The State of West Bengal and Ors. Vs. Sri Sanjib Roy & Anr.
West Bengal Service Rules, Part-1
Rules 34(3), 174, 175 – Termination – Unauthorised absence – No procedure prescribed under law followed – Even proceedings not initiated. Held that High Court has rightly set aside the order and is unassailable. Appeal by State dismissed. (Para 3)
1. This appeal is directed against the order of the Calcutta High Court, interfering with the order of the State Administrative Tribunal. Respondent no. 1 who was an employee under the Govern-ment, absented himself from 3.8.84, his services stood terminated on 16.9.1985 in purported exercise of power under Rule 34(3) of West Bengal Service Rules Part-I read with Rule 175(II) w.e.f. the date of his unauthorised absence.
2. The respondent initially filed a representation and then approached the High Court by way of a writ petition. On coming into force of the Administrative Tribunals Act and the State Administrative Tribunal having been formed, the writ petition stood transferred to the State Tribunal. The Tribunal dismissed the application taking into account the delayed approach of the employee. The respondent then assailed the order in the High Court. The High Court in the impugned judgment came to the con-clusion that while terminating the services of the respondent no.1, no procedure prescribed under law has been followed and therefore merely because he has approached the court after some lapse of time the court’s power to interfere with the same is not taken away altogether. The High Court also took into account the provisions of Rule 34(3) as well as Rule 174(II) of the West Bengal Service Rules Part I and came to hold that this provision confers a right on the disciplinary authority to initiate the proceedings for wilful absence from duty after expiry of leave, but since admittedly no proceedings had been initiated and the order of termination has been passed without initiating proceed-ings, the order is non est. The High Court accordingly set aside the order of termination and directed reinstatement but did not grant any backwages though it was stated that the seniority of the respondent no. 1 would not be disturbed and continuity of his service has to be maintained. The High Court further observed that the authorities concerned may take appropriate action in accordance with law. It is against this order of the High Court, the present appeal has been preferred.
3. The learned Counsel appearing for the appellants vehemently contended that since the respondent had not approached the court for redressing his grievances for unduly long period, the High Court committed error in interfering with the order of termina-tion notwithstanding the fact that without initiating any pro-ceeding and without following the prescribed procedure, the order of termination has been passed. We are unable to sustain this argument. On the conceded position that the termination order had been passed without following the prescribed procedure and with-out even initiating a proceeding and the concerned authority having been given the right to take such appropriate action in accordance with law afresh, the impugned order is unassailable.
4. In the aforesaid premises, we see no justification for our interference in this matter. The appeal accordingly fails and is dismissed.