Calcutta High Court (Appellete Side)
An Application Under Articles 226/227 ... vs Sandip Dasgupta on 15 May, 2014
Author: Nishita Mhatre
Bench: Nishita Mhatre
1
15.05.14
Item No.03
Court No.17
sK.Mitra
W.P.S.T. No. 111 of 2014
In the matter of: An application under Articles 226/227 of the
Constitution of India filed on 08.04.2014;
And
In the matter of: Sandip Dasgupta
Petitioner
- Versus -
H.K.Dwivedi & Ors.
Respondents
Mr. Anindya Lahiri Mr. Pushpal Chakraborty For the Petitioner Mr. Joytosh Majumder Mr. Abhratosh Majumder Mr. Sanjib Das For the State The petition has been filed against the decision of the West Bengal Administrative Tribunal in CCP No. 26 of 2014. By its order of 6th March, 2014, the Tribunal has dismissed the application filed by the Petitioner for contempt against the Respondents.
The genesis of the dispute between the parties to the present petition is an order dated 21st November, 2013, which is purportedly an order of deputation, by which the Petitioner has been deputed from his post as Head Assistant in the Finance Department, Government of West Bengal, at Nabanna, Shibpur, Howrah-711102 to Gorkhaland Territorial Administration (hereinafter referred to as G.T.A.) at Darjeeling as Head Assistant. It appears that by an order dated 22nd November, 2013 the Petitioner was released from the Finance Department, Government of West Bengal, at Nabanna, Shibpur.
The Petitioner then filed O.A. No. 1398 of 2013 on 26th November, 2013 before the West Bengal Administrative Tribunal. It appears that the matter was fixed for admission by the Tribunal on 10th January, 2014. The Petitioner then approached this Court for advancement of the date before 2 the Tribunal. He filed a Writ Petition, being WPST No. 463 of 2013, for this purpose. By an order dated 5th December, 2013, the Division Bench of this Court observed, after hearing the parties, that in the facts and circumstances of the case the Tribunal should hear the matter expeditiously. While doing so, the Division Bench passed the following order :
"We, however, restrain the respondent authorities from taking any step or further step pursuant to the aforesaid order dated 21st November, 2013 till 18h December, 2013 or until further orders, whichever is earlier.
Let it be on record that we have issued the aforesaid direction as otherwise the application of the petitioner herein now pending before the learned Tribunal may be rendered infructuous.
We further make it clear that we have not expressed any opinion with regard to any issue raised before the learned Tribunal on merits and the said learned Tribunal should not be influenced in any way while considering the prayer for any order and/or interim order made on behalf of the petitioner herein".
On 11th December, 2013 the Tribunal took up the application for hearing. After considering the order of the Division Bench of this Court dated 5th December, 2013 passed in the aforesaid Writ Petition, the Tribunal continued that order by passing the following order:
"Mr. Basu submits that following the transfer order the petition has been released, but, we must mention and draw attention of Mr. Basu that the Hon'ble High Court in its order dated 5th December, 2013 has stayed the entire operation of the transfer order including the release order and it is up to the state government to bear the wrath of the Hon'ble High Court or to compel the petitioner to be released. We only record that we extend the same interim order as granted by the Hon'ble High Court from 18th December to the date of final hearing of this application which we have already fixed. Parties are to follow this order strictly".
It appears from the record that the Petitioner had applied for Earned Leave on 29th November, 2013. In his leave application, he mentioned that it would not be possible for him to join his new place of posting on deputation in the G.T.A. at Darjeeling, for the present, because he wished to take legal action against the order of deputation issued to him.
After the Division Bench passed the order on 5th December, 2013, the Petitioner applied to the Respondents on 13th December, 2013 and 16th December, 2013 to permit him to resume his duty. Thus in effect, prima 3 facie, the Petitioner had made it clear to the Respondents that he did not wish to continue on leave and instead wanted to resume duty.
The Respondents however, strangely, granted him leave initially for six days from 25th November, 2013 to 30th November, 2013 without any application being submitted by the Petitioner indicating the period for which he wished to proceed on leave. The Respondents granted him leave for a further period of thirty-one days from 1st December, 2013 to 31st December, 2013 and again for thirty-one days from 1st January, 2014 to 31st January, 2014 and later from 1st February, 2014 to 28th February, 2014 and thereafter from 1st March, 2014 to 31st March, 2014 in accordance with the Rule 169 of the West Bengal Service Rules (W.B.S.R.) Part-I. It is significant to note that this leave has been granted by the State without there being any application submitted by the Petitioner. On the contrary the Petitioner had submitted for permitting him to resume duty.
The issue before us is whether the Petitioner has demonstrated that the Respondents have wilfully and deliberately violated the order passed by this Court which was later extended by the Tribunal.
In our opinion, an arguable case has been made out by the Petitioner that there is, prima facie, a disobedience of the orders of this Court or that of the Tribunal. Therefore, the petition is admitted.
As regards the interim relief, Mr. Majumder, appearing for the State Respondents, submits that this Writ Petition having arisen from a Contempt Petition where the only prayer was to punish the Respondents for contempt, no interim orders can be passed. He further submits that since the Petitioner is on sanctioned leave, he is not entitled to the benefit of the orders passed by this court or by the Tribunal. According to Mr. Majumder, the Petitioner has suppressed the fact that he was on leave, having applied for the same on 29th November, 2013. He points out that the Petitioner is, thus, not entitled to resume duty in accordance with the interim orders passed in his favour because he is on sanctioned leave. He further submits that the Government interpreted the orders of this Court and the Tribunal to mean that only the order of sending the Petitioner on deputation, that is the order dated 21st November, 2013 , was 4 stayed and not the release order which was issued on 22nd November, 2013.
The submissions of Mr. Majumder, appearing for the State, regarding the interpretation of the order need not be considered by us at the present moment as that would be taken note of by the Court while deciding the petition finally. However, prima facie, we feel that there is a disobedience of the order of the Court. Merely because the Petitioner had not prayed for interim relief in his Contempt Petition, it would not mean that the Court should shut its eyes to what appears to be, prima facie, a deliberate attempt to violate the order of the Court. The Court can always grant such orders or pass orders at the interim stage in a Contempt Petition, suo moto, which will be in furtherance of the final relief.
Having regard to the material before us, in our opinion, the action of the State to grant leave to the Petitioner on an application which is open- ended is against the Leave Rules applicable to the State Government employees. Furthermore, when the Petitioner has sought to resume duty in accordance with the orders of the Court, the question of extending his leave would not arise. The interpretation placed by the State and the order of this Court passed on 5th December, 2013, which has been extended by the Tribunal on 11th December, 2013, appears to us to be incorrect, prima facie.
We, therefore, direct the Respondents to permit the Petitioner to join duty as Head Assistant in the Finance Department, Government of West Bengal, Nabanna, Shibpur, Howrah, on 19th May, 2014. This order will not create any equity in favour of the Petitioner either in the present Writ Petition or in O.A. No. 1398 of 2013, which is pending decision before the Administrative Tribunal.
Mr. Majumder, appearing for the State, seeks a stay of the interim order passed today.
The stay is refused.
5Photostat plain copy of this order, duly counter-signed by the Assistant Registrar (Court), be given to the learned Advocate for the appearing parties on usual undertaking.
(Nishita Mhatre, J.) (Tapash Mookherjee, J.)