The Union Of India And ORS. v. Harish Kumar

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE [CIRCUIT BENCH AT PORT BLAIR] ...

WP.CT/23/2022 The Union of India and others ... Petitioners Vs.

Harish Kumar ... Respondent Mr. Shatadru Chakraborty Mr. Ramendu Agarwal ... for the petitioners Mr. Arul Prasanth ... for the respondent November 16, 2022 [SR] Item No.5 Party/parties is/are represented in the order of their name/names as printed above in the cause title. Under challenge in this writ petition is the Order dated 8th April, 2022 passed by the learned Central Administrative Tribunal, Kolkata Bench. The Order impugned is an Interim Order by which the learned Tribunal granted leave to the respondents/Andaman Public Works Department (APWD) to continue with the Disciplinary Proceeding (DP) initiated against the applicant in the OA filed before the learned Tribunal and who is also the respondent to this writ petition, with the rider that no final Order be passed in the Disciplinary Proceeding.

The learned Tribunal took notice of the fact that since similar charges are pending in the criminal trial against the private respondent, prima facie there is likelihood of apprehension of prejudice to the right of protection against

disclosure of defence in the criminal trial which was initiated prior to the Disciplinary Proceeding (DP). Mr.

Shatadru Chakraborty, Learned Counsel appearing for the petitioners/APWD in this writ petition, submits that without requiring this Court to enter into the merits of the legality of continuing with the DP, the APWD be allowed to pass final order in the Disciplinary Proceeding since the private respondent is scheduled to retire on the 30th of November, 2022. The stand taken by the APWD is that in the event the date of retirement is crossed, the Disciplinary Authority(DA) shall be fettered in issuing the final Order in the Disciplinary Proceeding, which can be lawfully issued during the subsistence of the employeremployee relationship. Mr. Prasanth, Learned Counsel appearing for the private respondent, takes the stand that the Disciplinary Proceeding itself suffers from delay and laches.

In view of the long delay in instituting the Disciplinary Proceeding, the learned Tribunal thought it fit to pass the interim Order dated 8th April, 2022. In the event the Order of the learned Tribunal is interfered with at this stage, the prejudice already caused to the private respondent/applicant stands to be aggravated.

It is further submitted that the APWD has also filed a Misc.Application before the learned Tribunal praying for identical reliefs. Learned Counsel for the private respondent

relies upon the judicial authority reported in AIR 1990 SC 1308 to argue that such delay warrants that the Disciplinary Proceeding be set aside.

Having heard the parties and considering the materials placed, this Court finds that the private respondent/applicant before the learned Tribunal has participated in the Disciplinary Proceeding and is scheduled to retire on 30th November, 2022. This Court also finds that the substratum of the Disciplinary Proceeding is the maintenance of the employer-employee relationship subject to the pending judicial review.

This Court is accordingly of the view that while it will be open to the learned Tribunal to consider all issues agitated before it on merits in respect of which this Court restrains itself from offering any opinion at this stage, the balance of convenience lies in permitting the Disciplinary Authority/APWD to pass the final Order, but not to give effect to the same without leave of the learned Tribunal. It is accordingly so ordered.

In view of the order passed above, needless to add that the learned Tribunal shall be entitled to consider all issues on their own merits and the interim Order dated 8th April, 2022 stands accordingly modified.

Needless to further add that the learned Tribunal will decide the Original Application expeditiously, subject to its convenience.

In view of the Order passed above, no further purpose shall be served in keeping this petition, i.e. WPCT/23/2022, pending.

WPCT/23/2022 stands accordingly disposed of.

In view of the discussion above, there is no requirement of inviting affidavits. All allegations to the contrary are deemed to be denied and disputed. All parties to act in terms of a copy of the order downloaded from the official website of this Court. Urgent Xerox certified copy of this order be supplied to the Learned Counsel appearing for the respective parties upon compliance of usual formalities.

( Rabindranath Samanta, J. ) ( Subrata Talukdar, J. )