G.N. Ray, J.@mdashThis appeal is directed against Order, dated 9th of September, 1987 passed by the learned Trial Judge in disposing of C.O. No. 5237(W) of 1981. The writ petitioner is the appellant in the instant appeal and the aforesaid writ petition relating to C.O. No. 5237(W) of 1987 was dismissed by the learned Trial Judge. It appears that for the appointment of Sub-Assistant Engineers in the categories of Electrical and Mechanical under the Calcutta Metropolitan Water and Sanitation Authority (CMWSA), names from different Employment Exchanges were called for. It may be noted in this connection that under the existing policy of the Government the names are to be sponsored by the local Employment Exchanges for getting appointment under the State Government. It also appears from Annexure ''D'' to the affidavit-in-opposition filed by the respondents that so far as the Howrah Employment Exchange is concerned for Sub-Assistant Engineer in the category of Electrical and Mechanical under CMWSA four names were required to be sponsored in the general category and one name in the category of scheduled caste. It is alleged that four names against general category and one in the category of Scheduled Caste were included in a list prepared by the Employment Exchange for forwarding to the Calcutta Metropolitan Water & Sanitation Authority but the copy which was received by the said Authorities of C.M.W.S.A. from the Howrah Employment change contained six names - five in general category and one the category of scheduled caste and the name of the appellant Sri Partha Pratim Bandopadhyay appeared as one of the names such list.
2. On the basis of the said letter, interview had been held and Bandopadhyay was found suitable in such interview and was given appointment as a Sub-Assistant Engineer under Calcutta Metropolitan Water and Sanitation Authority. As it transpired that the certificates for educational qualification stood the name of Partha Pratim Banerjee but his name was mention as Partha Pratim Bandopadhyay in the list received by the Calcutta Metropolitan Water and Sanitation Authority, enquires were made at the Howrah Employment Exchange as to whether or not Partha Pratim Banerjee and Partha Pratim Bandopadhyay were the same person. On receipt of such letter, enquiries were made and the Employment Exchange Officer, Howrah informed authorities of Calcutta Metropolitan Water and Sanitation Authority that they had not sponsored five names in the general category and in the list finalised by them, the name of Partha Pratim Bondyopadhayay did not figure. On receipt of such information services of Partha Pratim Bondyopadhayay was terminated by Calcutta Metropolitan Water and Sanitation Authority. As service of Shri Bandopadhayay was terminated without giving any opportunity to him a writ petition was moved by Sri Bondyopadhayay and on such writ petition the aforesaid C.O. 5237(W) of 1987 arose.
3. The learned Trial Judge dismissed the writ petition and instant appeal has been preferred by Shri Bandopadhayay. If Calcutta Metropolitan Water & Sanitation Authority on getting information that the name or Shri Bandopadhayay was not sponsored had terminated the service of Shri Bandyopadhayay after giving Sri Bondyopadhayay an opportunity to explain the case of faked list containing his name, we do not think that any interference by the writ court was called for against such termination. It has been contended before us that no opportunity of showing cause was given to Shri Bandyopadhayay before termination of his service and the complaint that the list containing the name of Sri Bandyopadhayay was not genuine was accepted to be correct and the service of Sri Bandyopadhayay was terminated practically on the footing that it was improper on his part to procure appointment on the basis of a faked list. It has been. contended that in essence, such termination was on the score of reprehensible conduct of Sri Bandyoadhayay and by way of penalty. As such it offends Article 311 of the Constitution of India. There is some force in the said contention and it appears to us that before terminating the service of Shri Bandyopadhayay a reasonable opportunity should have been given to Sri Bandyopadhayay to refute the allegation that the list received by C.M.S.W.A. was faked and the name of Sri Bandyopadhayay was not included. It has been contended that Sri Bandyopadhayay''s name was included and he having been registered earlier in the Employment Exchange his name was to be included and any erroneous list even if was prepared was corrected by the Office of the Employment Exchange. It has been further contended that if Sri Bandyopadhayay was given a chance to meet the allegation he could establish to the satisfaction of C.M.S.W.A. that the allegation against him was not correct and he should have been sponsored and had in fact been sponsored by the Employment Exchange. In the aforesaid facts and circumstances we directed for production of records of the Employment Exchange because even if Sri Bandyopadhayay was not given any opportunity to refute the allegation, such lapse will not really matter if the case made by Sri Bandyopadhayay cannot be substantiated with reference to the records of the Employment Exchange. It transpires that even if only four names in the General Category for electrical and mechanical stream were to be sponsored by the Howrah Employment Exchange, appellant''s name must have been sponsored and the names of Sri Jyotirmoy Das and Sri Tushar Kanti Biswas could not have been sponsored superseding the claim of the appellant because he was registered in the required category prior to Sri Das and Sri Biswas. It appears that the appellant was registered in the year 1982 but the said two persons were registered in 1983. From the list annexed in the affidavit-in-opposition by the Employment Exchange Officer being Annexure ''A'' to the application for interim order in this appeal, it transpires that all the four candidates whose names were included in the list intended to be sent to C.M.S.W.A. had the diplomas of LME and barring the first two candidates, viz., Sri Asit Kumar Das and Sri Jatindra Nath Gope, appellant was registered prior to the other two candidates namely Sri Jyotirmoy Das and Sri Tushar Kanti Biswas and in the normal circumstances, the name of the appellant ought to have been sponsored by the Employment Exchange on the basis of the e of registration and also on the basis of qualification of the appellant.
4. The officer of D.E.B. Howrah caused an enquiry in the matter and has also given a report which has been annexed in the affidavit-in-opposition. In the said report no allegation has been made by the Officer of DEB, Howrah that the appellant was instrumental for sending the alleged faked list containing his name also appears to us that no case has been initiated by the police against the appellant on the score of resorting to forgery and or malpractice in the matter of sending the list of eligible candidates from the Employment Exchange, Howrah to C.M.S. W.A. In the aforesaid facts, the case sought to be made out by the appellant it the list excluding his name was found to be erroneous and on scrutiny of the records of the Employment Exchange, the office detected that the appellant''s name could not be excluded and accordingly modified the list by inserting his name over his juniors and such revised list was sent and there was no foul play the matter, appears to be prima facie acceptable. It also appears us that still there is a vacancy for the post of Assistant Engineer in the Electrical and Mechanical Division under the Calcutta Metropolitan Water and Sanitation Authority and in any event the appellant would have obtained the appointment if the Employment Exchange-had sent the names according to the date of Registration because in that event, the name of the appellant should have been sent. In that view of the matter, we feel that if an opportunity to show cause would have been given to the appellant, the appellant could have been able to convince both the Employment Exchange and also C.M.S.W.A. that his name was to be sponsored by the Employment Exchange and by that process he would have got the employment in the normal course. We, therefore, dispose of this appeal by directing that the appellant be taken back in the service under the Calcutta Metropolitan Water and Sanitation Authority. In the facts of the case the appellant will let his salary only from the date of his re-joining but his seniority would be maintained from the date of his initial appointment. This order is made on the footing that the appellant is not guilty of ending any erroneous list to the Calcutta Metropolitan Water and Sanitation Authority. If, in future, any criminal case is started against him and it is established that he was instrumental in sending the faked list, the Calcutta Metropolitan Water and Sanitation Authority will be free to take appropriate action against him including dismissal from service on the basis of adjudication to be made in such criminal proceeding.
5. The appeal is accordingly disposed of treating the same as on day''s list. In view of the disposal of the appeal, no further order need be passed on the application for interim order which is also disposed of accordingly.
K.M. Yusuf, J.
6. I agree.
