ORDER
Paritosh Kumar Mukherjee, J.
1. The writ petitioner, Sri Ashoke Kumar Majumdar was a Sub-staff in the United Bank of India, Head Office, Govt. Transaction Department
2. In tile instant writ petition, the petitioner has challenged an order of termination of service dated June 9, 1983 issued by the Chief Officer, Personnel Department, United Bank of India, whereupon by invoking paragraph 522(1) of the Sastry Award, the petitioner’s service has been terminated with immediate effect, with three months pay and allowances, a copy of which has been annexed as Annexure “B” to the writ petition.
3. Mr. Phalguni Sarkar, learned Advocate, with his leader Mr. Ashoke De, learned Advocate, appearing on behalf of the writ petitioner, has formulated the following points for consideration by this Court.
4. Firstly, it is submitted that no formal “charge-sheet” having been issued in respect of the alleged absence from the duty, the respondents-Bank authorities are not entitled to inflict the punishment of termination of service in respect of the petitioner, as it has been done admittedly in the facts of the present case.
5. Secondly, it is contended that by the expression “minor misconduct”, in Clause 19(7), the absence without leave or overstaying sanctioned leave, without sufficient grounds having been accepted, no major punishment of termination of service could be inflicted in respect of the petitioner.
5a. Thirdly, it is contended that by serving a show cause notice, which is not a formal charge-sheet, the respondent Bank authorities, are not entitled to inflict the punishment of termination of service by invoking paragraph 522(1) of the Sastry Award, which has been held by a series of judgments of the Supreme Court.
6. Mr.Sen, learned Advocate, appearing on behalf of the Bank authorities, opposes the prayer made in the writ petition.
7. Firstly, he has submitted that the writ petition having been moved in the year 1990, the order of termination dated June 9, 1983 suffers from inordinate delay and this Court should dismiss the writ petition on that ground only.
8. Secondly, he has submitted that the petitioner has other remedy by way of raising the Industrial Dispute under the Industrial Disputes Act 1947.
9. Mr. Sen, learned Advocate, has submitted in the next place that by invoking paragraph 522(1) of the Sastry Award, the respondent-Bank authorities, are entitled to terminate the service of the writ petitioner without serving formal “charge-sheet” and without holding enquiry into the said charge.
10. In the aforesaid circumstances, it has become necessary for this Court to scrutinise the rival submissions of the respective parties for arrival at a decision in the present case.
11. In the series of the decisions of the Supreme Court starting from (West Bengal State Electricity Board and Ors. v. Desh Bandhu Ghosh and Ors.) 1985-I-LLJ-373 arising out of our judgment in the case of Gour Chanara Sarkar and Ors. v. State Electricity Board and Ors., reported in 89 CWN 474, the Supreme Court had deprecated the termination of service, by invoking Clause 34 of the West Bengal State Electricity Board Employees Service Regulations.
12. This Court had also occasion to deliver a judgment dated August 28, 1985 in C.R. No. 3424 (W) of 1981 Sumit Bose v. Union of India (unreported) wherein this Court had set aside the order of termination of service, by invoking Clause 2 of the letter of appointment. In the facts of the case, the order of termination was passed by way of punishment.
13. It may be mentioned here that a Letters Patent Appeal having been preferred being P.M. A.T. No. 3412 of 1982, the Division Bench consisting of G.N. Ray, J (as His Lordship then was) sitting with Pabitra Kumar Banerjee, J, by the judgment dated August 3, 1990 had occasion to set aside my judgment solely on the plea that the respondent authority not being authority coming under Article 12 of the Constitution of India, and as such, it is not proper on the part of the learned single Judge, to allow the writ petition.
14. Thereafter, an appeal was preferred before the Hon’ble Supreme Court, the Bench of the Supreme Court presided over by R.N. Misra, C.J. and other two learned Judges had set aside the judgment of our Division Bench holding inter alia that it was not proper for the Division Bench to allow the appellant to argue the point, which had not been argued before the learned single Judge and accordingly the special leave was allowed and their Lordships directed that the Company should pay a sum of Rs.3 lakhs to the petitioner, by way of compensation and the appeal was allowed.
15. In the facts of the present case, as there was no charge-sheet, the respondent-Bank authorities, in my view, is not entitled to inflict major punishment of termination of service by invoking paragraph 522 (1) of the “Sastry Award”, as it has been done in the facts of the present case.
16. Further, this Court is of the view that the leave having been sanctioned by the respondent Bank authorities there was no material to proceed further with the show cause notice dated March 3, 1982 for taking disciplinary action against the writ petitioner, in respect of the “unauthorised absence for several days”, during he months from January and February 1982, particulars of which are given hereinbelow:
“January 1982
1, 6, 7, 14, 16, 20, 25, 27, 28, 29.
February 1982:
1, 2, 8, 9, 10, 13, 15, 16, 17.”
On the basis of the aforesaid legal position, this Court is inclined to follow the unreported judgment delivered by this Court in the case of Sumit Bose v. Union of India and Ors, (supra)
17. This Court is of the view that since the writ petition had already been admitted by Shyamal Kumar Sen, J. by order dated September 5, 1990, the delay is not fatal for the writ petitioner, as the respondent authorities had acted without jurisdiction, in the matter of termination of service of the writ petitioner.
18. In view of the decision in the case of Hirday Narain v. I.T.O. Bareilly , wherein Supreme Court held that learned trial Judge at the time of final hearing of the writ petition is not entitled to dismiss the writ petition solely on the ground that the petitioner had alternative remedy or there is any delay in moving the writ petition. This Court is also inclined to follow the view expressed by the Supreme Court in the case of Jai Shankar v. State of Rajasthan, reported in 1966-II-LLJ-140 wherein the Supreme Court held, as follows: (p. 143):
“A discharge from service of an incumbent by way of punishment amounts to removal from service and the constitutional protection of Article 311 cannot be taken away from him by contending that under the Service Regulations the incumbent himself gives up the employment and all that the Government does is not to allow the person to be reinstated. It is true that there is no compulsion on the part of the Government to retain a person in service if he is unfit and deserves dismissal or removal and one circumstance deserving removal may be overstaying one’s leave. But a person is entitled to continue in service if he wants until his service is terminated in accordance with law.”
In the result, the impugned order of termination of service dated June 9, 1983 is liable to be set aside and is quashed, accordingly.
19. The writ petitioner is entitled to reinstatement in the service, as the wrongful order
of termination is set aside. .
20. Let a Writ in the nature of Mandamus do issue commanding the respondents and each one of them not to give effect or further effect to the impugned order of termination dated June 9, 1983 which is Annexure “B” to the writ petition.
The petitioner will be paid all back wages, as the leave is sanctioned and in accordance with the relevant rules.
21. The respondents, Bank authorities, are directed to allow the petitioner to join in the service forthwith in the Head Office of the United Bank of India.
22. The prayer for stay of the operation of this judgment made by Mr. Udayan Sen, learned Advocate, for the respondents, Bank authorities, is considered and refused.
23. In the result, the writ petition is allowed, as above.
There will be no order as to costs.
Let a plain copy of the operative portion of this judgment counter-signed by the Assistant Registrar (Court) be given to the learned Advocate for the petitioner upon undertaking to apply for and obtain the certified copy of this judgment.