ARABINDA GHOSH Vs. STATE OF WEST BENGAL
HIGH COURT OF CALCUTTA
STATE OF WEST BENGAL
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M.M. Dutt, J. -
(1.)The Petitioner Arabinda Ghosh, a planning assistant of the Siliguri Planning Organisation, has in this Rule challenged the order of termination of his service dated March 6, 1975, issued by the Director of the said Organisation.
(2.)On April 7, 1960, the Petitioner was appointed a planning assistant in the (sic) planning Organisation under the (sic) and Planning Department of the Government of West Bengal. He was declared quasi -permanent in the said post with effect from April 7, 1969. He fell ill and applied for leave with effect from July 9, 1971. He was granted leave salary up to September 25, 1971. Thereafter, he could not join his duties as he was arrested by the Police on July 15, 1972. He has been accused in a number of criminal cases and has been kept in detention as an under -trial prisoner in the Presidency Jail, Alipore. He is still under detention, but he has not yet been convicted in any criminal case.
(3.)It is contended on behalf of the Petitioner that the order of termination has been made in violation of the provisions of the service rules. As the Petitioners service was made quasi -permanent, his service was not liable to termination except in the same circumstances and in the same manner in which the service of a Government servant confirmed in a permanent post or in a permanent cadre was liable to be terminated as provided in Rule 6(1)(a) of the West Bengal Services (Temporary and Quasi -Permanent Service and Service with Permanent Status) Rules, 1967. The service of a Government servant confirmed in a permanent post or in a permanent cadre can be terminated on his attaining the age of superannuation or by compulsory retirement or by way of punishment as a result of any disciplinary proceeding brought against him. The Petitioner has not yet reached the age of superannuation and no disciplinary proceeding was brought against him. Rule 7(1)(c) of the West Bengal Services (Classification, Control and Appeal) Rules, 1971, provides that the appointing authority or any authority to which it is subordinate or any authority empowered by the Governor in that behalf, may place a Government servant under suspension where a case against him in respect of any criminal offence is under investigation or trial. Further, Sub -rule (3) of Rule 7 provides as follows:
(3) A Government servant who is detained in custody for a period exceeding 48 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. A Government servant 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.
It is contended on behalf of the Petitioner that there is no provision under any of the Rules framed by the Government that because of the detention of the Petitioner or for his absence for a long time his service can be terminated on the other hand, in view of Sub -rule (3) of Rule 7 he 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. None has appeared before me on behalf of the Respondents and no affidavit has also been filed on their behalf. In these circumstances, the allegations made by the Petitioner remain uncontroverted. In the absence of any specific provision, I am of the view that the service of the Petitioner could not be terminated simply by the service of a notice for three months. The Petitioner cannot also be treated as a temporary Government servant after his status was declared as a quasi -permanent status. Rule 5 of the West Bengal Services (Temporary and Quasi -Permanent Service and Service with Permanent Status) Rules, 1967, provides that the service of a temporary Government servant who is not in quasi -permanent service or in service with permanent status shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant. This Rule is not applicable to a quasi -permanent Government servant which is clearly indicated in the Rule itself. To terminate the service of a quasi -permanent Government servant in the manner by which the service of the Petitioner has been terminated, is to treat the Government servant concerned as in temporary service which is not permissible.
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