Calcutta High Court
Bivas Modak vs The State Of West Bengal on 5 July, 2019
Equivalent citations: AIRONLINE 2019 CAL 933
Author: Amrita Sinha
Bench: Amrita Sinha
WP 541 of 2018
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
BIVAS MODAK
Versus
THE STATE OF WEST BENGAL
BEFORE:
The Hon'ble JUSTICE AMRITA SINHA
Date : 5th July, 2019.
Appearance:
Mr. Debdutta Basu, Adv.
Mr. Souvik Sen, Adv.
...for the petitioner.
Mr. N. Bhattacharya, Adv.
Ms. D. Chattaraj, Adv.
...for the respondent.
The Court : The issue that is to be decided in the instant writ petition is whether an employee of the Calcutta Tramways Company (1978) Limited (Company) be terminated from service without given him an opportunity of hearing and without initiating any disciplinary proceeding against him.
The petitioner was engaged as a driver of the Company. An Agreement was signed by and between the petitioner and the Company 2 on 31st July, 2010 for a specified period and the same was subsequently extended from time to time.
A show cause notice was issued against the petitioner by the Chief Operating Manager of the Company on 28th July, 2014 on the ground of dishonesty, aggressive behaviour with the passenger and for suppression of documentary evidence by snatching the tickets from the passengers. The petitioner was given seven days' time to reply to the said show cause. The petitioner submitted his reply on 9th August, 2014.
A second show cause notice was issued against the petitioner on 18th August, 2014 whereby he was informed that his reply was not satisfactory and another chance is being provided to him to explain as to why his Contract Agreement would not be terminated for violation of paragraph 9 of the Agreement.
The petitioner vide his letter dated 21st August, 2014 submitted his reply to the show cause.
By an order dated 20th November, 2014 the Chief Operating Manager of the Company terminated the contract of the petitioner with effect from 1st December, 2014. The same is impugned in the instant writ petition.
The petitioner thereafter made a representation on 22nd December, 2014 and a further representation on 11th September, 2017. As the respondent Authorities did not take any steps to consider the representation of the petitioner he approached this 3 Hon'ble Court by filing a writ petition being WP No. 1 of 2018 which was considered and disposed of by this Court by an order dated 6th February, 2018 directing the Managing Director of the Company to consider and dispose of the representation made by the petitioner in accordance with the Rules within a stipulated time period after giving the petitioner an opportunity of being heard in accordance with the Rules.
In compliance of the order passed by the Hon'ble Court the Managing Director of the Company by an order dated 19th April, 2018 rejected the prayer of the petitioner for reinstatement.
The primary contention of the petitioner is that the petitioner being an employee of the Company is guided by the Amended Standing Orders of the Company. He submits that there has been gross violation of the principle of natural justice as his service has been terminated without giving opportunity to him to defend himself. No disciplinary proceeding whatsoever was initiated against him.
The petitioner relies upon an order given by the General Manager of the Company on 23rd May, 2001 whereby the General Manager intimated all the heads of the Department of the office of the Company that discharge of an employee from service is considered to be capital punishment in the eye of law and, therefore, the authority issuing "discharge order" is expected to be extremely cautious as well as judicious. It is advisable that 4 prior to passing an order of discharge the delinquent employee be afforded an opportunity of being heard.
The General Manager by another order dated 30th August, 2003 indicated that in view of the order passed by the Hon'ble Supreme Court in the matter of Scooter India, no employee, be he a permanent employee, temporary or casual or in daily wages can be discharged from the Company's service without giving him an opportunity of hearing irrespective of the Company's own Rules. The Hon'ble High Court has also passed order in the matter of Calcutta Tramways Company (1978) Limited and Ors. vs. Pachulal Mathor and Ors. wherein the Hon'ble Court observed that no employee can be discharged without given him an opportunity of hearing.
The petitioner relies upon several charge sheets, which have been annexed with his affidavit in reply to show that disciplinary proceeding was indeed initiated against contractual drivers and they have been given benefit of the Amended Standing Orders of the Company. The petitioner alleges discrimination.
The petitioner relies upon an unreported judgment dated 19th May, 2003 passed in WP No. 5376(w) of 2003 Sushil Chandra Das vs. State of West Bengal and others. In the said case the petitioner was appointed as a casual bus driver and he had been working continuously. Challenging the order of discharge that was passed against him, he filed the said writ petition. The Court held that 5 without giving an opportunity of hearing the respondent could not discharge the petitioner even from casual service. The impugned order of discharge was set aside and the respondents were directed to reinstate the petitioner in his previous post of casual driver.
The petitioner further relies upon a judgment dated 28th November, 2006 passed in WP No. 5184 (W) of 2006 in the matter of Tushar Kanti Mondal vs. State of West Bengal and Others. It was a case of a bus conductor wherein punishment was imposed upon him. The Court held that the order of punishment inflicted upon the employee by following the procedure which has not been prescribed in the certified Standing Orders of the Company must be struck down as being an act which is totally beyond the prescribed Rules and Regulations.
The petitioner prays for setting aside of his order of termination.
The learned Advocate appearing on behalf of the respondent submits that two opportunities were given to the petitioner to defend himself. He has replied admitting his guilt and prayed for forgiveness. Had he not been guilty he would not have apologized.
It has been submitted that the petitioner was a contractual employee and he is not guided by the Amended Standing Orders. The petitioner will be guided only in accordance with the Agreement which was entered into by and between the parties at the time he 6 joined service. The terms of termination has been set out in the said Agreement.
After hearing submissions made on behalf of both the parties it appears that the Company has adopted themselves the standing orders which covers all the employees engaged in the various departments of the Company regardless of the fact whether they are permanent, probationary, temporary or apprentice.
On a perusal of the model form of agreement entered into between the Company and the employee it appears that an incumbent so engaged on contract basis may be terminated at any point of time during the period as validated by giving one month's notice in writing or depositing one month's remuneration. The Company also reserved the right to terminate the service of the contractual employee at any point of time during the validity of the contract without assigning any reason by giving one month's notice in writing or by giving one month's remuneration.
The clause relating to discipline in the model from of agreement mentions that any kind of misconduct, misdemeanour/ minor or major on the part of an employee engaged on contract will invite disciplinary action. The definition of offence misdemenours /misconduct on the part of the employee was the same as defined in the Amended Standing Orders of the Company. The disciplinary case was to be disposed of by the Company's Officers in the prevailing "Disciplinary Forum" of the Traffic Department of the Company. The 7 head of the Department of the Company under whose disposal the services of "Contractual Appointees" will be placed, or any other officer subordinate to him and presiding over the Disciplinary Forum shall be competent to award punishment to this category of employees.
The Amended Standing Orders of the Company mentions that the Company and the employees engaged in its various departments were subject to the Standing Orders regulating the conditions of service in accordance with the provisions of the Industrial Employment Standing Orders Act, 1946.
According to the Amended Standing Orders 'employee' means all persons employed by the Company in its various departments. Employee may be permanent, probationary, temporary or apprentice. A temporary employee is one who is engaged for any type of work, which is of a temporary character.
In the instant case, the petitioner was serving the Company from 2010 onwards. The incident took place in 2014. The service of the petitioner though contractual, but continued for a considerable period of time. Without given him an opportunity to defend himself the Company ought not to terminate him from service. The Company is bound by their own Standing Orders. Merely giving an opportunity to submit reply to the show cause is not enough to meet the principle of natural justice. A disciplinary proceeding in terms with the Amended Standing Orders of the 8 Company is liable to be initiated and the petitioner be given an opportunity to cross examine the witness to rebut the allegations leveled against him.
This Court in the case of Pachulal Mathor (supra), Sushil Chandra Das (supra) and Tushar Kanti Mondal (supra) categorically held that the Company is bound to follow its own Standing Orders.
The Agreement cannot override the Amended Standing Orders. In case of conflict between the provision of the Amended Standing Orders and the Agreement it the provisions of the Amended Standing Orders which prevails and not the terms and conditions of the Agreement. The Agreement is always in aid and assistance of the Amended Standing Orders. It is an extension of the provisions as laid down in the Amended Standing Orders. It has to be in line and in conformity with the Amended Standing Orders. The idea is not to create a conflict between the two. They are complementary to each other. Any deviation from the above principle will lead to sheer anarchy and uncertainty in service jurisprudence.
In view of the above, the impugned orders dated 20th November, 2014 and 19th April, 2018 are accordingly set aside. The Company will be at liberty to take appropriate steps against the petitioner strictly in accordance with the Amended Standing Orders of the Company.
WP 541 of 2018 is allowed.
(AMRITA SINHA, J.) SK.
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