SYED MOSARAF HOSSAIN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The petitioner was appointed as a Health Assistant in a Health Centre at Bankura with effect from July 26, 1986. He was suspended with effect from July 26, 1990. He challenged the order of suspension by filing a writ petition before this Court. He was subsequently proceeded in a departmental enquiry as per the charge sheet dated December 9, 1994. As par the charge sheet, although he was a mere Health Assistant having no medical qualification he posed himself as a doctor and continued to do private practice at his residence by accepting money as his professional fees. As per the second charge, in view of his wrong treatment a patient died. Before issuance of the order of suspension, a confidential and secret investigation was made by the State through one P.C. Das, a Vigilance Inspector. Shri. Das examined fourteen witnesses and seized various documents while conducting the investigation.The enquiry officer conducted the enquiry. He examined a number of witnesses including one medical shop owner who admitted to have provided prescription pad having printed the name of the petitioner posing himself as a doctor. The enquiry officer ultimately came to a conclusion that the first charge with regard to private practice by accepting fees was partially proved whereas the second charge could not be proved. The Director, Health Service upon going through the enquiry report and agreeing with the finding thereon, imposed a punishment of compulsory retirement that became the subject matter of challenge in an appeal. The appellate authority confirmed the order of the disciplinary authority dated July 13, 2001 vide order dated August 01, 2002. The petitioner challenged the order of the disciplinary authority so merged in the order of the appellate authority before the Tribunal. The learned Tribunal set aside the order and directed reinstatement with the 50% admissible back wages and other benefits vide order dated June 9, 2007.

(2.) Being aggrieved, the State filed an application before this Court being WPST 22 of 2008. The Hon'ble Division Bench modified the order of the Tribunal by granting opportunity to proceed with the enquiry de novo. The Hon'ble Division Bench was however silent on the issue of reinstatement and back wages. The authority re-enquired the matter and ultimately imposed the identical punishment. The petitioner again challenged the order of the disciplinary authority. The learned Tribunal vide judgment and order dated December 19, 2008 passed in O.A. No. 820 of 2008 set aside the order again and asked the authority to start proceeding de novo from the stage of second show cause notice. The parties accepted the order of the Hon'ble Division Bench and thus the proceeding up to the stage of issuance of second show cause notice reached finality. The authority again passed an identical punishment vide order dated March 12, 2009 that became the subject matter of challenge in a third round of litigation before the Tribunal being O.A. No. 762 of 2009. The Tribunal vide judgment and order dated January 11, 2011 modified the order of the Tribunal to the extent that the order of the Director of Health Service imposing punishment of compulsory retirement would be effective from March 12, 2009. However, the petitioner would get notional benefit between the period he last joined his duty till March 12, 2009 without any arrears salary.

(3.) Being aggrieved, the petitioner challenged the order of the Tribunal as according to the petitioner the Tribunal should have set aside tile order again as it was mechanically passed without any reason assigned. The State however did not challenge the said order to the extent where the petitioner was extended the notional benefit till March 12, 2009.