Calcutta High Court (Appellete Side)
345/2011 on 17 January, 2012
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
17.1.2012. F.M.A. No. 345 of 2011
Mr. Himadri Barua
Mr. Biswajit Banerjee
......for the appellant.
Mr. Debabrata Saha Roy
Mr. Indrajit Mitra
.. for the State.
Pratap Kumar Ray, J.
Heard learned Advocates appearing for the parties. Assailing the order dated 3rd October, 2008 passed by District Panchayat & Rural Development Officer, South 24- Parganas, the writ application was moved. The order of said Officer dated 3rd October, 2008 reads such:-
"03.10.2008. - Perused these documents and found that
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He is working as casual Gram Panchayat Karmee at Namkhana Gram Panchayat from 24.09.1993. It is seen from an unauthorised copy of Order of Prodhan, Namkhana Gram Panchayat dated 15.09.1993 that he has been engaged as Casual G.P. Karmee vide G.P. Meeting No. 2/93-94 dated 05.09.1993. He has stated his date of birth as 01.04.1976, thereby it appears that he was engaged as Casual G.P. Karmee as a minor.
It is further seen from an unauthorised copy of Muster Roll that he has been paid @ Rs. 100/- per month from the period October '93 to December '94, January '95 to November '95, December '95 to March '96, April '96 to January '97 whereas the guiding order of P&RD Department, Govt. of West Bengal i.e. Memo No. 3598/PN dated 08.10.2003 wherein the guideline for regularization of casual worker has been delineated has categorically mentioned that for regularization one has to 2 work for 240 days per calendar year for 3 consecutive year within last 5 years before 13.03.1996. In this case no document has been made available to show that he has worked on daily basis for 3 consecutive years for 240 days in each calendar year prior to 13.03.1996.
Moreover, he has been paid on monthly mode not on daily mode and no record is available to show that he has been paid from own fund of Gram Panchayat not from any schematic fund as have been mentioned in the said G.O. It is seen from the available documents that the conditions for regularization of casual worker are not fulfilling in this instant case. Therefore, it appears that his case can not be recommended for regularization. With the above observation, the order of he Hon'ble High Court in the instant case is complied with after due consideration.
The Petitioner and the Prodhan, Namkhana are informed accordingly......."
In the writ application, a positive pleading made in paragraph 23 against the finding of concerned Panchayat Officer that he did not work 240 days in each calendar year prior to 13th March, 1996. Paragraph 23 of writ application reads such:-
" 23. That in the said impugned order it has been evident that the respondent authority observed that no document has been made available to show that the petitioner has worked on daily basis for three consecutive years @ 240 days in each calendar year prior to 13.03.1996 although the petitioner has been appointed as a casual worker on 24.09.1993 and he had been working since then more than 240 days each 3 calendar year even prior to 13.03.1996 and thereafter and he had been paid his remuneration and/or honorarium month by month calculating daily basis. But in the instant case the respondent authority without verifying and/or considering the Audit Book, Muster Roll erroneously observed the same and accordingly the prayer of the petitioner is rejected."
Learned Trial Judge by order dated 10th November, 2010 dismissed the writ application holding, inter alia, that petitioner failed to satisfy the concerned authority that he worked for requisite 240 days per calendar year for three consecutive years for the purpose of regularisation of service on the basis of Government's circular letter. Assailing this order, the appeal has been filed. The impugned order under appeal reads such:-
"10.11.10. - By this writ petition, the petitioner seeks to cancel the order dated 3rd October, 2008. By the said order, the request of the petitioner to regularize his services as a Casual Worker has been rejected as the petitioner has not worked for the requisite 240 days per calendar year for 3(three) consecutive year. As the petitioner has not complied with the conditions necessary for regularization as set out in the Memo dated 8th October, 2003, no infirmity exists in the order passed and accordingly, no order is passed on this writ petition.
The judgement relied on by the petitioner, namely, (2009) 1, W.B.L.R. (Cal) 168 has no application to the facts of this case as in the said case, there had been compliance with the conditions as contained in the 4 Notification dated 8th October, 2003. This is not so in the instant case.
Accordingly, no order is passed on this writ petition and writ petition is dismissed.
As no affidavit-in-opposition has been filed, the allegation contained in the petition is not admitted." It is the clear case of writ petitioner that he was paid remuneration on daily basis from the Panchayat fund due to rendering of casual work and he completed more than 240 days in each calendar year for a period of more than three consecutive years to enjoy the benefit of regularisation of service in terms of Government's circular letters. Having regard to the categorical contention that from the audit report and Master Roll those facts would have been revealed about relating to working of petitioner in the manner aforesaid, we are of the view before dismissing the representation filed by writ petitioner seeking regularisation of service which was earlier directed in another writ application to be considered, the authority, namely, District Panchayat & Rural Development Officer, South 24- Parganas ought to have called for the audit book, Master Roll and resolution of Anchal Panchayat to identify the issue. Since that was not done, we are of the view that the officer concerned failed to perform his duty to adjudicate an issue by taking note of relevant factors.
In view of such, the order is not justified. The impugned order of 3rd October, 2008 passed by District Panchayat & Rural Development Officer, South 24-Parganas stands set aside 5 and quashed. The order impugned in this appeal stands set aside and quashed.
In view of our aforesaid findings, the District Panchayat & Rural Development Officer, South 24-Parganas is directed to consider the issue de novo and to pass a reasoned decision upon perusing the Master Roll, audit report and resolution of Anchal Panchayat and also by allowing writ petitioner/appellant to submit documents in his favour and an opportunity of hearing. The said officer is also directed to decide the issue within two months from the date of communication of this order and a reasoned decision to be communicated to writ petitioner/appellant.
With that finding and observation, the writ application is allowed. The appeal stands disposed of.
It is made clear that we have not gone into the merit of the case. The said officer is at liberty to decide the issue on taking note of particular notification prevailing at the material time when the cause of action of regularisation arose due to completion of 240 days working per year for a consecutive period of three years.
The appeal stands disposed of with the aforesaid findings.
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Let xerox certified copy of this order, if applied for, be given to learned Advocates appearing for the parties expeditiously.
(Pratap Kumar Ray, J.) I agree.
(Prasenjit Mandal, J.) sks.