Calcutta High Court (Appellete Side)
(Ad) vs The State Of West Bengal & Ors on 12 January, 2018
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
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S/L No.01 W.P. 18604 (W) of 2016
12.01.2018
Ct-12 Sri Arindam Chowdhury
(AD) vs.
The State of West Bengal & Ors.
Mr. Dev Kumar Sharma, Adv.
... for the petitioner.
None appears for the respondents for the 3rd day
today.
The writ petitioner joined the service of the 2nd respondent with effect from 13th September, 2013. After completion of his probation period he was confirmed in service as a Senior Officer of the respondent no.2. A show cause came to be issued to the writ petitioner by letter dated 26th May, 2016 in connection with certain 'Facebook' posts made by the writ petitioner against officials of the company including the Managing Director, inter alia, complaining about mismanagement.
The writ petitioner replied to the show-cause notice on the 3rd of June, 2016. Thereafter, on 16th of June, 2016, the writ petitioner was terminated from service with immediate effect. The ground for termination was, inter alia, that the 'Facebook' posts of the writ petitioner seriously damaged the image and goodwill of the respondent no.2.
An earlier writ petition filed by the writ petitioner being W.P. No.14055(W) of 2016 was rejected at the admission stage for absence of pleadings as regards the respondent no.2 being 'State' within the meaning of Article 12 of the Constitution of India.
The writ petition was dismissed.
2In the present writ petition, further and better particulars of the status of the respondent no.2 have been disclosed that the said respondent no.2 has been registered with Registrar of Companies at Calcutta as a 'State Government company'.
The issue of maintainability of the present writ petition was raised by the respondents at the time of admission. By an order dated 27th September, 2016, a Single Judge of this Hon'ble Court admitted the writ petition and called for affidavits keeping the issue of maintainability open.
The first issue would, therefore, be as to whether the disposal of the earlier writ petition would be a bar to the institution of the instant writ petition on the selfsame cause of action. Reliance has been placed by the writ petitioner in the case of Hoshnak Singh v. Union of India, reported in AIR 1979 Supreme Court 1328. Applying the dicta laid down in the said decision, I am of the view that the earlier order dated 5th August, 2016 writ petition had not conclusively decided the legal status of the respondent no.2 only for want of appropriate pleadings. In my opinion, therefore, the order dated 5th August, 2016 passed in the earlier writ petition will not stand in the way of the instant writ application being entertained.
The second question that needs to be decided is as to whether the respondent no.2 is a 'State' within the meaning of Article 12 of the Constitution of India. It appears from the documents annexed and the pleadings in the instant writ application that the respondent no.2 3 was registered as a State Government company with the ROC Calcutta. In addition thereto, there appears to be substantial control of the State of West Bengal in the ownership and management of the instant company of the respondent no.2. The same is evident, inter alia, from the fact that the majority shares and controlling interest in the respondent no.2 is of the WBIDC which is itself a State Government Organization. There is also participation by the Small Industries Development Bank of India (SIDBI) in the appointment of key personnel of the respondent no.2. The Managing Director of the said respondent no.2 is also appointed by the State of West Bengal through bodies corporate under its control.
The above indicates in no one uncertain terms that the respondent no.2 is 'State' within the meaning of Article 12 of the Constitution of India.
It is also pertinent to mention that the respondent no.2 was represented at the time of admission of the instant writ application but there is no representation before this Court at the time of final hearing. The State and the respondent no.2 have also not filed any affidavit to oppose the claims in the writ application. The allegations in the writ application, therefore, remained uncontroverted.
Coming to the merits of the case, I find that after termination of the writ petitioner from service by the order dated 16th June, 2016, the writ petitioner preferred an appeal before the Board of Directors.
The said Board of Directors has not yet disposed of the said appeal.
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Mr. Sharma appearing for the writ petitioner at the bar prayed that his grievance, at this stage, would be satisfied if the appeal is disposed of by the Board of Directors of the respondent no.2.
In those circumstances, W.P.18604 (W) of 2016 is hereby disposed of with the following directions:
(a) The Board of Directors of the respondent no.2 shall dispose of the appeal filed by the writ petitioner received by them on 4th of July, 2016 which is Annexure 'P-9' to the writ application within a period of one month from the date of communication of this order;
(a) The writ petitioner shall supply a copy of the writ application to the Managing Director of the respondent no.2 for onward communication to the Board of Directors.
Needless to mention that the order of termination of service dated 16th June, 2016 shall abide by the result of the appeal referred to hereinabove to be disposed of by the Board of Directors of the respondent no.2 as per the above direction.
There will be no order as to costs.
(Rajasekhar Mantha, J.)