Consideration Of Promotion During Pendency Of Statutory Appeal Against Order In Disciplinary Proceedings May Legitimately Be Kept In Abeyance: Calcutta High Court

The High Court was considering a petition challenging the justifiability of the resolution adopted at the meeting of the Board of Directors, whereby decision was taken for re-hearing of the statutory appeal preferred by the petitioner against the penalty imposed by the Disciplinary Authority. The petitioner also assailed the legality of the decision of the Selection Committee by which consideration of petitioner’s promotion was deferred.

The Single Bench of Justice Partha Sarathi Chatterjee held, “Similarly, since the statutory appeal, which is a continuation of the disciplinary proceeding, is pending consideration, the decision of the Selection Committee and/or the Departmental Promotion Committee to keep the petitioner’s promotion in abeyance until a decision is taken in the said appeal cannot be faulted, as consideration of promotion during the pendency of the statutory appeal and/or during the currency of punishment may legitimately be kept in abeyance.”

Advocate Indranil Roy represented the Petitioner while Senior Advocate N. C. Behuni represented the Respondents.

Factual Background

The petitioner commenced his service career as an Assistant with the West Bengal Small Industries Development Corporation Ltd., a Government of West Bengal undertaking functioning under the Department of Micro, Small and Medium Enterprises and Textiles, Government of West Bengal. Subsequently, he was promoted to the post of Assistant Manager-II. On June 20, 2017, a contractual employee of the Corporation, lodged a complaint containing allegations against the petitioner. On the basis of the said complaint, an Enquiry Committee was constituted and thereafter, a charge-sheet containing two articles of charge was issued to the petitioner. Upon conclusion of the disciplinary proceedings, the Disciplinary Authority, imposed a penalty upon the petitioner reducing the petitioner’s pay by two stages in the time scale of pay for a period of two years with cumulative effect, thereby resulting in postponement of the earning of increments during the said period as well as future increments under Rule 45(b) of the Staff Regulations. Aggrieved by the penalty imposed, the petitioner preferred a statutory appeal.

The Executive Director of the Corporation issued an office order restoring the Petitioner’s pay band and service benefits to their original position. After a lapse of nearly two years, a departmental promotion process was initiated for filling up various promotional posts. The Selection Committee decided to keep the petitioner’s promotion in abeyance on the grounds of “public interest” until the decision of the Appellate Authority was received. Pursuant to the said decision of the Board, a notice was issued to the Petitioner directing him to appear for a fresh hearing of the appeal originally decided in 2020. The petitioner contended that the actions of the Respondent authorities in reopening a concluded appellate decision and in withholding promotion despite the Petitioner’s first position in the merit list were arbitrary.

Reasoning

The Bench explained that the Staff Regulations governing the field mandate that a statutory appeal preferred under Regulation 50(iii) of the Staff Regulations against an order of penalty imposed under Rule 45 shall be heard and/or disposed of by the Board of Directors. However, the Bench noticed that the Executive Director had revoked the penalty imposed upon the petitioner by the Disciplinary Authority, being the Managing Director.

The Bench was of the view that the statutory appeal was neither heard nor disposed of in the manner mandated by the Staff Regulations or by the authority prescribed by the Board of Directors. “Furthermore, the Executive Director had no jurisdiction to dispose of the appeal. Consequently, the order dated 13.07.2020, despite having been issued with the concurrence of the Chairman and Managing Director, is a nullity and void ab initio, fortified by the settled principle that an order passed by an authority lacking inherent jurisdiction is null and void”, it held.

Considering that an order passed without jurisdiction is void, the Bench held that any action taken pursuant thereto, including the implementation of the order revoking the penalty and the consequential restoration of benefits to the petitioner, was also devoid of any legal basis. As per the Bench, once the order revoking the penalty was found to be without jurisdiction, all subsequent proceedings emanating therefrom stood vitiated. “The proper course, therefore, is to restore the parties to the position as it existed prior to the passing of the invalid order”, it added.

The Bench also stated that, in view of the finding that the order revoking the penalty imposed upon the petitioner was issued by an authority lacking jurisdiction and was void, the benefits flowing therefrom were also unsustainable in law. “...it follows that the Board of Directors did not misdirect itself in recalling the said order dated 13.07.2020 issued by the Executive Director and in directing a fresh hearing of the appeal by the authority legally vested with such power”, the order read.

Thus, rejecting the contentions advanced by the petitioner, the Bench dismissed the petition.

Cause Title: Debanjan Guha Vs. State of West Bengal & Ors. (Case No.: WPA 21881 of 2022)

Appearance

Petitioner: Advocates Indranil Roy, Sunit Kumar Roy, Susmi

Respondents: Senior Advocate N. C. Behuni, Advocates Kamal Kumar Chattopadhyay, Rimi Chatterjee

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