Sri Hayagrib Naiya vs Diamond Harbour Municipality and Others

S. Pal, J.—In the writ petition, the petitioner an employee of the Diamond Harbour Municipality, has challenged the memo of suspension dated 29th November, 2013 passed under Rule 4(5) of the West Bengal Municipal Employee''s (Classification, Control, Appeal and Conduct) Rules 2010, (the ''Rules'' for short) by which he was deemed to have been suspended subject to the explanation which was to be offered by him and the memo dated 11th December, 2013 both issued by the Chairperson of the Municipality. The matter was taken upon 14th February, 2014 when direction was issued to file affidavits. Affidavits have since been exchanged and are on record.

Mr. Ashis Sanyal, learned advocate appearing on behalf of the petitioner submitted that as under Rule 4(5) of the Rules substantive order is to be passed, show cause notice was issued. The petitioner had replied. However, the impugned memo dated 11th December, 2013, which is a mere repetition of the memo dated 29th November, 2013, does not contain a formal order of suspension. Submission was when authority has been conferred on the Chairperson to pass an order, it has to be exercised in complete compliance of the Rules.

Mr. Partha Sarathi Basu, learned advocate for the Municipality, relying on the affidavit in opposition submitted since by memo dated 29th November, 2013 explanation was called for and the petitioner had responded by filing reply, which was considered and as criminal case is pending against the petitioner wherein charge sheet has been issued, the order of suspension is just and proper. Moreover as under Rule 11 of the Rules the order of suspension is an appealable order, the writ petition is not maintainable. Since the impugned memo dated 11th December, 2013 issued is legal, considering the gravity of the matter a loose sentence in the last part of the second paragraph of the memo dated 29th November, 2013 may be ignored. Learned advocate for the respondents had relied on judgments which shall be considered appropriately.

In order to appreciate the matter is necessary to set out the impugned memo dated 29th November, 2013 which is extracted hereunder:-

To Sri Hayagrib Naiya, Clerk Diamond Harbour Municipality

Date 29.11.13

Sub: Absence without leave for the period from 14.11.13 to 28.11.13

As per Attendance Register it appears that you are absenting yourself in office from 14.11.13 to 28.11.13 without any intimation. A DP hearing against you was fixed on 19.11.13 at 12:30 PM, where you were asked to appear with your defense witnesses vide this office Memo No. 16/(3)/DP/EO/Conf/2013 dated 04.11.13 and 17/15/DP/EO Conf/2013 dated 04.11.13 on that date 19.11.13 at 12:30 PM. Your Ld. Advocate appeared on the date 19.11.13 and informed the Inquiring Officer and Executive Officer, Diamond Harbour Municipality for the instant DP case by placing an application that you were in custody of Diamond Harbour Correctional Home in connection with P.S. case no. 597/13. Now it appears that you were in custody for a period exceeding 48 Hours.

In the aforesaid circumstances under the rule 4(5) of the West Bengal Municipal Employees'' (Classification, Control, Appeal & Conduct) Rules, 2010, you will be deemed to have been suspended with effect from 14.11.13 subject to your giving an explanation to the contrary within 7 days from 29.11.13.

Chairperson Diamond Harbour Municipality

(Emphasis supplied)

Pursuant to the said memo, the petitioner had filed the reply. Thereafter the Chairperson of the Municipality had issued a memo dated 11th December, 2013 which is set out hereinbelow:-

Memo No.: 948/Personal/(H. Naiya)/DHM/13

Date: 11.12.2013

To Shri Hayagrib Naiya, Clerk (now under suspension) Diamond Harbour Municipality

Sub: Reply of Explanation dated 05.12.2013 by Shri Hayagrib Naiya, Clerk.

Ref: This Office Memo No: 909/Personal/(H. Naiya/DHM/13, Dated: 29.11.2013

With reference to the subject mentioned above, you are asked to furnish all the details of the Criminal Case records as mentioned by you in your explanation in Para (iii) of Page-4 within seven days from the date of receipt of this letter.

This may further be noted that the reference dated: 29.11.2013 served on you where it was mentioned that you will be deemed to have been suspended, has been given full effect of such Suspension Order with effect from that date 14.11.2013.

Your contention of your attending duty in the office is grossly untenable in view of the clear order of Suspension also served on you having made effective from 14.11.2013.

Chairperson Diamond Harbour Municipality

(Emphasis supplied)

In this context it is appropriate to refer to Rule 4(5) of the Rules which is as under:-

Conditions for placing an employee under suspension.-

(5) An employee who is detained in custody for a period exceeding forty eight hours under any law providing for preventive detention or as a result of a proceeding either on a criminal charge or otherwise, shall be deemed to have been suspended, by an order of the appointing authority, with effect from the date of his detention and shall remain under suspension until further orders. An employee who is undergoing a sentence of imprisonment shall also be dealt with in the same manner, pending, a decision on the disciplinary action to be taken against him.

Evidently from the impugned memo dated 29th November, 2013 it is clear that under Rule 4(5) of the Rules the petitioner was "deemed" to have been suspended with effect from 14th November, 2013 which was subject to the explanation to be furnished by him. Therefore, the deeming order of suspension was dependent on the explanation. Since the petitioner had replied to the show cause notice, it was incumbent on the part of the Chairperson, the appointing authority, to pass a formal or a substantive order. However as the memo dated 11th December, 2013 does not contain formal order of suspension, the impugned memo dated 29th November, 2013 and the memo dated 11th December, 2013 are illegal and cannot be sustained. The law laid down in Ramchandra Keshav Adke (Dead) by Lrs. and Others Vs. Govind Joti Chavare and Others, particularly in paragraph 25 thereof, relied on behalf of the respondent, rather supports the case of the petitioner as the authority should have followed the method which they had chosen to adopt. The facts in the judgment in Union of India (UOI) and Others Vs. Udai Narain, and in Principal, J.D. Patil Sangludkar v. Ganesh: (2003) 9 SCC 164 are not applicable as in the case in hand the impugned memo dated 11th December, 2013 does not contain formal order of suspension though the deemed suspension pursuant to the impugned memo dated 29th November, 2013 was subject to the explanation to be given by the petitioner. Therefore, the impugned memo dated 29th November, 2013 and the impugned memo dated 11th December, 2013 are set aside and quashed. So far the point of maintainability is concerned, I am of the view as the Chairperson failed to exercise jurisdiction by not passing an order and as the memo dated 11th December, 2013 does not contain reason and order and as in that event filing of an appeal becomes otiose, the writ petition is maintainable. Hence, the writ petition is allowed. As prayed for on behalf of the petitioner the Diamond Harbour Municipality and its Chairperson shall release the dues, if any, with regard to subsistence allowance within four weeks from the date of presentation of a copy of the certified copy of this order. However, it is made clear that this order will not prevent the Diamond Harbour Municipality, its Chairperson and its Board of Councillors, the respondent nos. 1,2 and 3 to proceed in accordance with law.

No order as to costs. Urgent photostat certified copy of this judgment, if applied for, be furnished to the appearing parities on priority basis.