- (1.) THE petitioner in this case has prayed for, inter alia, a writ of Mandamus, directing the respondents to cancel, rescind and/or with draw the order of dismissal dated 24th june 1980 passed by Superintending Engineer, Calcutta Central Electric Circle under the GPWO. The said order of dismissal was passed in view of the order of conviction and sentence against the petitioner passed by the learned 4th Additional special Judge, Calcutta in the criminal case, started against the petitioner on charges under Section 5 (1) (c) read with section 5 (2) of the Prevention of Corruption Act and Sections 409 and 477a of the indian Penal Code. Against the said order of conviction and sentence, the petitioner preferred an appeal, being criminal appeal rro. 90 of 1979, which was admitted on (6 3. 1979 and ultimately allowed by the criminal Division Bench of the Court by its judgment dated 5th March,. 1984. While allowing the said appeal, their Lordships, either considering a concession, made on behalf of the State, to the effect that none of the defence exhibits had been considered or referred to in the judgment of the learned trial judge, stated, inter alia, "in the circumstances we find it difficult to resist the prayer for retrial after due consideration of the defence case in the light of the defence exhibits adduced at the trial. We have already indicated that the learned Judge, in this case, appears to have proceeded on the footing as if the appellant had admitted his guilt and that was possibly the reason why he appears not to have discussed even the prosecution case with such details as was required in a case like this, not to speak of the defence at all. Such being the position we find no other alternative but to send the case back for retrial to the court below. The appeal is therefore, all lowed. The order of conviction and sentence is set aside. The case be sent back to the court below for retrial. "after the said order of remand, the petitioner made a representation on 11th June, 1934 to the respondents demanding justice by withdrawal of the order of dismissal dated 24th June, 1980 and for payment of at! arrears which were receivable by him prior to 24th June, 1980. That as no step had been taken by the respondents in compliance with the said representation of the petitioner, which was in the form of demand for justice, the present writ application has been moved after serving notice on the respondents.
(2.) IT is pertinent to note at this stage that the Respondents passed ah ex parte order of dismissal on 30. 4. 1979 which was withdrawn on 2. 11. 1979 and on 9. 10. 1980, the petitioner was directed to make representation against the proposed penalty of removal from service. As the first ex parte order of dismissal had already been challenged by the petitioner in CR No. 5572 (W) 1979 and as the said proceeding had been pending, the petitioner expressed his inability to make the representation, asked for, and chose to pray for keeping the said memorandum, issued by the respondents, in abeyance till disposal of the writ proceeding as also the criminal appeal ). The petitioner also reserved his right to make necessary representation in the matter, if occasion there for arose in future The respondents, however, without waiting arty further, appear to have passed the impugned order of dismissal ).
(3.) MR. B. K. Ghose appearing for the petitioner, has contended that as the order of dismissal was passed only on the ground of conviction of the petitioner in the criminal case and since the order of conviction has been set aside the respondents are duty bound to consider the representation of the petitioner and to recall or rescind the order of dismissal as also to pay the petitioner a) the arrears dues, in support of his contention Mr. Ghose has retted upon Rule 19 of the Central Civil Services classification con trot and Appeal) Rules as also copy of the office Memorandum issued by the Government of India, Ministry of Home Affairs dated 7th March, 1964. Mr. Ghose has contended that, at least, the respondents cannot disown their liability to consider the petitioner's representation in accords dance with law and cannot sit over the same.;