- (1.) This Rule was issued calling upon the opposite party to show cause why he should not be dealt with for contempt of Court. The facts leading to the initiation of this proceeding are briefly as follows: The petitioner, Dr. Haripada Poddar, is employed in the West Bengal Health Service and at the relevant time he held the post of lecturer, Department of Surgery, R. G. Kar Medical College, Calcutta. By an order dated September 27, 1968 which was communicated to the petitioner on October 9, 1968, the petitioner was appointed "to act until further orders as lecturer, Department of Surgery, Bankura Sammilani Medical College, Bankura, with effect from the date on which he joined the post. According to the petitioner this order though purported to be one of transfer was really an order of demotion and was illegal, arbitrary and mala fide. On the very day the order was communicated to him, the petitioner had a letter addressed by a learned Advocate on his behalf to the opposite party who is the Secretary, Department of Health, Government of West Bengal, demanding justice and asking him to recall or rescind the order. This was the usual notice preceding an application for a writ in the nature of mandamus and it is not disputed that the opposite party received the notice also on October 9, 1968. The portion of the letter addressed by the petitioner's learned Advocate which is relevant for the present purpose is as follows : "In the circumstances I have instructions to give you notice, which I hereby do for justice calling upon you to recall/rescind the said order of transfer dated 27th September, 1968 within 24 hours of the receipt of the notice and inform me or my client of your action in that regard failing which I have further instructions to move the Hon'ble High Court for redress and relief and you will be liable for costs incidental thereto." The requisition made in the said notice not having been complied with, on October 11, 1968 the petitioner moved an application under Article 226 of the Constitution for a writ in the nature of Mandamus directing, among others, the Government of West Bengal through the Secretary, Department of Health, not to give effect to the said order of transfer. On the application that was moved before the Vacation Bench during the Durga Puja holidays, A. C. Sen, J. issued a Rule calling upon the opposite party to show cause why a writ as prayed for should not issue. The rule numbered Civil Rule 7126 (w) of 1968, was made returnable two weeks after the holidays. His Lordship, however, did not pass any interim order to restrain the opposite party from giving effect to the impugned order of transfer but gave the petitioner liberty to renew his prayer for an interim order in the presence of the respondents on the returnable date. After the rule was issued on October 11, 1968, the learned Advocate appearing for the petitioner wrote to the Secretary, Department of Health, Government of West Bengal, on the same day informing him of the terms of the rule. According to the petitioner, he also personally informed the Secretary on the telephone that a rule had been issued.
(2.) It appears that on October 11, 1968, while this Court issued the rule under Article 226 of the Constitution at the instance of the petitioner, the Government of West Bengal, Department of Health, also issued an order over the signature of the opposite party placing the petitioner under suspension with immediate effect because he had served on the opposite party the notice dated October 9, 1968, asking the Government to rescind the order of transfer. The material part of this order is as follows: "Whereas it has been made to appear to the Governor that Dr. Haripada Poddar of the West Bengal Health Service, . . . has attempted to disobey Government Order . . . .elated 27-9-68 transferring him from the R.G. Kar Medical College, Calcutta, to the Bankura Sammilani Medical College, Bankura, as a Lecturer. Department of Surgery and whereas the said public servant has served a pleader's notice calling upon Government to rescind the aforesaid order of his transfer within 24 hours of the receipt of the said notice, failing which his pleader has threatened Government to move the Hon'ble High Court for redress and relief. And whereas a disciplinary proceeding in the aforesaid circumstances is contemplated against the said public servant; Now, therefore, the Governor is pleased to place the said public servant Dr. Haripada Poddar under suspension with immediate effect until further orders pending drawing up of formal proceeding against him. . . ." A copy of this order of suspension was served on the petitioner by special messenger on October 13, 1968. In the meantime, the petitioner had applied for leave for two months from October 12, 1968, on the ground of his wife's illness. The original order of suspension was sent to the petitioner by registered post and he received it on October 15, 1968, while he was on leave. Thereafter on November 20, 1968, the petitioner made an application in the said Civil Rule No. 7126 (w) of 1968 praying for interim stay of the order of transfer dated September 27, 1988 and served copies of this application on all the respondents including the present opposite party. This application has not yet been disposed of.
(3.) On November 23, 1968, the petitioner received a registered cover containing an order dated November 16, 1968, signed by the opposite party and stating that the petitioner had been found prima facie guilty of twofold charge set out in the order and directing him to appear before the enquiring officer who had been appointed to inquire into the charges against him. The first of the two charges against the petitioner states that he had "contravened R. 21 of the West Bengal Government Servants' Conduct Rules, 1959, read with the Note thereunder", by serving a notice through his Advocate on the Secretary, Department of Health, to rescind the order of transfer within 24 hours of receipt of the notice and threatening to move the High Court for redress and relief if this was not done. The second charge states that "by holding out a threat" to the Secretary, Health Department, as stated above, the petitioner had "behaved in a manner which was improper and unbecoming of a public servant and derogatory to the prestige of Government" contravening Rule 4 of the said Conduct Rules. A statement of allegations forming the basis of the charges which accompanied the order makes it further clear that the petitioner's alleged act of disobedience to the order of transfer was in sending the lawyer's notice containing threat of legal action against the Government instead of submitting a representation to the Government regarding his grievances as required by the said Rule 21, and that the improper and unbecoming behaviour alleged against the petitioner which is forbidden by Rule 4 also lay in the threat of legal action conveyed on his behalf by his learned Advocate to the opposite party.;