1-6-61 in the forenoon as per this office No. 1609 dt. 1-6-61 was sent to you at your leave address but the registered cover containing the release order was refused by you for reasons best known to you. This is another act of insubordination and disregard to lawful authorities

And Whereas

3. You left the vehicle in the Block garage without making over the old spare parts, and repairing tools to present driver or to the storekeeper of the Block. This tantamounts to neglect of duty and disregard of official rules and regulations. Further you were asked under this office No. 2389 dated 25-7-61 to return all old parts to the present driver. But it appears from the service peon's report dt. 26-7-61 that you refused to accept the letter. This is another instance of flouting the orders of superior authorities.

And Whereas

4. The Block Development Officer, Bharatpur I in pursuance of Subdivisional Officer, Kandi's memo. No. 7946 dt, 18-8-61 issued order to you to join the Block as per his No. 3485 dt. 23-8-61 and you were again reminded to Join the said Block as per Block Development Officer, Bharatpur I's memo No. 3734 dt. 14-9-61. You, without paying any attention to the said orders of the Block Development Officer, Bharatpur I and Sub-divisional Officer, Kandi, preferred a representation direct to the District Magistrate, Murshidabad seeking instruction as to whether you should join Bharatpur I Block or not. This is a clear case of misbehaviour and calls for departmental action.

And Whereas

5. You absented yourself without any leave application from 14-8-61 till date.

And Whereas

6. You absented yourself for a period of nearly 7 months in contravention of Rule 164 (3) of W. B. S. R. part I (revised) read with Sub-rule (b) of Rule 174 of W. B. S. R. part I (revised).

In view of the charges from 1 to 6 detailed above-

It is hereby ordered that

In pursuance of District Magistrates order No. 3129-Dev. dated 17-11-61 and G. O. No. 10203 GDP dt. 13-10-61 you are asked to show cause by 15-1-62 why (a) you should not be discharged from service with effect from 1-6-01'. The petitioner did not show cause within the time allowed. The Block Development Officerwaited up to February 12, 1962 and thereafter passed the following order:

'In pursuance of the powers delegated to me under Govt. of West Bengal Department of C.D. and B. S. G. O. No. 10203 CDP dated 13-10-61 received with District Magistrate, Murshidabad's memo No. 3219 Dev. dt. 17-11-61 and this office memo No. 8 dt. 3-1-62 served on Sri Guchait on 4-1-62 it is hereby ordered that Sri Nepal Chandra Guchait Driver is discharged from his service with retrospective effect from 1-6-61.'

That order was challenged before me on the following three-fold grounds:

(a) There had not been any valid delegation of power to the Block Development Officer to dismiss the petitioner and as such the order was bad.

(b) The order of dismissal was violative of the principles of natural justice inasmuch as copies of certain documents as demanded by the petitioner were not made over to him.

(c) The order of dismissal with retrospective effect was in any event bad.

2. The first two grounds may be shortly disposed of. The Block Development Officer was the appointing authority of the petitioner and no question of delegation of authority to him over again arises, although, curiously enough, the Block Development Officer himself relied upon a delegation of authority to him. The first ground, therefore, is not of much substance.

3. The second ground is also equally unsubstantial. The petitioner did not show cause to the charges. He did not participate in the enquiry against him. He asked for certain documents after the order had been made against him. The authorities were not bound to give copies to the petitioner after the departmental proceeding was over. I do not, therefore, find any substance in the second ground as well.

4. The last ground, however, merits consideration. In the case of Sudhir Ranjan Halder v. State of West Bengal, : (1961)IILLJ283Cal a Division Bench o this Court (of which I was a member) pronounced the view:

'Suspension or dismissal or removal from service with retrospective effect has always been condemned by the Court as illegal and invalid. Reference in this connection need only be made to the cases reported in Hemanta Kumar Bhattacharjee v. S.N. Mukherjee, : AIR1954Cal340 A. R. S. Choudhury v. Union of India, AIR 1956 Gal 662. Damodar Vally Corporation v. Provat Ray, 90 Cal WN 1023, Abdul Hamid v. District School Board, 24 Parganas, 61 Cal WN 880, Amudya Kumar Sikdar v. L.M. Bakshi, : AIR1958Cal470 , Satyendra Kumar Dutta v. Administrator, District Board, 24 Parganas, : (1959)ILLJ585Cal , and a judgment by Bose, J. in Civil Revn Case No. 2243 of 1951 (Cal). Ajit Kumar Ghoeh v. Divisional Supdt. Eastern Rly--unreported.

Mr. Bankim Chandra Banerjee, learned Advocate for the State, did not attempt to support the retrospective part of the order of dismissal. He, however, contended that its prospective partwas good and should be upheld. In support of his contention he relied upon a judgment of Sinha, J. in Akloo v. Chief Executive Officer, Corporation, Calcutta--unreported. In the un-reported decision aforementioned, an employee of the Corporation of Calcutta was dismissed from service with retrospective effect. The employee moved against the order and obtained a Rule from this Court. When the matter came up before Sinha, J., for hearing, the learned Counsel for the Corporation made it clear thatretrospective operation would not be given to the order. Thereupon his Lordship ordered as follows:

'Mr. Hazra appearing on behalf of the Corporation states that the Corporation had no intention of making it retrospective, and therefore, it is declared that this order of dismissal dated 26/27th March, 1957 will be only valid as and from the date when it was made.' The declaration as above was made by Sinha, J. on a concession by me Corporation that it would not dismiss the employee with retrospective effect. We do not think that his Lordship laid down any proposition that if an order for dismissal was made with retrospective effect, the prospective portion of the order always stood saved. The difficulties in the way of laying down such a proposition are many. A court of law does not sit in appeal over an order of dismissal made by an executive authority in a disciplinary proceeding and as such has no power to modify such an order. If such an authority passes an order of dismissal with retrospective effect, it may not be easy to separate the retrospective portion from the prospective portion of the order, because if the authority had not made the order retrospective, it is difficult to say from which other date the authority would have made the order effective. It may not always be that otherwise the authority would have made the order effective from the date of the making of the order, it might as well be that the authority would have otherwise made the order effective from the date of the service of the order on the delinquent. Since a court of law has no power to make a proper order for dismissal on behalf of the executive authority and since indication may be lacking in the impugned order itself, as to from which other date it would have commenced, had it not been retrospective, it may not always be easy to draw a line between the retrospective and the prospective part of the order and to uphold the prospective operation of the order. We need not, however, make much of this point in this appeal'.

5. The above decision was considered by Sinha, J. in Satkari Chatterjee v. Commr. of Police, : (1966)ILLJ654Cal , in course of which his Lordship quoted a part of the above passage and observed:

'The concluding portion of his Lordships judgment shows that tie case was not decided on this point. It was decided on the point that the plaintiff had not received a notice which save him a reasonable opportunity of defending himself in the departmental proceedings. I am mentioning this because if the learned Judges had laid down the law in this ease I should be bound by it'

His Lordship, however, generally agreed with the observations in Sudhir Haldar's case : (1961)IILLJ283Cal (supra) that if a court be called upon to make a new order of punishment, it must express its inability to do so.

6. I respectfully agree with the observations by Sinha, J. that the main ground on which the penal order was set aside in Sudhir Halder's case : (1961)IILLJ283Cal (supra) was that the disciplinary proceeding against the alleged delinquent was not conducted with due regard to the principles of natural justice. If the disciplinary action was itself vitiated on account of non-conformity with the principles of natural justice, then the penal order passed in such a proceeding would nave been, in any event, bad, even though the additional infirmity of the retrospective nature of the penalty had not attached to the order.

7. I do not, however, find any reason to depart from the general view expressed in Sudhir Halder's case (supra) that suspension or dismissal or removal from service with retrospective effect is illegal or invalid. Nevertheless, there may be exception visualised, as done by Sinha, J. in Satkari Chatterjee's case : (1966)ILLJ654Cal (supra) in which his Lordship observed:

'Where an order of suspension is made retrospectively, the retrospective part cannot be given effect to. It is not that the court dealing with such a matter must necessarily pass a new order. It is open to it to declare that the order made has an infirmity with regard to the retrospective part but that the prospective part is perfectly valid and should operate upon its own strength.'

The context in which his Lordship made above observation was as hereinafter indicated. The petitioner, in the case before his Lordship, was dismissed from service by an order dated November 15, 1957, with effect from November 11, 1957. This order was set aside by this Court on the ground that the charge-sheet was defective. The dismissal having been set aside the petitioner became entitled to continue in service. On April 5, 1963, he was given an order of posting but by the same order was suspended with effect from November 11, 1957. Sinha, J. relied upon the following observation made by Chakravartti, C.J., in : AIR1954Cal340 :

'There can be no meaning in suspending a man from working during a period when the period is past and has already worked or suspending a man from occupying a position or holding a privilege in the past when he has already occupied or held it.'

and held that the retrospective part of the order was bad for reasons elucidated by Chakravartti, C. J. in Hemanta Kumar Bhattacharjee's case, : AIR1954Cal340 (supra). In my opinion, the exception visualised by his Lordship is a pertinent one, because there was no sense in ordering suspension of an employee for a past period, during which he was in lawful service. It was possible in that case to separate the senseless portion of the order from the sensible portion. Sinha, J. did not lay down ageneral proposition that in all cases the retrospective part of the order of suspension or dismissal can be separated from the prospective part, because his Lordship himself observed:

'I entirely agree with Banerjee, J. when he says that the question must be decided on the facts of each case.'

8. That being the legal position, I have to see if the retrospective part of the penalty can be separated from the prospective part in the instant case. The dates to which I have already referred and which are repeated in the charge-sheet. hereinbefore quoted, go to show that the retrospective part of the penal order was senseless. The petitioner left Ms station of work on June 1, 1961, without waiting for formal sanction of his leave application. He was not penalised for this act of insubordination then and there, but was released from his duties in the circumstances hereinbefore stated. After several months, when he offered to join his duties, on August 12, 1961, he was not turned out but sanction of the Sub-divisional Officer was awaited in order to permit him to join. This would not have been so, if the petitioner had not been treated as on leave, may be on irregular leave. Thereafter, on August 18, 1961 and again on August 23, 1961, the petitioner was asked to join his duties at Bharatpur I Block. This is explicable only on the theory that the petitioner was treated as continuing in his service during the period of his absence. To have dismissed him thereafter with effect from June 1, 1961 was unmeaning and senseless, for reasons stated by Chakravartti, C. J. and thereafter by Sinha, J. in the two cases to which reference has already, been made. This retrospective part is severable from the prospective part of the order, that is to say, with effect from February 12, 1962, which latter part may remain operative in spite of the defect in the order.

9. I, therefore, quash the retrospective part of the order and uphold the prospective part. The petitioner shall be treated as dismissed with effect from February 12, 1963 and not from June 1, 1961.

10. This Rule succeeds in part. Let a Writof Certiorari quashing the retrospective part ofthe order issue. There will be no order as tocosts in this Rule.


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