Calcutta High Court (Appellete Side)
The Kolkata Municipal Corporation & Ors vs Pabitra Kumar Mandal & Anr on 9 August, 2017
Author: Biswanath Somadder
Bench: Sankar Acharyya, Biswanath Somadder
IN THE HIGH COURT AT CALCUTTA
CIVIL APP ELLATE JURISDICTI ON
APP ELLATE SIDE
Present :
THE HONB'LE MR. JUSTICE BISWANATH SOMADDER
&
THE HON'BLE MR. JUSTICE SANKAR ACHARYYA
FMA 16 of 2017
(MAT 1522 of 2016)
THE KOLKATA MUNICIPAL CORPORATION & ORS.
vs.
PABITRA KUMAR MANDAL & ANR.
For the appellants / applicants : Mr. Alok Ghosh, Advocate
Mr. Arijit Dey, Advocate
For the respondent no.1 / writ : Mr. Surajit Samanta, Advocate
petitioner Mr. Biswajit Samanta, Advocate Heard on : 29.03.2017, 12.04.2017, 19.04.2017, 10.07.2017 Judgement on : 09.08.2017. BISWANATH SOMADDER, J. : This appeal arises out of a judgement and
order rendered by a learned Single Judge on 11th July, 2016 in W.P. No.5735(W) of 2013 (Pabitra Kumar Mandal Vs. The State of West Bengal & Ors.). By the said judgement and order Pabitra Kumar Mandal's writ petition was disposed of with a direction upon the Kolkata Municipal Corporation (hereinafter referred to as "KMC") to make payment of the entire salary and allowances that the writ petitioner would have earned from the date of his discharge till the date of his retirement on the last day of the month of his attaining 65 years of age, within 3(three) months from date of the judgement and order.
The appellants before us are the KMC, its Municipal Commissioner and the Deputy Municipal Commissioner (Personnel).
Briefly stated the relevant facts of the case are as follows:-
The writ petitioner, Pabitra Kumar Mandal, was appointed as a Hearing Officer of the KMC under section 187 of the Kolkata Municipal Corporation Act, 1980 in terms of an appointment letter dated 31st October, 2011 along with some others. In his appointment letter it was stated, inter alia, that the tenure of his appointment would be till the last day of the month of his attaining 62 years of age.
On 16th December, 2011, while Pabitra Kumar Mandal was still working, the government, by notification, extended the permissible age of the Hearing Officers appointed under section 187 of the Kolkata Municipal Corporation Act, 1980 up to 65 years and further directed that such appointment at a time would be for a period of one year only, subject to renewal. Pabitra Kumar Mandal and others similarly situate and circumstanced, lodged applications before the appropriate authority of KMC seeking benefit of the notification dated 16th December, 2011. Non-consideration of their applications and moreover since they were likely to reach their respective superannuation ages very soon, prompted Pabitra Kumar Mandal and others to file a writ petition being W.P. No.770(W) of 2013 (Dines Kumar Mukhopadhyay & Ors.
Vs. State of West Bengal & Ors.). By a judgement and order dated 15th January, 2013 that writ petition was disposed of with a direction upon the KMC to give and serve decisions considering the writ petitioners' respective applications for benefit of the government order dated 16th December, 2011, immediately. By an order dated 22nd January, 2013, the Municipal Commissioner of KMC, being the appellant no. 2 herein, rejected Pabitra Kumar Mandal's representation citing a policy decision of the KMC that only applications of fresh candidates would be taken into consideration and as Pabitra Kumar Mandal was already serving, hence his candidature was not considered. This gave rise to a second writ petition, which was filed by Pabitra Kumar Mandal, being W.P. No.2475(W) of 2013 (Pabitra Kumar Mandal Vs. The State of West Bengal & Ors.). By a judgement and order dated 31st January, 2013, the learned Single Judge proceeded to dispose of that second writ petition upon setting aside the order of the Municipal Commissioner, KMC dated 22nd January, 2013 with a direction upon the Deputy Municipal Commissioner (Personnel) of the KMC (being the appellant no.3 herein) to decide afresh, the petitioner's request for yearly extension on the basis of the government order dated 16th December, 2011, giving him opportunity of presenting his case within 7(seven) days. Consequently, the Deputy Municipal Commissioner (Personnel) rendered his decision on 18th February, 2013, essentially reiterating the earlier decision rendered by the Municipal Commissioner on 22nd January, 2013 upon proceeding to reject Pabitra Kumar Mandal's prayer for renewal of his term as Hearing Officer based on the government order / notification dated 16th December, 2011. This decision of the Deputy Municipal Commissioner (Personnel) dated 18th February, 2013 gave rise to the third writ petition of Pabitra Kumar Mandal wherefrom the impugned judgement and order emanates.
It is noticed that during the pendency of the last writ petition, a connected application was filed by the writ petitioner, being CAN 11252 of 2014, wherein the following statements were made:-
"5. That after the filing of the writ petition on or about 25.02.2013 your petitioner is in receipt of replies to his RTI query dated 18.03.2013 with RTI appeal dated 19.04.2013 and RTI query dated 15.05.2013.
A Photostat copy of each of the said RTI query dated 18.03.2013 with RTI appeal dated 19.04.2013 and reply thereto dated 02.05.2013 and RTI query dated 15.05.2013 and reply thereto dated 28.05.2013 are annexed hereto as:
(i) The copies of the RTI query dated 18.03.2013 with RTI appeal dated 19.04.2013 and reply thereto dated
02.05.2013 collectively ... ... ... ... ... "A-2"
(ii) The copies of the RTI query dated 15.05.2013 and reply thereto dated 28.05.2013 collectively ... ... ...
... ... "A-3"
6. That a mere perusal of the RTI replies would go to show that:
(i) there were 32 incumbents holding the posts of Hearing Officers as on 28.02.2013 in the KMC and there were 3(three) vacancies in the posts of Hearing Officers as on 28.02.2013;
(ii) there was no policy decision by the State Government or the KMC that those Hearing Officers who were in service as on 16.12.2011 or thereafter in the KMC should not be considered for renewal for further period though they had not attained 65 years of age;
(iii) the validity of the panel of Hearing Officers selected on the basis of interview on 09.06.2012 has been prescribed as "till it is exhausted or till attainment of 65 years of age of the last candidate of the panel, whichever is earlier" ;
7. That your petitioner had to file 3 (three) writ petitions:
i. the first challenging the non-consideration of the case of the petitioner for extension of the permissible age of the Hearing Officer appointed under the provisions of section 187 of the Act of 1980 upto 65 years by and under Gazette Notification dated 19.12.2011 which was disposed of under order dated 15.01.2013 in WP No.770 (W) of 2013 by directing the CMC to consider and pass necessary orders by 22.01.2013;
ii. the second challenging the order of rejection dated 22.01.2013 passed by the Municipal Commissioner which was allowed under order dated 31.01.2013 in WP No.2475 (W) of 2013 setting aside the impugned decision by directing the CMC to decide afresh the case of the petitioner for yearly extension on the basis of the G.O. dated 16.12.2011 and pass necessary orders within seven days;
iii. the third, the instant writ petition, challenging the order of rejection dated 18.02.2013 passed by the Deputy Municipal Commissioner (Personnel);
8. That it would therefore be evident from the orders passed by the Hon'ble court on the said first two writ petitions, on the submissions made by the learned counsel on behalf of the respondent municipal authorities on instructions from the respondent municipal authorities, as also from the reasoned orders passed by the said respondent municipal authorities / materials on record, that the respondent municipal authorities have contested the writ petitions and / or passed reasoned orders by making statements untrue to records with an oblique motive view and purpose to somehow resist the prayers made.
9. That in view of what has been stated hereinbefore the respondent municipal authorities more particularly the then Municipal Commissioner, Calcutta Municipal Corporation, and the then Deputy Municipal Commissioner (Personnel), Calcutta Municipal Corporation, are liable to be prosecuted under the provisions of the Contempt of Courts Act, 1971/Section 195 read with Section 340 of the Code of Criminal Procedure.
Your applicant/petitioner states and submits that it would not be out of place to mention that it is now well settled by judgements of the Hon'ble Supreme Court of India, one being Chandra Shashi Vs. Anil Kumar Verma to which your applicant/petitioner craves leave to rely upon at the time of hearing, that contempt jurisdiction has been conferred on the superior courts not only to preserve the majesty of law by taking appropriate action against one howsoever high he may be, if he violates court's orders, but also to keep the stream of justice clear and pure so that the parties who approach the courts to receive justice do not have to wade through dirty and polluted waters before entering their temples. Your applicant/petitioner craves leave to make further submissions at the time of hearing of the instant application."
The main thrust of the appellants' submission during the hearing of the present appeal was that KMC was under no obligation to automatically extend the service period of the writ petitioner till he reached the age of 65 years. According to the appellants, the learned Single Judge did not take into consideration that the notification dated 16th December, 2011 could be extended only upon the employer's discretion. The pre-conditions of service of the writ petitioner was that his tenure of appointment would be till the last day of the month of attainment of 62 years of age inasmuch as the notification dated 16th December, 2011 did not make it a mandate upon the employer to extend the service of the Hearing Officers till the age of 65 years, automatically. The notification dated 16th December, 2011 conferred a discretion upon the KMC authorities to extend the period of service of the writ petitioner in the interest of the KMC and the writ petitioner could not force the KMC to extend his service beyond 62 years.
On the other hand, on behalf of the respondent / writ petitioner it was submitted that KMC has been changing its stand with regard to the writ petitioner ever since filing of the first writ petition, being W.P. 770 (W) of 2013. This would be evident from the fact that the Municipal Commissioner, while rejecting the petitioner's prayer on 22nd January, 2013, had observed that it was the policy decision of the KMC that only applications of fresh candidates would be taken into consideration. As Pabitra Kumar Mandal was already serving, hence his candidature was not considered. However, this stand of the Municipal Commissioner was in total contrast to the information obtained by Pabitra Kumar Mandal on the basis of application made under the Right to Information Act, reply whereof would clearly show that there was no policy decision by the State Government or the KMC that those Hearing Officers who were on service as on 16th December, 2011 or thereafter, should not be considered for renewal for a further period though they had not attained 65 years of age. In this context, learned advocate representing the respondent / writ petitioner has referred to the statements made in CAN 11252 of 2014, relevant portion whereof has been reproduced hereinbefore.
We notice that while rendering his decision, the learned Single Judge has taken note of all relevant facts and even distinguished the judgement of the Hon'ble Supreme Court rendered in the case of State Bank of Bikaner & Jaipur and others vs. Jag Mohan Lal reported in AIR 1989 SC 75, in the light of the facts of the present case. The learned Single Judge has taken pains to look at the appointment notification dated 31st May, 2011 which formed the basis of Pabitra Kumar Mandal's appointment as a Hearing Officer in terms of the appointment letter dated 31st October, 2011. The learned Single Judge also intensely scrutinised the notification dated 16th December, 2011 and proceeded to observe as follows:-
"The Deputy Municipal Commissioner states in his impugned decision dated 18th December, 2013 that whilst the petitioner was in employment an advertisement was published by the Corporation for taking new Hearing Officers. There is no illegality in taking new Hearing Officers. But this ought not to have been done at the expense of those who were working without blemish. No misdemeanour is even alleged against the petitioner. Hence, the Corporation could only fill up the existing vacancies and not discharge the existing Hearing Officers including the petitioner to create vacancies. It is here that the action of the Corporation has become arbitrary, unfair and most unreasonable.
In my opinion, the writ petitioner's service was wrongly terminated. He has now crossed 65 years of age. The writ petitioner is entitled to damages. I direct the Kolkata Municipal Corporation to make payment of the entire salary and allowances that the petitioner would have earned from the date of his discharge till the date of his retirement on the last day of the month of his attaining 65 years within three months from date. This writ application is allowed to the above extent."
In an Intra-Court Mandamus Appeal, no interference is usually warranted unless palpable infirmities or perversities are noticed. In the instant case, no such palpable infirmities or perversities are noticed on a plain reading of the impugned judgement and order, relevant portion whereof has been quoted hereinabove. That apart and in any event, it is palpably evident that the KMC has been shifting its stand ever since the first writ petition was filed. This is evident from the Municipal Commissioner's decision dated 22nd January, 2013, where the reason for rejection appears to be a policy decision of the KMC that only applications of fresh candidates would be taken into consideration and as Pabitra Kumar Mandal was already serving, hence his candidature was not considered. This stand of the Municipal Commissioner is in complete contrast to the reply provided to Pabitra Kumar Mandal on his application under the Right to Information Act, which has been clearly stated in paragraph 6 of the CAN 11252 of 2014, as reproduced hereinabove. The fact that there was no policy decision by the State Government or by the KMC that those Hearing Officers who were on service as on 16th December, 2011 or thereafter, should not be considered for renewal for further period though they had not attained 65 years of age, clearly vindicates the stand of the respondent / writ petitioner, as sought to be taken before the learned Single Judge.
We are constrained to observe that KMC has taken a very unfair and inconsistent stand while dealing with the case of Pabitra Kumar Mandal, which will be apparent from the discussion hereinbefore. The award of damages by the learned Single Judge was the least that the writ Court could do in the facts and circumstances of the instant case in order to undo the damages and alleviate the suffering of the respondent / writ petitioner.
For reasons stated above, the appeal is liable to be dismissed with costs assessed at 500 GMs, which shall be deposited within a fortnight from date with the State Legal Services Authority, West Bengal, for being kept earmarked for its utilization by the Mediation and Conciliation Committee of the High Court.
List this matter three weeks hence only for the purpose of ensuring compliance of the above direction for payment of costs.
Urgent photostat certified copy of this judgement and order, if applied for, be supplied to the parties on priority basis.
(BISWANATH SOMADDER, J.) I agree.
(SANKAR ACHARYYA, J.)