Apu Karmakar vs State of West Bengal and Others

The Judgment of the Court was as follows:

Despite eloquent submissions made at the bar through Mr. Dibyendra Narayan Ray, learned Counsel appearing for the petitioner, we are sorry to say that we are not in a position to accede to his prayer allowing the petition. The difficulties are galore. The petitioner committed so many mistakes, as Mr. Ray wanted to term it as "mistake", we are unable to grant any relief to the petitioner. The petitioner was engaged as a CRPF Constable. He overstayed his leave of 20 days granted to him. He never joined. He made representation for his discharge initially by his own letter and then through his Advocate. The Authority vide memo dated December 07, 2005 appearing at page 40, categorically informed his Advocate that his prayer for discharge could not be considered as he was facing departmental proceeding, for his unauthorized absence. Mr. Ray, in his usual fairness, admits that his client did receive this letter contemporaneously. We, thus, safely take it that as on that date i.e. December 07, 2005 the petitioner was aware that his prayer for discharge was turned down and he was facing departmental proceeding for unauthorized absence. He neither challenged the said decision of the Authority rejecting his prayer for discharge nor appeared before the Authority defending the proceeding initiated by them for his unauthorised absence. The petitioner kept quite and appeared in a recruitment process conducted by the Kolkata Police for the post of constable. He was selected for the post and was given appointment provisionally vide letter dated December 26,2005 as we find from page 44 of the petition. He was asked to join by January 12, 2006 for training. He joined without informing Kolkata Police Authority about his engagement with the Central Government in CRPF. The Authority came to know about his past episode and immediately he was discharged from service with effect from January 25, 2006 along with one-month notice pay as appears from page 45 of the petition. Mr. Ray however, submits that he was not paid the amount, the Tribunal held it otherwise.

We find from the affidavit-in-opposition filed by the Central Government before the Tribunal that the CRPF. Authority ultimately dismissed him from service with effect from January 29, 2006. He challenged the order of discharge before the State Administrative Tribunal making CRPF. Authority a party. He prayed for relief to the extent of quashing of the order of discaharge dated January 25, 2006 coupled with an order of reinstatement, at the same time asking the CRPF. Authority to release him from service. Mr. Ray contends that when the application was filed the petitioner did not know of his punishment of dismissal from service, which he came to know for the first time when it was disclosed in the affidavit-in-opposition filed by the CRPF. Authority before the Tribunal, At the time of hearing, the petitioner did not press his prayer as against the CRPF Authority in fact he could not have pressed the same as by that time he had already been dismissed from service. His prayer for quashing of the order of discharge was turned down by the Tribunal. The Tribunal dismissed his application and in our view, very rightly. Hence, this application before us.

Mr. Ray has made a frantic effort to challenge the order of the Tribunal. According to him, the Tribunal should have called for the records to satisfy themselves as to whether the payment of one month salary was in fact made or not. He has relied upon two Apex Court decisions in the case Senior Superintendent, R.M.S., Cochin and Another Vs. K.V. Gopinath, Sorter, and Raj Kumar Vs. Union of India (UOI) and Others, to support his contention that mere payment of one-month salary at a later stage would not satisfy the requirement of law as it must be made simultaneously with the order of discharge. He also relies an unreported Division Bench decision of our Court in the case of Shri Samir Karati v. The State of West Bengal & Ors. (W.P.S.T. 589 of 2004) in this regard.

Mr. Ray contends that he was constantly writing to the CRPF. Authority for his discharge either personally or through his Advocate. He was expecting an order of discharge from the CRPF Authority, hence he did not think it relevant to disclose such fact before the Kolkata Police Authority at the time of entry in service. He was not aware of his dismissal prior to filing of the petition before the Tribunal. According to Mr. Ray, such mistake committed by the petitioner must not be fatal and must not take away his means of livelihood so guaranteed by the Constitution, more particularly under Article 21 thereof. He has relied on a latest Apex Court decision in the case of Commr. of Police and Others Vs. Sandeep Kumar, .

Mr. Ray further tries to contend that since the order of discharge was issued in the back-drop what has been discussed above, he should have been proceeded with a regular departmental proceeding giving him opportunity to defend the same.

Opposing the application Mr. Narayan Bhattacharjee, learned Counsel appearing for the State relies on the two Apex Court decisions in the cases of Rakesh Kumar Singh Vs. Committee of Management, Raibarali, and Food Corporation of India Vs. Bihar State Agricultural Market Board and Others, to negate the contention of Mr. Ray that one month pay, if not made simultaneously could be fatal. We find from the said decisions that the Apex Court was of the view that subsequent payment would also be valid and non-payment of one-month salary simultaneously would not be fatal. We, however, agree with Mr. Ray, these two later decisions of the Apex Court did not consider the earlier two decisions of the coordinate Bench. However, the later decision, in our view, would prevail.

On a careful reading of Regulation 66 of Calcutta Police Regulation, we do not find any clause making payment of one-month salary as condition precedent to discharge him from service.

We have considered the rival contentions. It is true that dismissal of the petition would amount to seal of approval on the deprivation on of the means of livelihood of the petitioner, which he got when Kolkata Police appointed him as constable. However, the difficulties galore are standing in the way to show sympathy to the petitioner. The petitioner accepted a public appointment when he was engaged as CRPF. Constable. He was proceeded with departmentally, where he suffered the order of dismissal from service. The order of dismissal from service would disentitle him to get any further public employment.

The petitioner was guily of material suppression of fact. He was a CRPF. Constable when he applied for the post of Kolkata Police Constable. He should have made such application through proper channel or at least informed the Kolkata Police Authority about his past engagement. He did not do so. The petitioner knew on December 07, 2005 that he was facing departmental proceeding for unauthorized absence. He accepted the order of appointment on December 26. 2005 and joined the post in Kolkata Police on January 12, 2006 without informing them about pendency of the disciplinary proceeding.

From the order of discharge, we do not find any stigma attached to him. The petitioner was dismissed from service; hence no departmental proceeding was required to discharge him.

The Tribunal very rightly rejected his petition that does not deserve any interference by this Court. The application fails and is hereby dismissed without any order as to costs. Urgent Xerox certified copy of this order, if applied for, be given to the parties, on priority basis.