Calcutta High Court (Appellete Side)
Sk. Md. Anisur Rahman vs State Of West Bengal & Ors on 13 December, 2017
Author: Subrata Talukdar
Bench: Subrata Talukdar
1
13/12/2017
PA
In The High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
W.P. 29000(W) of 2017
Sk. Md. Anisur Rahman
-Vs-
State of West Bengal & Ors.
Mr. Bikas Ranjan Bhattacharya, Sr. Advocate
Mr. Goutam Dey
Ms. Rituparna Sengupta
.....for the Petitioner
Mr. Kishore Dutta, Ld. AG
Mr. Sirsanya Bandopadhyay
Ms. Subhendu Sengupta
.....for the State
Mr. Ajoy Chaubey
Ms. Hema Mukherjee
.....for the respondent Nos.10 to13
Mr. Jaydip Kar, Sr. Advocate
Mr. Billwadal Bhattacharyya
Mr. Asish Mukherjee
.....for the respondent No.6
The short issues which essentially arise for
consideration in this writ petition are as follows:-
(a) Whether the petitioner can be held to have resigned
from the office of the Chairman/Panskura Municipality
(for short the Municipality);
(b) Whether in view of the alleged resignation of the
petitioner, the State-respondents acted in accordance
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with law to fill up the casual vacancy in the office of
the Chairman;
The answer to Issue (b) depends upon first answering
Issue (a).
In order to better appreciate the context connected to
Issue (a) above, it is necessary to reproduce the
correspondence engaged in between the petitioner and the
particular responding State Authority, the SDO,
Tamluk/respondent No.4, in chronological order.
Dated: 06/10/2017
"With due respect I wish to inform you that I, Sk.
Mahammad Anisur Rahaman the Chairman of
Panskura Municipality want to resignation from my
post (Chairman) for personal ground.
Please accept my resignation letter with immediate
effect.
Thanking you.
Sd/-
(Sk. Md. Anisur Rahman)
Chairman
Panskura Municipality"
Dated: 09/10/2017
"With reference to the subject cited above, this is to
inform you that you have to resign from the post of
Chairman of Panskura Municipality observing the
formalities as laid down in sub-section 2 under
section 18 of the West Bengal Municipal Act, 1993
and sub rule 2 of the rule 6 of the West Bengal
Municipalities (Procedure and Conduct of Business)
Rules, 1995 (photo copies enclosed).
Sd/-
Sub-Divisional Officer
Purba Medinipur"
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From the language of the letter of proposed resignation
dated 6th October, 2017, it transpires that intention has been
expressed by the petitioner to resign from the post of
Chairman on personal ground. Accordingly, the resignation
is forwarded for acceptance with immediate effect.
From the reply of the SDO/respondent No.4 dated 9th
October, 2017, the petitioner has been directed to observe
the formalities as laid down under the West Bengal
Municipal Act, 1993 (for short the 1993 Act) read with the
West Bengal Municipalities (Procedure and Conduct of
Business) Rules, 1995 (for short the 1995 Rules).
It is important to notice that the response of the
SDO/respondent No.4 makes mention of the words, you have
to resign from the post of Chairman of Panskura Municipality
observing the formalities as laid down in ...........
Notwithstanding the law on resignation as understood
in jurisprudence specifying, inter alia, that such an action
may carry an unilateral or, bilateral obligations, it would
become first necessary to comprehend whether the intention
to resign could be at all treated to be an officially acceptable
resignation.
Carrying the above discussion further, this Court, at
this juncture, must respectfully notice the pronouncement of
the Hon'ble Apex Court as reported in 2003 (1) SCC 701 In
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Re: Dr. Prabha Atri vs. State of U.P. & Ors.. The relevant
portion is reproduced:-
"2. The appellant, who was working as Anaesthetist
in Kamla Nehru Memorial Hospital, Allahabad, was
issued with a Memo dated 5.1.1999, bringing to her
notice a lapse in that she left without informing even
Dr. Banerjee, when he requested her around 1300
hrs. to give anaesthesis to one patient admitted in
emergency with shock due to ruptured uterus, which
needed urgent operation, and such conduct not only
amounted to negligence as per Hospital Service Rule
10(i) but also was against medical ethics. She was
also asked to submit her explanation by 5.00 P.M.
on 6.1.1999, failing which it would be taken that
she accepted the lapse and the Hospital would be at
liberty to proceed against her as per Service Rules.
Since the appellant did not respond, on 8.1.1999 the
appellant was placed under suspension with
immediate effect, pending institution of a domestic
enquiry pertaining to the above incident. On receipt
of the said Memo on 9.1.1999, the appellant replied
to the Secretary of the Hospital that she had already
clarified her position verbally in his presence that on
that day she was sick and very tired, that Dr.
Navneeta Banerjee also denied having made any
complaint as such except writing for purposes of
record about the incident and that formal reply in
writing was not sent since she had already
explained the position and nothing more was
required. She further added in her letter as
hereunder:-
"Your letter is uncalled for and should be
withdrawn. I have been working in this Hospital
since May 10, 1978 and have always worked in the
best interest of the patients. It is tragic instead of
taking a lenient view of my sickness you have opted
to punish me.
If the foregoing is not acceptable to you then I have
no option left but to render my resignation with
immediate effect."
3. Thereupon, by an Order dated 9.1.1999, the
appellant was informed that the suspension order
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could not be withdrawn since her explanation was
not found to be satisfactory. A separate order dated
9.1.1999 was also said to have been passed as
hereunder: "Reference is invited to letter dated
9.1.1999 of Dr. Prabha Atri, Anaesthetist, vide
which she has submitted her resignationis accepted
with immediate effect as requested. Dr. P. Atri is
advised to submit No Dues Certificate as per
Hospital Service Rule so that her terminal benefits
may be processed for payment."
4. Yet another order was also said to have been
passed on the same day wherein after adverting to
the acceptance of the resignation, it has been stated
that the domestic enquiry ordered on 8.1.1999 to
enquire into the incident pertaining to Dr. Atri should
not be proceeded with. In response to the same in
her letter dated 14.1.1999, the appellant stated that
she never resigned and not only she nowhere stated
that she is resigning but unnecessarily something
has been read between the lines. Reiterating her
stand that she had not resigned but shown only
intention to resign, the appellant requested for
rectifying the mistaken understanding of her earlier
letter by taking necessary steps in the correct
perspective. The Secretary of the Hospital by his
communication dated 16.1.1999 reiterated the
correctness of the action taken and declined to
reconsider the matter.
10. We have carefully considered the submissions
of the learned counsel appearing on either side, in
the light of the materials and principles, noticed
supra. This is not a case where it is required to
consider as to whether the relinquishment envisaged
under the rules and conditions of service is
unilateral or bilateral in character but whether the
letter dated 9.1.1999 could be treated or held to be a
letter of resignation or relinquishment of the office,
so as to severe her services once and for all. The
letter cannot be construed, in our view, to convey
any spontaneous intention to give up or relinquish
her office accompanied by any act of relinquishment.
To constitute a `resignation', it must be unconditional
and with an intention to operate as such. At best, as
observed by this Court in the decision in P.K.
Ramachandra Iyer (supra) it may amount to a
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threatened offer more on account of exasperation, to
resign on account of a feeling of frustration born out
of an idea that she was being harassed
unnecessarily but not, at any rate, amounting to a
resignation, actual and simple. The appellant had
put in about two decades of service in the Hospital,
that she was placed under suspension and exposed
to disciplinary proceedings and proposed domestic
enquiry and she had certain benefits flowing to her
benefit, if she resigns but yet the letter dated 9.1.99
does not seek for any of those things to be settled or
the disciplinary proceedings being scrapped as a
sequel to her so-called resignation. The words 'with
immediate effect' in the said letter could not be given
undue importance dehors the context, tenor of
language used and the purport as well as the
remaining portion of the letter indicating the
circumstances in which it was written. That the
management of the Hospital took up such action
forthwith, as a result of acceptance of the
resignation is not of much significance in
ascertaining the true or real intention of the letter
written by the appellant on 9.1.1999. Consequently,
it appears to be reasonable to view that as in the
case reported in P.K. Ramachandra Iyer (supra) the
respondents have seized an opportunity to get rid of
the appellant the moment they got the letter dated
9.1.1999, without due or proper consideration of the
matter in a right perspective or understanding of the
contents thereof. The High Court also seems to have
completely lost sight of these vital aspects in
rejecting the Writ Petition."
Taking a cue from the above recorded legal
pronouncement, this Court, while noticing the intention of
the petitioner to relinquish office with immediate effect,
must, at the same time, deal with the manner in which such
intention was dealt with by the respondent No.4/SDO. By
instructing the petitioner to observe the formalities as
provided under 1993 Act and 1995 Rules while resigning, to
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the mind of this Court, the respondent No.4/SDO has not
treated the intention to resign as expressed by the petitioner
as a de jure letter of resignation. In plain words the
respondent NO.4/SDO conveyed that the letter of 6th
October, 2017 is not an officially recognized resignation letter
or, alternately, under the statutory procedure no resignation
letter can be said to exist. Therefore the petitioner was
advised in prospective terms that you have to resign
(emphasis supplied) from the post of Chairman of Panskura
Municipality observing the formalities as laid down in...
This Court therefore finds that the respondent
No.4/SDO did not treat the letter intending to resign as a de
jure formal letter of resignation at all. In other words, on 9th
October, 2017, there was no resignation letter at all on the
official table.
This Court must further notice the sequence of events
immediately following the communication of 9th October,
2017.
For avoiding prolixity, the petitioner has annexed the
documents following the events of 6th October, 2017 and 9th
October, 2017. Such events are brought to the fore through
correspondence of the petitioner addressed to the relevant
District Authorities namely, the District Magistrate, seeking
the assumption of charge of the Chairmanship to the
Municipality.
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Such assumption and, not re-assumption, of charge was
actually performed by the Executive Officer of the
Municipality vide his communication dated 14th November,
2017. Such communication also requires to be reproduced
in full:-
"With reference to rule 19A of West Bengal Municipal
Act, 1993 Sk. Md. Anisur Rahman has taken
assuming entire charges from the acting Executive
Officer Sri Sankar Kumar Das and Accountant Sri
Tarun Kumar Misra to day on 14th Nov, 2017at 12
noon which they have prepared inventory of all
cash, assets, documents, registers and seal which
has been also received by the undersigned."
Mr. Bikash Ranjan Bhattacharya, Ld. Senior Counsel,
appearing for the writ petitioner therefore submits that at no
point of time did the office of the Chairman of the
Municipality fall vacant or, even in the remotest sense,
casually vacant. Mr. Bhattacharya points out that post the
communication dated 9th October, 2017, the petitioner
administered the charge of Chairman of the Municipality till
the fateful letter of the Department of Urban Development
and Municipal Affairs dated 23rd November, 2017 was issued
purportedly under powers conferred by Section 442 of the
1993 Act. Mr. Bhattacharya relies upon the authority of
2010 (5) SCC 329 in the matter of Laxmi Verma vs. State
of Maharashtra & Ors. at Paragraphs 2 and 20 thereof.
Underscoring the contents of paragraph 20, Mr.
Bhattacharya submits that in the facts of that case before
the Hon'ble Apex Court it was plainly the matter that the
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petitioner was obliged to tender resignation in the strict
manner as laid down by statute. Since the statutory
formality was not followed, the so-called resignation of the
petitioner was found to be legally invalid. Therefore,
consequential actions were also set aside.
At this juncture, this Court finds it useful to reproduce
Paragraph 20 of 2010 (5) SCC 329 (supra):-
"However, after going through the aforesaid Sub-
section (2) of Section 41 of the Act, the plain and
only conclusion that can be arrived at is that
resignation has to be tendered by the Councillor
addressed to the Collector. It is to be delivered by
him in person and then he has to affix his signature
before the Collector on compliance of the aforesaid
conditions, then only such resignation shall be
effective. It cannot be disputed that an obligation
was created by the Statute to perform it in the
manner as provided therein, then in case of its non-
compliance, the effect thereof would be rendered
redundant and in valid in law."
From a wholistic reading of events the fact of resignation
offered by the petitioner within the legal parameters on the
subject, do not show the offer to be in sync with the
statutory procedure. Since the petitioner did not follow up
on the wise words of the respondent No.4/SDO, as on 9th
October, 2017 and thereafter, the petitioner cannot be held
to have officially resigned.
Next, this Court must focus on the communication of
the State/respondents dated 23rd November, 2017.
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Since the letter of resignation dated 6th October, 2017
and the response of the SDO/respondent No.4 dated 9th
October, 2017 have been reproduced in full this Court, for
the sake of propriety, reproduces the order of 23rd November,
2017 is also set forth in full:-
"No. 759/MA/O/C-4/1M-18/2017
Dated, Kolkata, the 23rd Day of November, 2017
ORDER
WHEREAS the District Magistrate, Purba Medinipur has informed that the elected Chairman of Panskura Municipality has tendered his resignation letter addressing to the SDO, Tamlum, Purba Medinipur on the 6th October, 2017 and the resignation letter was sent back to the Chairman for observing the formalities as laid down in the Sec 18 of the West Bengal Municipal Act, 1993 as well as rule 6 (2) of the West Bengal Municipalities (Procedure and Conduct of Business) Rules, 1995; but till date no meeting of BOC had been convened;
AND WHEREAS, the DM, Purba Medinipur has confirmed the existence of Vice-Chairman in the municipality is now in stalemate condition and no elected office bearer is functioning there following the provisions of West Bengal Municipal Act and allied Rules, thereby causing disruption of civic services which are ought to be delivered by an elected municipal body;
AND WHEREAS, neither Chairman nor the Vice Chairman made over all the cash, assets, documents, registers and seals on such date, place and hour as may be fixed by the District Magistrate in the presence of the District Magistrate or any other Executive Magistrate authorized by the District Magistrate in this behalf under Section 19A of West Bengal Municipal Act, 1993, and as such difficulty arises in giving effect to the provisions of this Act; AND WHEREAS, the situation attracts the provision of section 442 of the West Bengal Municipal Act, 1993, wherein intervention of State Government is delineated in the event of in giving effect to the 11 provisions of this Act, to do or to cause to be done anything, not inconsistent with the provisions of this Act, which may be necessary for removing the difficulty;
NOW, THEREFORE, in exercise of power conferred by section 442 read with sub-section (4) of section 17 of the West Municipal Act, 1993 (West Ben. Act XXII of 1993) (hereinafter referred to as the "said Act"), the Governor is pleased hereby to appoint Saidul Islam Khan, elected member from constituency (ward) No. 9(nine) of Panskura Municipality in the district of Purba Medinipur, to act as the Chairman who shall hold Office as per proviso to the sub-section (4) of section 17 of the said Act until a Chairman, elected under the provisions of sub-section (3) of section 17 of the said Act, enters upon his office.
By order of the Governor.
Sd/-
Joint Secretary to the Government of West Bengal"
Qua the order dated 23rd November, 2017, this Court notices as follows:-
First, the order accepts the response of the respondent No.4/SDO that the petitioner was required to tender his resignation upon observing the formalities legally in place.
Second, however, the order impugned dated 23rd November, 2017 proceeds to describe/treat the communication dated 6th October, 2017 of the petitioner as his resignation letter or, the resignation letter and thereafter proceeds to direct the petitioner to take steps as per law under the 1993 Act and 1995 Rules.12
Third, the order impugned thereafter proceeds to conclude that the administration of the municipality has been put into a stalemate.
Fourth, the order also proceeds to underscore the submissions placed in Court today by Ld. Advocate General and Ld. Counsel for the Municipality that the Certificate of Charge as handed over to the writ petitioner by the Executive Officer/the Municipality/the respondent No.5 on 14th November, 2017 is inconsistent with the provisions of Section 19A of the 1993 Act, since, Section 19A mandates that only the District Magistrate or, an Executive Magistrate authorized by the District Magistrate can only take steps to hand over the charge.
Fourth, the order impugned dated 23rd November, 2017 therefore perceived a difficult situation in running the affairs of the Municipality which required the application of Section 442 of the 1993 Act, which reserves to the State Government the power to remove difficulties.
Fifth, as a consequential step towards exercise of power under Section 442, by further application of Section 17 Sub-
Sections 3 & 4 of the 1993 Act, another elected member of the Municipality was directed to act as Chairman.
Now upon taking a real time view of the events set into motion by the letter of 6th October, 2017 and culminating in the order impugned of 23rd November, 2017, this Court finds a mismatch between the legal inference/conclusion that can 13 be drawn from the reply dated 9th October, 2017 and the premise on which the order of 23rd November, 2017 is based.
Since this Court holds that the letter dated 6th October, 2017 was never treated to be a an official/officially recognized resignation, the perception of difficulty in running the affairs of the Corporation under Section 442 (supra), which is the first in a series of consequential actions intended to remove the difficulty, stand voidable.
Added to the above recorded line of reasoning surrounding the lack of statutory flavor to the letter dated 6th October, 2017, this Court must also find against the respondents on issues connected to a perception of a casual vacancy which could have otherwise fallen vacant in the post of the Chairman.
Simply put, an intention to resign which has been disapproved to be an official letter of resignation, still remains confined to the person intending so to resign and, cannot be the trigger for a chain of events in rem by importing/imputing the contingencies of difficulty, a casual vacancy, otherwise et al. In the backdrop of the above discussion, the order impugned dated 23rd November, 2017 and, all consequential actions showing therefrom stand set aside.
WP 29000(W) of 2017 stands allowed.
14Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.
(Subrata Talukdar, J.) Later Mr. Billwadal Bhattacharyya, Ld. Counsel for the Municipality prays for stay of operation of the final order dated 13th December, 2017.
The prayer for stay is seriously opposed by Mr. Dey, Ld. Counsel for the petitioner.
However, the prayer for stay is considered and granted only for a week from date.
(Subrata Talukdar, J.)