State of West Bengal vs Dr. Somnath Chatterjee

Satyabrata Sinha, J.—This application is directed against an. order dated December 10 1999, passed by the West Bengal State Administrative Tribunal in O.A. No. 10265 of 1999 whereby and whereunder an interim order of injunction was passed stating:

In view of the dissuasions made above, we hold that there is not only a prima facie case in favour of the prayer for an interim order of injunction but the balance of convenience and inconvenience is also in favour of granting the prayer for injunction. This does not mean that the Respondents cannot fill up the post of D.H.S. by a regularly selected candidate. But prayer for an interim order staying the operation of the impugned order, in the circumstances of the case, should be allowed.

Respondent No. 1 was holding the substantive post of Additional Director of Health Service and State Leprosy Officer under the State Government. On November 10, 1998, he was given additional charge on temporary basis to act as acting Director of Health Officer in the following term:

The Governor is pleased to hereby release Dr. Somnath Chatterjee, Additional D.H.S. (Adma) and State Leprosy Officer of the additional charges of acting D.H.S. with immediate effect;

This order is made in the interest of public service.

Allegedly for certain serious financial irregularities committed by him, he was charge-sheeted on December 19, 1997 whereafter again another charge-sheet was issued. One application was filed by him questioning the disciplinary proceeding which was disposed of. However, the Respondent No. 1 filed an application on February 11, 1999, before the Tribunal which was marked as O.A. No. 617 of 1999 and the same was disposed of with a direction upon the Respondent to wind up the disciplinary proceedings within a reasonable time or say 6 months from the day of passing of the order, in default whereof the proceeding shall stand quashed.

An application for recalling and/or review of the said order dated February 11, 1999, passed in O.A. No. 617 of 1999 was filed by the Respondent which was marked as R.N. No. 9 of 1999 which is still pending. On November 10, 1999, a notification was issued appointing the first Respondent as Acting Director of Health Service temporarily in addition to his own duties. However, the said order was modified by a notification dated November 15, 1999, in terms whereof he was directed to function as Acting D.H.S. until further order.

By an order dated November 30, 1999, the Government directed his release from the additional charges of Acting D.H.S. and by as order of the same day one Dr. Sujoy Kumar Das allegedly has assumed charge on December 1, 1999, and the instant application was filed by the first Respondent herein on December 7, 1999, wherein the impugned order dated December 10, 1999, has been passed.

Mr. Soumen Bose the learned Counsel appearing on behalf of the Petitioner, inter alia, submitted that during pendency of the recalling and/or review application being R.A. No. 9 of 1999 the interim order of injunction could not have been passed relying on of on the basis of the Tribunal''s earlier order dated February 11, 1999. It was next contended that in any event as Dr. Sujay Kumar Das has since taken over charge, in his absence the impugned order ought not to have been issued. Mr. Bose would urge that the Respondent No. 1 did not have any legal right to continue in the said post for indefinite period.

Mr. Bikash Ranjan Bhattacharjee, the learned Counsel, appearing on behalf of the Respondent No. 1, on the other hand, submitted that the Petitioner having been appointed as Additional Director till a Director is appointed, in view of the fact that the enquiry proceedings had not been completed within a period of six months in terms of the order dated February 11, 1999, the same would be deemed to have become honest and, thus, the order impugned in the application could not have been passed.

In view of the principles laid down by the Apex Court in Morgan Stanley Mutual Fund Vs. Kartick Das, , we are of the opinion that the impugned order ought not to have been passed. In the said decision the Apex Court held:

As a Principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the court in the grant of ex parte injunction are-

(a) whether irreparable or serious mischief will ensue to the Plaintiff:

(b) whether the refusal of ex parte injunction would involve greater in justice than the grant of it would involve;

(c) the court will also consider the time at which the Plaintiff first hand notice of the act complained so that the making of improper order against a party in his absence is prevented;

(d) the court will consider whether the Plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction

(e) the court would expect a party applying for ex parte injunction to show utmost good faith in making the application;

(f) even if granted, the ex parte injunction would be for a limited period of time ;

(g) General principle like prima facie case, balance of convenience and irreparable loss would also be considered by the court.

In the instant case the Petitioner did not acquire any legal right to continue in the said post. No. such principle can be deduced from the decision of the Apex Court in State of Haryana and others Vs. Piara Singh and others etc. etc., inasmuch as therein the Apex Court therein was considering the case of regularisation in employment and in that context it was observed that one set of ad hoc employee should not be replaced by another set of ad hoc employee. Herein the fact of the matter is different.

A charge sheet has been issued against the Respondent No. 1. The question as to whether the Petitioner herein would be entitled to enlargement of time and/or any other order is pending consideration before the Tribunal itself. In R.A. No. 9 of 1999, it is premature to proceed on the premise that the departmental proceedings as against the Respondent No. 1 has come to an end. In any event, we are of the opinion, that such an order could not have been passed in absence of the aforementioned Dr. Sujay Kumar Das, who shall be greatly prejudiced thereby.

For the reasons aforementioned, this writ application is allowed and the impugned order is set aside. We request the learned Tribunal to dispose of the said R.A. No. 9 of 1999 as expeditiously as possible and thereafter consider the matter afresh in accordance with law. However, in the facts and circumstances of this case there will be on order as to costs.

M.H.S. Ansari, J.

I agree.