Calcutta High Court (Appellete Side)
Smt. Gouri Dasgupta vs The State Of West Bengal & Ors on 11 December, 2009
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
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In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Jayanta Kumar Biswas.
W.P. No. 7975 (W) of 2004
Smt. Gouri Dasgupta
v.
The State of West Bengal & Ors.
Mr Alok Kumar Ghosh and Mr Mantu Ranjan Das, advocates, for the petitioner. Mr Pabirtra K.
Basu and Ms Indrani Pal, advocates, for the State.
Heard on: December 10, 2009.
Judgment on: December 10 & 11, 2009.
The Court:- The petitioner in this art.226 petition dated April 21, 2004 is questioning the
undated decision of the Deputy Director of Library Services, Government of West Bengal,
forwarded to her for information by a memo dated October 23, 2003, Annexure P18 at pp.114-122,
that she "herself did not join of her duties in the Raipur Club and Library, 62, Raipur, Garia, 24-
Pgs. (South) of her own accord and it does not appear that she was prevented from joining during
the period from 8.3.1985 to 3.3. 1987 (sic) and accordingly she is not entitled to get arrear salaries
and remuneration during the said period in terms of Financial Rules in this regard."
As will appear from Annexure P1 at p.52, an undated letter of the District Social Education
Officer, 24 Parganas (now South 24 Parganas), a copy whereof was forwarded to the petitioner by a
memo dated May 2, 1981, Raipur Club and Library in Garia of the district South 24 Parganas was a
Government Primary Unit Library in 1981. In the letter it was stated that the District Advisory
Council of Social Education, 24 Parganas had approved the petitioner's selection for appointment
as librarian at the club; and that she would be an employee of the Government Sponsored Library
System, not of the Government.
By an application dated January 7, 1985, Annexure P2 at p.55, the petitioner requested the
Administrator of the library to grant her leave of absence from January 10, 1985 to February 11,
1985 so that she might prepare for and take the pending final M.A. Exam at the Jadavpur
University. Then she submitted an application dated February 10, 1985, Annexure P2 at p.56,
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seeking extension of leave upto March 5, 1985 so that she might sit the whole exam beginning
February 4, 1985 and ending March 5, 1985.
By a letter dated March 8, 1985, Annexure P2 at p.57, the Administrator informed her that
since her leave application dated February 10, 1985 was not approved, by a letter dated February
15, 1985 she was asked to report for duty within seven days, but she ignored the direction and did
not return to work; that since the matter was contrary to the rules of the library, the Administrator
referred it to the Social Education Officer for opinion; and that in the absence of direction of the
Social Education Office the Administrator was unable to permit her to work in the library.
Questioning the Administrator's decision stated in the Administrator's letter dated March 8,
1985 the petitioner instituted Title Suit No. 129 of 1985 in the Court of Munsif at Alipore and the
Munsif made an interim order dated March 12, 1985, Annexure P3 at p.58, restraining the two
defendants in the suit - (1) the District Social Education Officer, 24-Parganas and (2) Raipur Club
Library represented by its Secretary, from giving any effect to the letter dated March 8, 1985.
As will appear from the letter of the Administrator dated April 11, 1985, Annexure R at p.5
of the petitioner's supplementary affidavit dated July 6, 2009, and the petitioner's reply thereto
dated April 18, 1985, Annexure X at p.31 of the petitioner's affidavit-in-reply dated November 19,
2004, armed with the interim order of the Civil Court dated March 12, 1985 the petitioner reported
for duty and worked in the library on March 21, 1985.
According to the Administrator, as stated in the Administrator's letter dated April 11, 1985,
from March 22, 1985 the petitioner started absenting herself from office without stating any reason
in writing. By the letter the Administrator called upon the petitioner to show case why appropriate
legal action should not be taken against her.
In her letter dated April 18, 1985 the petitioner stated these. On March 21, 1985 the
Administrator, accompanied by a few persons and in presence of the members of the library, asked
her not to attend office from March 22, 1985. On March 22, 1985 when she went to report for duty
she found the library door locked, and the Administrator's people sitting beside the door prevented
her from entering the library. Instead of leaving the place she seated herself by the side of the
closed door. The Administrator present there witnessed everything, but did not say anything when
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the people pushed her away finding that she was making an attempt to enter the library. Hence it
was surprising that the Administrator was asking her to explain the reasons for her absence from
office. She was apprehending risk to her life and the Administrator should see that she was able to
work in the library.
The disputes between the parties started from this stage on March 22, 1985. While,
according to the petitioner, the Administrator and the Administrator's associates prevented her
from working in the library, though she was available and willing to work; according to the
Administrator, the petitioner wilfully absented herself from the office from March 22, 1985. It is
not clear what happened between April 19, 1985 and May 31, 1988.
The petitioner wrote a letter dated June 1, 1988, Annexure P4 at p.61, requesting the
District Social Education Officer to intervene for settling the disputes between the parties to the
suit.
By a letter dated June 4, 1988, Annexure P4 at p.62, the District Social Education Officer,
District Library Officer (in-charge) and Member-Secretary, Local Library Authority, 24-Parganas
asked the Secretary of the club to inform the District Social Education Officer, District Library
Officer (in-charge) and Member-Secretary, Local Library Authority whether the club was
"interested in administrative settlement." The authority writing the letter stated that in the opinion
of the authority the disputes could be administratively adjudicated if the parties to the petitioner's
pending suit agreed.
By a letter dated August 29, 1988, Annexure P4 at p.63, the Secretary of the club informed
the District Social Education Officer that the club was agreeable not to proceed with the suit
provided (i) the petitioner unconditionally withdrew her suit without claiming salary for the period
of absence, and (ii) she was transferred from the library immediately. The Secretary also stated that
the club would not take any disciplinary action, if the suit was withdrawn unconditionally. It is to
be noted that the club did not institute any suit in any Court.
By a letter dated February 2, 1989, Annexure P5 at p.65, the petitioner requested the
District Social Education Officer to see that she could attend office and work. She pointed out that
being the Member-Secretary of the Local Library Authority, her appointing authority, the District
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Social Education Officer, also a party to the pending suit, should see that she could attend office
and work, especially when the Civil Court made an interim order in the pending suit.
In her letter dated February 2, 1989 the petitioner narrated in detail how the Managing
Committee of the club prevented her from attending office and working. She made a complaint
dated February 7, 1989, Annexure P5 at p.65, to the police and then by a letter dated January 30,
1990, Annexure P6 at p.69, requested the Director of Library Services to transfer her to any other
library. In the letter she narrated her grievances.
The authorities did not respond to her representations in which she stated that, if necessary,
she would withdraw the suit. When the parties remained entangled in the dispute, the Civil Court
took up the suit for ex parte hearing and by a judgment dated July 26, 1996, Annexurre P7 at p.73,
decreed it ex parte with costs. It was declared that the letter dated March 8, 1985 of the
Administrator of the club was "void and invalid and of no effect." The defendants were "restrained
from taking action without due process of law against the plaintiff and to carry on her employment
as Librarian at Raipur Club and Library."
Even after the decree of the Civil Court declaring the letter of the Administrator dated
March 8, 1985 to be void, invalid and of no effect, the Administrator of the library did not permit
the petitioner to attend office and work until March 4, 1997. Though from March, 1997 she was
paid salaries and allowances, according to her, the respondents were paying her at a rate much
lower than the one to which she was entitled in law. She made representations to the District Library Officer for fixation of pay and salary arrears for the period from March 8, 1985 to March 3, 1997.
By an order dated June 21, 2001, Annexure P1 at p.54, the District Library Officer and Secretary, Local Library Authority, South 24-Parganas confirmed the petitioner's appointment to the post of librarian at the club as from May 11,1983. Since all her grievances were not redressed, she ultimately moved W.P. No.2542 (W) of 2003 under art.226 before this Court.
By a judgment and order dated August 1, 2003, Annexure P16 at p.108, the petition was disposed of giving the following directions:
5"1) The District Library Officer will provisionally treat the said period of absence from March 8, 1985 to March 3, 1997 as the period of Extra Ordinary leave subject to the final decision of the Director or Deputy Director of Library Services and on such basis, he will fix the petitioner's pay from the due date within a period of five weeks from the date of communication of this order.
The said fixation of pay will also be subject to the decision of the Director of Library Services and if necessary, the same will be modified on the basis of the decision of the Director or Deputy Director of Library Services.
2) The petitioner will be entitled to get her current salaries under this order on the basis of the pay as fixed by the District Library Officer. The arrear salaries and allowances, if any, will be made available only after the decision of the Director or Deputy Director of Library Services.
3) The Director of Library Services or the Deputy Director of Library Services will consider and decide the dispute whether the petitioner herself did not join or she was prevented from joining during the period from March 8, 1985 to March 3, 1997 after giving opportunity of hearing to the writ petitioner and the Management of the Library concerned. the final decision will be taken by the Director or Deputy Director of Library Services within two months from the date of communication of this order."
It is in compliance with order of this Court dated August 1, 2003 that the Deputy Director of Library Services, Government of West Bengal gave the impugned decision. The Deputy Director gave the decision entirely on the basis of the materials produced by the petitioner. The club and the other officials of the Directorate of Library Services chose not to participate in the proceedings. No proceedings were initiated under any statutory provision. The petitioner did not admit in any manner that during the period from March 8, 1985 to March 3, 1997 she, of her own accord, absented herself from office. On the contrary, she categorically asserted that during the period she was prevented by the Administrator of the club from attending office and working. The Deputy Director disbelieved the petitioner's case on the ground that she neither moved the Civil Court alleging contempt of Court nor the Criminal Court.
The question is whether there was any basis to disbelieve the petitioner's case that during the period from March 8, 1985 to March 3, 1997 the Administrator of the library prevented her from attending office and working.
Mr Ghosh, counsel for the petitioner, has argued as follows. On the facts it cannot be said that the petitioner absented herself from office. In view of the decision of the Administrator dated March 8, 1985 and for the reasons stated in the petitioner's representation dated April 18, 1985 the petitioner was unable to attend office and work. The findings of fact recorded by the Deputy Director are perverse.
6Mr Bose, counsel for the State and its officials, has submitted as follows. Nobody ever prevented the petitioner from attending office and working. The petitioner absented herself from office. In any case, the disputed question whether she was prevented from attending office and working or she absented herself cannot be decided by the Writ Court. The findings of fact recorded by the Deputy Director in the impugned decision cannot be questioned by the petitioner before the Writ Court.
The Administrator's decision dated March 8, 1985 was clear that in the absence of direction of the Social Education Officer the Administrator would not permit the petitioner to work in the library. It is evident that by referring to the Social Education Officer the Administrator was actually referring to the District Social Education Officer. The Administrator's decision was challenged in the Civil Court and the District Social Education Officer was a defendant in the suit. The Civil Court made the interim restraining order on March 12, 1985. On the strength of the interim order the petitioner worked only on March 21, 1985.
From March 22, 1985 the petitioner was alleging that the Administrator was preventing her from attending office and the Administrator was alleging that the petitioner was wilfully absenting herself from office. The District Social Education Officer remained silent and inactive.
With effect from July 1, 1985 the Service Rules of the Employees in the Government Sponsored Public (Other than Govt.) Libraries/aided Libraries in West Bengal, 1985 made under the West Bengal Public Libraries Act, 1979 came into force. Under the Rules the petitioner's appointing authority was the Local Library Authority, and the appointing authority was empowered to initiate disciplinary proceedings against the petitioner.
By a letter dated July 27, 1984, Annexure R6 to the opposition dated August 4, 2004 affirmed by the District Library Officer, the Administrator of the Library had called upon the petitioner to show cause why disciplinary action should not be taken for her irregular office attendance and attending the Jadavpur University as "a student of P.G. Bengali (Evening) 3rd year class of the session 1983-84." The Civil Court did not restrain anyone from initiating disciplinary proceedings against the petitioner.
7In her letter dated April 18, 1985 the petitioner stated that the Administrator was preventing her from attending office. She wrote the letter dated June 1, 1988 requesting the District Social Education Officer, District Library Officer (in-charge) and Member-Secretary, Local Library Authority to intervene and do the needful. This authority, opining that the matter could be settled administratively, asked the club to say whether it was interested in settling the matter. The club wrote the reply dated August 29, 1988 that it would not take disciplinary action, if the petitioner unconditionally withdrew the suit and was immediately transferred. It is to be noted that neither the club nor the Administrator thereof was competent to take disciplinary action against the petitioner.
The appointing authority, the disciplinary authority, did not find any reason to suspend the petitioner or to initiate disciplinary proceedings against her on the basis of the allegations made by the club and the Administrator thereof.
In view of the stalemate the petitioner wrote the letter dated January 30, 1990 requesting the Director of Library Services to transfer her to any other library. In terms of the provisions of s.6 of the West Bengal Public Libraries Act, 1979 the Director was under the obligation to supervise and control the library. Under r.18 of the Rules the Director also possessed power to suspend the petitioner or initiate disciplinary proceedings against her or to take both the actions.
The authorities under the Act did not give any attention to the petitioner's representations. Ultimately she got relief from the Civil Court that decreed her suit ex parte on July 26, 1996. The defendants in the suit were given liberty to proceed against the petitioner according to law.
At long last the club allowed the petitioner to attend office on March 4, 1997. The appointing authority issued an order dated June 21, 2001 confirming her appointment to the post of librarian at the club as from May 11, 1983. Since no benefit was given for the period from March 8, 1985 to March 3, 1997 she moved W.P. No.2542 (W) of 2003, and disposing of the petition, this Court directed the Director to decide the matter. The Director did not find any reason to initiate disciplinary proceedings against the petitioner. The Deputy Director, not competent to initiate disciplinary proceedings, took up the matter for decision de hors the provisions of the Act and the Rules.
8On these facts, I am unable to see how the Deputy Director giving the impugned decision could disbelieve the petitioner's case that the Administrator of the library prevented her from attending office and working during the period, though she was ready and willing to work; and hold that since the petitioner, of her own accord, did not attend office during the period, she would not be entitled to any salary arrears therefor.
The power to believe or disbelieve the existence of a fact and to draw an inference from the available materials can be exercised only by a Court or forum or authority empowered by law to adjudicate and determine disputes between parties, and for the purpose requisite proceedings are to be initiated under the relevant provisions of the law concerned.
In this case the disputes between the Administrator of the club and the petitioner could be, and ought to have been, adjudicated and determined by the appointing authority concerned by initiating disciplinary proceedings either against the Administrator or the petitioner. The question whether the Administrator was preventing the petitioner from attending office and working, or the petitioner was absenting herself from office could be adjudicated only in the duly initiated disciplinary proceedings and not otherwise. The appointing authority's failure to initiate such proceedings while created the employer's continuing liability to give the petitioner all service benefits even though she was not attending office and working, did not at once create the petitioner's onus to approach the Civil Court for establishing that the Administrator was preventing her from attending office and working.
For undisclosed reasons the authorities empowered under the Act to initiate disciplinary proceedings chose not to initiate such proceedings against either the Administrator or the petitioner. On the contrary, they unconditionally permitted the petitioner to report for duty at the club on March 4, 1997 and then issued the order dated June 21, 2001 confirming the petitioner's appointment to the post as from May 11, 1983. Even after the order of this Court dated August 1, 2003 the Director did not think it is necessary to initiate any disciplinary proceedings though that would have been the normal statutory process in which the allegation against the petitioner could be established and consequently she could be denied the service benefits for the period.
9In view of the provisions of r.14 of the Rules the petitioner being in continuous service as librarian at the library acquired a legal right to draw pay and allowances at the appropriate scale revised by the Government from time to time. The respondents in effect deprived the petitioner of the service benefits, her statutory right conferred by the Rules, otherwise than in accordance with the provisions of the Rules. They could deprive her of the benefits only on the basis of a lawfully issued suspension order and penalties imposed by the disciplinary authority after initiating disciplinary proceedings according to Rules. The Administrator and the Managing Committee of the library, as a matter of fact, made a complete mockery of the provisions of the Act and the Rules, and the interim order and decree of the Civil Court.
The Administrator and the Managing Committee of the library did not contest the suit, did not request the disciplinary authority to initiate disciplinary proceedings, did not contest the petitioner's previous art.226 petition in this Court, did not appear before the Deputy Director who gave the impugned decision, and have chosen not to appear in the present proceedings, in spite of repeated notices.
It is a classic example of deliberate inaction of statutory authorities who permitted the Administrator and the Managing Committee of the library to throw out an employee enjoying statutory protections from her permanent employment. It is evident from the conduct of the Administrator and the Managing Committee of the library that for undisclosed reasons they enjoyed an awesome immunity.
On these facts, I am unable to see how the respondents can deprive the petitioner of her service benefits to which she was entitled during the period. According to service rules she acquired a statutory right to get the benefits and she could not be deprived of them without sanction of law. In my opinion, the respondents have sought to deprive her of the benefits without any authority of law. I am, therefore, of the view that the petitioner is entitled to full service benefits for the period in question.
For these reasons, I allow the petition, set aside the impugned decision and order as follows. The respondents shall pay the petitioner all service benefits including salary arrears, revision of pay, pay fixation, continuity of service, etc. to which she would have been entitled had she attended 10 office and worked during the period from March 8, 1985 to March 3, 1997. All financial benefits shall be calculated by the Director of Library Services and paid within four weeks from the date of communication of this order to him. No interest and costs. Certified xerox.
(Jayanta Kumar Biswas, J.)