SYAMAPADA GHORAI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) We had reserved our judgment on these two writ petitions on 5th August, 2019. While preparing the judgment, certain clarifications were required to be obtained from Mr. Datta, learned Advocate General representing the respondents. This necessitated placing of the writ petitions once again on board. After a long wait, we are fortunate that Mr. Datta has, at last, found time to appear before us today. The order reserving judgment stands recalled. On an earlier occasion, we had enquired from Mr. Datta the date on which Dr. Parthajit Banerjee, who was appointed inquiring authority to inquire into the charge levelled against the petitioner, had retired on superannuation. We are aghast to hear that instruction on this point is yet to reach Mr. Datta.

(2.) We record the submission of Mr. Bhattacharya, learned senior advocate for the petitioner that Dr. Parthajit Banerjee had retired on superannuation on 31st March, 2013 and was on extension for a further period of one year till 31st March, 2014. If the respondents contest the aforesaid submission of Mr. Bhattacharya, we wish that they indicate the actual date of retirement of Dr. Parthajit Banerjee on superannuation as well as the date of final cessation of employer-employee relationship upon re-employment in a written note to be handed over to the Assistant Registrar (Court) by Monday next (23rd September, 2019). In course of hearing, it was conveyed to Mr. Datta that we wished to look into the records relating to the disciplinary proceeding initiated against the petitioner and hence, the same may be produced. It was Mr. Datta's submission that unless the Court holds W.P.S.T. 55 of 2019 to be maintainable, the respondents may not be directed to produce the records. Mr. Datta contended that there was no decision of the tribunal in respect of whereof this Court in exercise of its powers under Article 226 of the Constitution could judicially review it while considering W.P.S.T. 55 of 2019. The order dated March 28, 2019 of the tribunal simply directed posting of O.A. 233 of 2019 on April 10, 2019 and no issue having been decided by the tribunal, this Court may not act as the court of first instance and decide the prayers made by the petitioner in such original application. The decisions of the Supreme Court reported in (2010) 4 SCC 554 (Rajeev Kumar v. Hemraj Singh Chauhan) and (2005) 10 SCC 110 (State of West Bengal v. Ashish Kumar Roy) were relied upon in support of such submission. Mr. Dutta had brought to our notice documents generated from the office of the tribunal to show that on March 28, 2019, the determination to consider O.A. 233 of 2019 rested with the third bench and it was placed before the first bench since the presiding member of the third bench was not available. However, any prayer for interim order not having been made by the petitioner, question of its refusal does not arise and hence the order of the first bench of the tribunal may not be faulted on any count.

(3.) While preparing our judgment, we had to necessarily look into the affidavits-in-opposition filed by the respondents dealing with the writ petitions. On the basis of the pleadings therein, we are more than satisfied that the first bench of the tribunal had declined interim relief as prayed for by the petitioner. We intended to refer to the issue in greater detail in our judgment that would follow. We had expressed our mind in that behalf and requested Mr. Datta to place before us the relevant records by Monday next. He made a prayer to defer delivery of the final judgment till after the Puja vacation. According to him, he has instructions to test the order, if any, passed by us directing the respondents to produce the records. In view of the aforesaid submission of Mr. Datta, we consider it to be our duty now to record why the objection to the maintainability of W.P.S.T. 55 of 2019 ought to fail. In paragraph 36 of W.P.S.T. 55 of 2019, the petitioner asserted that the tribunal "was pleased to refuse interim order" while adjourning hearing of O.A. 233 of 2019 till April 10, 2019 by its order dated March 28, 2019. Paragraph 36 of W.P.S.T. 55 of 2019 has been dealt with by the respondents in paragraph 15 of their affidavit-in-opposition. While denying and disputing the contents of paragraphs 34 to 36 and 49 save and except those which are matters of record, there is no specific denial of the assertion of the petitioner as in paragraph 36 referred to above. Instead of there being an assertion in such affidavit-in- opposition that no prayer for interim order was made on behalf of the petitioner, what we find from paragraph 4(j) of such affidavit is the pleading that for the reasons indicated in the preceding paragraphs, the tribunal "did not pass any interim order as prayed for by the petitioner herein" and W.P.S.T. 55 of 2019 being premature and devoid of merit, the same ought to be dismissed in limine. W.P.S.T. 55 of 2019 did contain prayers for interim relief. The contents of paragraphs 4(j) and 15 of the affidavit-in-opposition are sufficient to demolish the contention of Mr. Datta that no prayer for interim order was made on behalf of the petitioner before the tribunal and hence, there was no question of its refusal by the tribunal. We infer from the materials on record that prayer for interim relief had been made but the same was refused (without expressing such refusal in the order). In that view of the matter, we hold that W.P.S.T. 55 of 2019 as on the date of its presentation before this Court, i.e., April 17, 2019, was well-nigh maintainable.