Calcutta High Court
Nirmal Kumar Das Gupta vs The Board Of Trustees For The on 8 September, 2009
Author: Dipankar Datta
Bench: Dipankar Datta
W.P. 1880 OF 2008
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Present : The Hon'ble Justice Dipankar Datta
Nirmal Kumar Das Gupta
...Petitioner
Vs.
The Board of Trustees for the
Port Trust of Kolkata & ors.
...Respondents
For the petitioner : Mr. Saptangshu Basu
Mr. Kaushik Chanda
For the respondents : Mr. Kishore Dutta
Mr. Sougata Bhattacharya
Heard on : 23.6.2009 and 15.7.2009
Judgment on : 8.9.2009
Propriety, legality and/or validity of the order dated 29.10.2008 passed by the Chairman of the Board of Trustees for the Port of Calcutta, respondent no.2, has been questioned in the present petition.
It is not in dispute that questioning the correctness of the decision of the respondents in deducting wages for a sum of Rs.5943.19p, the petitioner had the occasion to approach the competent authority under the Payment of Wages Act (hereafter the Act) by filing an application (registered as PWA Case No.160/97). His application was allowed by order dated 7.9.1991 whereby the respondents were directed to pay him the said sum of Rs. 5943.19p alongwith compensation of equal amount. The order was carried in appeal by the respondents. However, by order dated 2.1.1992, the appellate authority under the Act dismissed the appeal and confirmed the order impugned.
Perusal of the petition reveals that the present proceeding is the third in a series of litigation between the same parties. The previous two and the present one have been initiated by the petitioner claiming arrear dues and notional fixation of pay for service rendered by him under the Board of Trustees as plumbing mistry for the period 9.6.1958 till 1979, when he was promoted to the post of licensed plumber.
It was in 2002 that the first writ petition was filed by him. It was disposed of by this Court by an order dated 27.3.2002 which reads as follows :
"No affidavit-in-opposition has been filed in spite of direction being given and none appears to oppose this application either by appearing. Having heard Mr. Maitra, learned senior counsel I dispose of this application directing the Chairman of the Board of Trustees for the Port of Calcutta to treat the writ petition as representation and to consider and hear the same in accordance with law and he shall give a personal hearing to the petitioner and pass speaking order in the event his prayer is refused. In the event his prayer is allowed then steps must be taken forthwith so that the petitioner is paid his legitimate dues. The aforesaid exercise shall be completed within eight weeks from the date of communication of this order. A copy of the writ petition along with copy of this order shall be communicated to the said authority to enable him to carry out this order."
In compliance with the said order, the respondent no.2 considered the claim of the petitioner and rejected it by an order dated 20.6.2002. It reads as follows :
"***** As per records produced before me it appears that Shri Nirmal Kr. Das Gupta was engaged as Licenced Plumber against leave vacancy in the year 1958 and thereafter he worked in different posts like Plumbing Khalasi, Wayman etc. against temporary vacancies. He was absorbed in CPT in December, 1963 in the post of Plumbing Mistry. It was also observed that he received grade increment as admissible to other CPT employees. As such there was no deviation in the matter of fixation of his pay during his service period. On consideration of the above facts I find thee was no discrepancy in the pay of Shri N. Das Gupta received during his service period. Accordingly, his prayer for payment of arrear dues with notional pay fixation is rejected."
The aforesaid order of the respondent no.2 formed the subject matter of challenge in the second writ petition filed by the petitioner. While praying for quashing of the said order, the petitioner had prayed for a direction on the respondents to compute his salaries and emoluments and to effect payment thereof keeping in mind the order passed by the competent authority under the Act.
The writ petition was disposed of by this Court on 16.7.2008 holding, inter alia, as follows :
"***** Learned Counsel for the writ petitioner, however, inviting attention of the Court to the impugned order passed by the Chairman, Kolkata Port Trust, as referred to earlier, submits that it was not just on the part of the respondent authority to hold that the writ petitioner was given substantive posting as a plumbing mistry only in the year 1963. In order to strengthen his contention, learned Counsel for the writ petitioner has invited attention of the Court to a document i.e. a seniority list of plumbing mistry attached to the dock units being annexure P2 at page 12. Such document certainly indicates that the present petitioner whose name appears as against sl. No.20 of the said list was first appointed as plumbing mistry on 9.6.1958. This certainly goes a long way to substantiate the claim of the writ petitioner. The impugned order reflects that vital piece of document was not taken into consideration by the respondent authority nor the same was dealt with.
In such circumstances, I find it difficult to accept the order which is under challenge in this writ application. The present writ application being W.P. No.1622 of 2002 be, accordingly, allowed. The order impugned being the order dated June 22, 2002 passed by the Chairman, Kolkata Port Trust, is set aside and the respondent authority is hereby directed to consider the grievances of the writ petitioner afresh in the light of the observation made herein before and pass a reasoned order in respect of the same within a period of twelve weeks from the date of communication of this order. Such consideration may be made after giving an opportunity of hearing to the writ petitioner who in support of his contention may also produce necessary relevant documents. If the matter is decided in favour of the writ petitioner by such authority, all his legitimate dues may also be, accordingly, settled within the aforesaid period."
It was in compliance with this order of Court that the respondent no.2 passed the impugned order.
It would be worthwhile to take note of the reason given by the respondent no.2 while rejecting the petitioner's claim founded on the purported seniority list. It reads :
"In view of the above as well as in the light of the direction made by the Hon'ble Court by order dated 16.07.2008 as specified above, I have gone through the seniority list of the Plumbing Mistry (annexure P2 enclosed in the writ petition at page 12), as produced by the petitioner and have considered the matter carefully. It is observed from the seniority list, produced by the petitioner during hearing and referred to in the order under reference of the Hon'ble Court, that it is an unsigned and incomplete document. During hearing KoPT officials stated that it is not even a copy of any original office document of KoPT and also clarified that neither any such list nor any file of papers bearing the number as shown in the said seniority list exists in the records of KoPT. In other words, the records of KoPT do not support the existence of the said document as produced by the petitioner. Thus, in my view, the said seniority list is not an authentic document."
It further appears that in addition to the above, the respondent no.2 had taken note of :
" i) Service sheet in respect of Sri Nirmal Kumar Dasgupta.
ii) Staff Recommendation form bearing No.E/73/208 dated 13.07.1958 for temporary appointment of Sri Dasgupta to the post of Plumbing Mistry on leave vacancy.
iii) Chief Engineer's office letter No.641/B/Pt./735 dated 25.05.1978 detailing the period of engagement of Sri Dasgupta on leave vacancy against different posts with effect from 03.08.1958 to 13.01.1971.
iv) Executive Engineer, KPD office letter No.E/82A/851 dated 19.06.1959 showing that Sri Nirmal Kumar Dasgupta was holding the post of Wayman.
v) Application of Sri Nirmal Kumar Dasgupta dated 04.11.1959 indicating he was working at that point of time as Plumbing Khalasi.
vi) Staff Recommendation form bearing No.273/F/2763 dated 12.03.1964 showing adjustment of Sri Dasgupta against a temporary post of Plumbing Mistry."
to hold that the petitioner was engaged as plumbing mistry on temporary basis against leave vacancy on and from 9.6.1958 and thereafter, he worked in different posts like plumbing khalasi, wayman etc. against leave vacancy at different periods on temporary basis as detailed therein and, therefore, his claim for payment of arrear dues with notional pay fixation is untenable.
I have heard learned Counsel for the parties and considered the decisions cited by them.
Before entering into the merits of the controversy, I consider it necessary to place on record that in course of hearing, by an order dated 23.6.2009, I had called for records of the petitioner's second writ petition. It appears therefrom that the Court by order dated 24.8.2005 had granted the petitioner liberty to file a supplementary affidavit annexing thereto relevant documents on which he wished to rely. The respondents were granted leave to file affidavit-in-opposition to the writ petition as well as the supplementary affidavit within four weeks and the petition was directed to appear after six weeks for hearing.
Availing of the leave granted by order dated 24.8.2005, the petitioner on 13.9.2005 had affirmed a supplementary affidavit. In the said supplementary affidavit a purported seniority list of incumbents working as plumbing mistry attached to the dock units was annexed, wherein the petitioner's name appeared at sl. No.20. His designation was shown as plumbing mistry with effect from 9.6.1958 as the date of original/first appointment.
Though the respondents had filed an affidavit-in-opposition on 15.7.2008 dealing with the petition, they chose not to deal with the contents of the supplementary affidavit. As such the contents thereof stood un-controverted. The purported seniority list was allowed to be tendered as documentary evidence through the supplementary affidavit without any objection.
In such circumstances and particularly having regard to the observations contained in the order dated 16.7.2008, question is whether the respondent no.2 was justified in rejecting the claim of the petitioner, inter alia, on the ground that the said seniority list is not an authentic document.
Mr. Dutta, learned Counsel appearing for the respondents, contended that no finding was given by Court in the order dated 16.7.2008 regarding legal entitlement of the petitioner and, therefore, the respondent no.2 was free to consider his claim in accordance with law with reference to the facts and circumstances of the case. Since the seniority list was not an authentic document, according to him, the order of the respondent no.2 rejecting the claim of the petitioner based on such finding is unexceptionable. Reliance in this connection was placed on the decision of the Apex Court in A.P. SRTC & ors. vs. G. Srinivas Reddy & ors., reported in (2006) 3 SCC 674.
I do not agree. For the reasons to be discussed hereafter, I hold the impugned order to be indefensible.
The decision in G. Srinivas (supra), in my considered view, instead of aiding the respondents supports the contention of Mr. Bose that once the writ petition was disposed of by the Court with direction on the respondent no.2 to consider the petitioner's claim in the light of the observations contained therein, he had no other option but to proceed on the premise that the said seniority list is a valid document and on the specious ground that the same was not an authentic document, it could not have been brushed aside.
It is necessary at this stage to read paragraphs 14 to 20 of the decision in G. Srinivas Reddy (supra) wherein the Apex Court ruled as follows :
"14. We may, in this context, examine the significance and meaning of a direction given by the court to 'consider' a case. When a court directs an authority to 'consider', it requires the authority to apply its mind to the facts and circumstances of the case and then take a decision thereon in accordance with law. There is a reason for a large number of writ petitions filed in the High Courts being disposed of with a direction to 'consider' the claim/case/representation of the petitioner(s) in the writ petitions.
15. Where an order or action of the State or an authority is found to be illegal, or in contravention of the prescribed procedure, or in breach of the rules of natural justice, or arbitrary/unreasonable/irrational, or prompted by mala fides or extraneous consideration, or the result of abuse of power, such action is open to judicial review. When the High Court finds that the order or action requires interference and exercises the power of judicial review, thereby resulting in the action/order of the State or authority being quashed, the High Court will not proceed to substitute its own decision in the matter, as that will amount to exercising appellate power, but require the authority to 'consider' and decide the matter again. The power of judicial review under Article 226 concentrates and lays emphasis on the decision-making process, rather than the decision itself.
16. The High Courts also direct the authorities to 'consider', in a different category of cases. Where an authority vested with the power to decide a matter, fails to do so in spite of a request, the person aggrieved approaches the High Court, which in exercise of the power of judicial review, directs the authority to 'consider' and decide the matter. In such cases, while exercising the power of judicial review, the High Court directs 'consideration' without examining the facts or the legal question(s) involved and without recording any findings on the issues. The High Court may also direct the authority to 'consider' afresh, where the authority had decided a matter without considering the relevant facts and circumstances, or by taking extraneous or irrelevant matters into consideration. In such cases also, the High Court may not examine the validity or tenability of the claim on merits, but require the authority to do so.
17. Where the High Court finds the decision-making process erroneous and records its findings as to the manner in which the decision should be made, and then directs the authority to 'consider' the matter, the authority will have to consider and decide the matter in the light of its findings or observations of the court. But where the High Court without recording any findings, or without expressing any view, merely directs the authority to 'consider' the matter, the authority will have to consider the matter in accordance with law, with reference to the facts and circumstances of the case, its power not being circumscribed by any observations or findings of the court.
18. We may also note that sometimes the High Courts dispose of the matter merely with a direction to the authority to 'consider' the matter without examining the issue raised even though the facts necessary to decide the correctness of the order are available. Neither pressure of work nor the complexity of the issue can be a reason for the court to avoid deciding the issue which requires to be decided, and disposing of the matter with a direction to 'consider' the matter afresh. Be that as it may.
19. There are also several instances where unscrupulous petitioners with the connivance of 'pliable' authorities have misused the direction "to consider"
issued by court. We may illustrate by an example. A claim, which is stale, time-barred or untenable, is put forth in the form of a representation. On the ground that the authority has not disposed of the representation within a reasonable time, the person making the representation approaches the High Court with an innocuous prayer to direct the authority to 'consider' and dispose of the representation. When the court disposes of the petition with a direction to 'consider', the authority grants the relief, taking shelter under the order of the court directing him to 'consider' the grant of relief. Instances are also not wanting where authorities, unfamiliar with the process and practice relating to writ proceedings and the nuances of judicial review, have interpreted or understood the order 'to consider' as directing grant of relief sought in the representation and consequently granting reliefs which otherwise could not have been granted. Thus, action of the authorities granting undeserving relief, in pursuance of orders to 'consider', may be on account of ignorance, or on account of bona fide belief that they should grant relief in view of the court's direction to 'consider' the claim, or on account of collusion/connivance between the person making the representation and the authority deciding it. Representations of daily-wagers seeking regularisation/absorption into regular service is a species of cases, where there has been a large-scale misuse of the orders 'to consider'.
20. Therefore, while disposing of the writ petitions with a direction to 'consider', there is a need for the High Court to make the direction clear and specific. The order should clearly indicate whether the High Court is recording any finding about the entitlement of the petitioner to the relief or whether the petition is being disposed of without examining the claim on merits. The court should also normally fix a time-frame for consideration and decision. If no time-frame is fixed and if the authority does not decide the matter, the direction of the court becomes virtually infructuous as the aggrieved petitioner will have to come again to court with a fresh writ petition or file an application for fixing time for deciding the matter." The dicta in paragraphs 15 and 17 supra are material for a decision on this petition.
The respondents ought to have, as a ground of attack, contend before the Court that the seniority list relied on by the petitioner is not an authentic document and, therefore, not worthy of credence. If the contention had been raised, the Court would have been obliged to decide the point either way. Since the respondents did not rebut the seniority list by stating on oath that it was not an authentic document, the Court accepted the document as authentic leading to recording of a finding, in unambiguous terms, that the same "certainly goes a long way to substantiate the claim of the writ petitioner." This was followed by a further finding that in passing the order impugned, the respondent no.2 had not considered such "vital piece of document". Consequently, a direction was given to the respondent no.2 to consider the petitioner's claim in the light of the observations contained in the order. I wonder what more was required to be declared by the Court. No appeal having been preferred by the respondents against such order, the same attained finality. The respondent no.2, accordingly, was bound not only by the direction but also by the findings on fact returned by the Court. Had the respondents contested the seniority list by raising appropriate defence at the appropriate time, the finding could have well been otherwise. By failing to consider the petitioner's claim treating the said list as authentic, the respondent no.2 erred in the process of decision making. In fact, he sat in appeal on the decision of the Court and held that the same is not an authentic document. This he was not entitled to do.
It is true that in terms of the order dated 16.7.2008, discretion of the respondent no.2 to reject the petitioner's claim was not curtailed. However, the respondent no.2, in his discretion, could have rejected the petitioner's claim if the seniority list did not support his claim. But to deny him relief on the ground assigned i.e. it is not an authentic document amounts to rendering a document useless otherwise found to be admissible in evidence and reliable by the Court.
I have also considered the contention raised by Mr. Dutta while referring to the first annexure to the affidavit-in-opposition of the respondents being the appointment letter as well as the documents, particulars whereof have been mentioned in the order impugned to hold that the petitioner had initially been appointed as plumbing mistry on a leave vacancy and that his appointment was not a regular one.
I am afraid, the contention is without merit. The document annexed to the affidavit-in-opposition and the other records referred to in the impugned order ought to have been made part of the affidavit-in-opposition of the respondents to the second writ petition of the petitioner to enable the Court give a proper decision for the purpose of determination of the rival claims. The bar of Explanation IV to Section 11, Civil Procedure Code is clearly attracted in the present case.
In Forward Construction Co. v. Prabhat Mandal (Regd.), reported in (1986) 1 SCC 100, it was ruled that :
"20. So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force."
It is noted that the respondents did not file affidavit-in-opposition to the first writ petition filed by the petitioner. Despite having due opportunity to file affidavit-in-opposition to the second writ petition as well as the supplementary affidavit filed in connection therewith, they did not avail the opportunity to bring on record the documents on which reliance is now being placed to deny the petitioner's claim. I hold that they are precluded in law from relying on documents which did not form part of the records of the earlier proceedings.
Accordingly, the impugned order stands quashed.
Since the respondents repeatedly have failed to consider the petitioner's claim in the proper perspective, on the authority of the decision in Comptroller and Auditor General of India & ano. vs. K.S. Jagannathan & ano., reported in (1986) 2 SCC 679, I deem it appropriate to pass order which the respondent no.2 ought to have passed had he properly and lawfully exercised his discretion. Accordingly, there shall be an order in terms of prayer (b) of the petition. This exercise shall be completed as early as possible but not later than six weeks from date of receipt of a copy of this judgment and order.
The writ petition stands allowed, with costs assessed at Rs.3,400/-to be paid to the petitioner within a month.
Urgent photostat certified copy of this judgment and order shall be furnished to the applicant as early as possible but positively within four days from putting in requisites therefor.
(DIPANKAR DATTA, J.) Later :
Prayer for stay of operation of the order has been made by learned Counsel for the respondents. This Court finds no reason to grant the prayer. It stands refused.
(DIPANKAR DATTA, J.)