Calcutta High Court
Manick Chandra Sardar And Ors. vs State Of West Bengal And Ors. on 23 November, 1989
Equivalent citations: (1991)2CALLT45(HC)
JUDGMENT Khwaja Mohammad Yusuf, J.
1. The petitioners were appointed in different capacities on different dates on fix consolidated pay under the respondents in the Sandeshkhali-I Development Block. The petitioner No. 1, a Schedule Tribe, was appointed night-guard in 1980 at a consolidated pay of Rs. 250/- per month; the petitioner No. 2 was appointed an instructor in 1980 at a consolidated pay of Rs. 350/- per month and the petitioner No. 3 was appointed as a demonstrator at a consolidated pay of Rs. 300/- per month. There is no break in services of any of the petitioners since 22nd April, 1981 and on this count they claim to have acquired the status of permanent employees in accordance with the Memorandum No. 6059-F dated 25th June, 1979 issued by the Finance Department (Audit Branch), Government of West Bengal. It is their further case that they rendered services till the month of June 1985 when suddenly the petitioner No. 2 by Memo dated 9th July, 1985 was asked to hand over the charge of the Training-cum-Production Centre at Nazat immediately to the E.O. (I) of the Block on the allegation that the said petitioner was not available at the Centre from 12th June, 1985. It is the case of the petitioners that they attended the office till 12th July, 1985 by putting signatures in the Attendance Register. It was further stated that by another Memo dated 9th July, 1985 to the petitioner No. 2 was informed that the Seventh Session of the T.C.P.C. would commence from 1st August, 1985 and if he was willing to work from 1st August, 1985 he would give his consent by 17th July, 1985. The grievance of the writ petitioners is that they are rendering services in their respective post since 22nd April, 1981 without any break and their services cannot be terminated or they cannot be removed by virtue of the notification dated 25th June, 1979. It is alleged that the only intention of the Block Development Officer, Sandeshkhali-I, is to put a break of services so that the petitioner could not get advantage of permanent status which is against the very principle of equity and natural justice. The Memo dated 9th July, 1989 is alleged to be a motivatived, malafide and colourable exercise of power and the petitioners prayed for quashing the same.
2. The respondent Nos. 1 to 5 defended the case by filing an Affidavit-in-Opposition. It is stated by them that the Training-cum-Production Centre at Nazat is designed to impart training to the unemployed tribal youth for self-employment and it is not a Production Centre. The scheme is of purely temporary nature and the night-guard, instructor and administrator were given ad hoc appointment on the basis of consolidated honoraria. There were six sessions of the training, the first session was started from 20th March, 1980 to 19th September, 1980, the second from 1st October, 1980 to 31st March, 1981, the third from 1st June, 1981 to 31st May, 1982, the fourth from 1'st June, 1982 to 31st May, 1983, the fifth from 1st June, 1983 to 31st May, 1984 and the sixth from 1st June, 1984 to 11th June, 1985. The seventh session which was to commence on 12th June, 1985 could not start due to insufficient number of trainees. On 9th July, 1985 a decision was taken to start the seventh' session from 1st August, 1985 and anticipating sufficient number of participants in the training the Memo dated 9th July, 1985 was issued to Sanat Kumar Pal but till date the commencement of the seventh session could not take place and it is closed. It is further stated that after the closer of the Centre from 12th June, 1985 the petitioner did not, in fact, attend office nor handed over the charge of the Centre and the relevant papers and file including Attendance Register in spite of the receipt of the Memo No. 875 dated 9th July, 1985.
3. In the Affidavit-in-Reply the petitioners have brought to the notice of the Court two more Notifications, one dated 3rd August, 1979 and another dated 20th August, 1980 both issued by the Labour Department, Government of West Bengal, and pointed out two certain clauses of those Notifications in support of the contentions. Apart from the above, other facts in the Affidavit are virtually reiteration of the statement already made in the writ application.
4. Mr. J. Islam, the learned Advocate appearing for the petitioners, in a strenous argument submitted that the petitioners were in continuous service under the respondents since 22nd April, 1981 till 25th June, 1985 without any break of service and as such by Virtue of the various clauses of the Notification dated 25th June, 1979 issued by the Finance Department (Audit Branch) and those issued on 3rd August, 1979 and 20th August, 1980 by the Labour Department they are entitled to become permanent employees of the Government of West Bengal. In support of his contention he has cited a number of decisions, namely, the case of of (1) N. N. Singh and Ors. v. General Manager, Chittaranjan Locomotive Works and Ors. reported in 77 CWN 334 ; (2) Ramana Dayaram Shetti v. the International Air Port Authority and Ors. ; (3) Randhir Singh v. Union of India and Ors. ; (4) Sur-endar Singh and Anr. v. the Engineer-in-Chief, C.P.W.D. and Ors. ; (5) H. D. Singh v. Reserve Bank of India and Ors. ; (6) Catering Cleaners of Southern Railway v. Union of India and Anr. ; (7) Daily Rated Casual Labour, P. and T. Department v. Union of India and Ors. ; and (8) Commissioner of Police, Bombay v. Gordhan-das Bhanji .
5. The matter was heard in part on 22nd August, 1989 and Mr. Basu Chowdhury, the learned Advocate appearing for the State was directed to produce the relevant record on the next date i.e. 29th August, 1989. But on 29th August, 1989 when the matter was called on no one was present on behalf of the State nor any record was produced and the hearing was concluded. It has frequently been seen and must be noted that the records are rarely produced in the cases by the State Advocates and they generally non-co-operate in helping the Court. Now the position is that this Court will have to rely upon the averments made in the writ application and the two Affidavits of the respective parties.
6. It appears that the petitioners were in continuous service from 1st June, 1981 to 11th June, 1985 though the claim of the writ petitioners is that they were in continuous service from 22nd April, 1981 to 25th June, 1985. Anyhow the continuous service covers four years and according to Clause 2(a) of the Notification dated 25th June, 1979 issued by the Finance Department all posts created on temporary basis and continuing for more than three years on that issue of the Memorandum shall be converted into permanent posts with immediate effect. Similarly posts created on a temporary basis shall be converted into permanent posts after they continued for more than three years. Clause 2(d) of the said Memorandum says : "Posts created on ad hoc basis or for specific jobs for a specified period shall not come under the purview of this Memorandum". A Memorandum dated 3rd August, 1979 issued by the Labour Department on the absorption of casual workers contains, inter alia, Clause 3 which runs as follows Casual and such other categories of workers who have been engaged in a perennial type of work for continuous period of more than three years may be absorbed in the regular establishments on temporary basis in existing vacancies. If suitable vacancies are not available necessary steps may be taken by the respective authorities to create the requisite number of posts for the purpose of absorption of such categories of workers in consultation with the Finance Department". The said Memorandum of 3rd August, 1979 was further amended and/or modified by another Memorandum dated 20th August, 1980 which says that the absorption of casual workers in regular service is subject to their satisfying the prescribed norms, and Clause (iii) says that continuous period of more than three years as referred to in Clause (3) of the G.O. under reference shall mean 240 days of work in each completed calendar year of service for three consecutive years. The Affidavit-in-Opposition is most vocal on the point that the appointments of the petitioners were on ad hoc basis on consolidated honorariums and their appointments were renewed on ad hoc basis from time to time with the commencement of the various sessions of the Training-cum-Production Centre. The last ad hoc appointment for the sixth session was till 11th June, 1985 and as sufficient trainees were not" available for the seventh session it could not be started on the ad hoc appointment basis and automatically ceased. The State heavily relied upon Clause (d) of the Memorandum dated 25th June, 1979 which specifically points out that the post created on ad hoc basis or for specified job for a specified period shall not come under the purview of this Memorandum. The State's contention is as appears from its Affidavit that the posts were created on ad hoc basis for specified period from time to time and as such the benefit of this particular G.O. cannot be claimed by the petitioners.
7. Mr. Islam cited a number of decisions to bring home his point that as the petitioners served the respondents in different capacities continuously for more than three years so by virtue of the various Memoranda issued by the State Government, they are entitled to be given status of permanent employees ; the respondents are terminating their services under colourable exercise of power and it is for the Court to adjudicate whether such exercise of power on the part of the respondents are justified. In the case of N. N. Singh and Ors. v. General Manager, Chittaranjan Locomotive Works (supra) it has been laid down that if it was obvious or apparent on the facts evident, admitted or established that the orders of the authorities though otherwise legal and valid have not been issued for the professsed purposes or in public or administrative interest or in the exigencies of service but they are only passed for other purposes in the garb of ostensible purposes, the Court of law in such cases has thought it fit and competent for itself to prove and scrutinise such orders to see if they have been passed for other purposes under colourable exercise of powers or if such orders are accordingly malafide. The said decision further lays down that the administrative orders, not otherwise justiciable, come under Court's scrutiny if there are allegations of malafides or colourable exercise of powers behind such orders, even though they are free from violation of any constitutional or statutory provisions. Such orders again are liable to be interfered with if the allegations are established or evident on material's on record in absence of any rebuttal evidence. This case helps the petitioners on the point of principle. The case of International Airport Authority (supra) is not on the point and as such of no help to the petitioners. The decision in the case of H. D. Singh v. Reserve Bank of India (supra) relating to the termination of service of a daily wage labour (Tikka Mazdoor) by the Reserve Bank of India sometime after his appointment though the terms and condition's of appointment contained no such stipulation or action was based on confidential circular and was struck down by the Supreme Court as unfair and by way of victimisation. The name of the Tikka Mazdoor was struck off since he has concealed his educational qualification by passing the Matriculation Examination and his service was terminated without any notice and any compensation from the Bank. This case does help the petitioners on the point of employment. Their Lordships of the Supreme Court were of the opinion that the Reserve Bank who should set a model for other employers being, a prestigious institution behaved towards its employee in a dubious manner by denying him his service because he had become more qualified without having regard to the grave unemployment problem increasing in the number of educated unemployed. The decisions and (supra) are based on the well-known doctrine of "equal pay for equal work" and I do not see how the decisions help the petitioners who had no such problem. The decision in the case of Catering Cleaners of Southern Railway v. Union of India (supra) relates to Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970. Here the catering cleaners working on contract system in the catering establishments in various Railway Junctions of the Southern Railway and in the pantry cars of long distance trains running under the control of the Southern Railway filed writ petitions before the Supreme Court seeking abolition of the contract system under which they were employed to do clean ring work in the catering establishments and the pantry cars, and for their absorption as regular employees of the principal employer, namely, the Southern Railway. Their Lordships on the facts of the case and on the Report of the Parliamentary Committee of Petitions on the question of employing catering cleaners on contract labour system were satisfied that the work is of a perennial nature and is done through regular Workmen in most Railways and that the work required the employment of sufficient number of whole-time workmen and all the requirements of Section 10(2) of the Act were satisfactorily accounted for. In the circumstances instead of straightway issuing a mandamus directing the Central Government to abolish the contract labour system, Their Lordships directed the Central Government to take appropriate action within a specified period in accordance to the Court's direction. The case of Daily Rated Casual Labour under P. and T. Department V. Union of India (supra) goes to the rescue of the petitioners when the Supreme Court directed the authorities concerned i.e. Posts & Telegraphs Department to prepare a scheme on a rational basis for participating as far as possible the casual labourers who have been continuously working for more than one year in the Department. In the case of the Commissioner of Police, Bombay v. Gordhandas Bhanji (Supra) the Supreme Court held that public orders, publicly made, in exercise of a statutory authority cannot be construed in the right of explanations subsequently given by the officer making the order of what he meant, or what was in his mind or what he intended to do. This case helps the petitioners to bring home the point of different stand taken by the respondent No. 4 With regard to the two Memos Nos. 875 and 875(3) both dated 9th July, 1985 and thereafter a new case was made out in the Affidavit-in-Opposition as to why the last mentioned memos could not be given effect to. Of course, this is an exercise in futility and a lame exercise on the past of the respondents. This decision is of importance in this matter.
8. Neither the petitioners nor the respondents have placed before the Court the appointment letters of the petitioners upon which a major dispute has been raised by the respondents. I think this is the point where the shoe pinches to both the petitioners and the respondents. I fully endorse the views laid down in the decision reported in 77 CWN 334 (supra) and follow the principle set out in the decisions (supra). Keeping in view the above two Supreme Court decisions the petitioners appear to have a good case for success. One thing is crystal clear that the petitioners were in continuous service from third to sixth sessions of the Training-cum-Production Centre at Nazat and the fact is borne out from the Affidavit-in-Opposition itself. This means that the petitioners were in the service of the State Government from 1st June, 1981 to 11th June, 1985 without a break of over three years and the tactic that was adopted by the respondents in giving ad hoc appointments virtually appears to be defeating the scope of the petitioners claiming continuous service for three years and the protection provided under Memorandum No. 6059-F dated 25th June, 1979. The petitioners were paid some amount per month whether as pay of salary or honorarium and this continuous payment of remuneration to the petitioners in one shape or the other goes to establish that they were in continuous service and employed by the State Government, be that for a particular scheme. Now if after serving for over three years under a particular scheme, the scheme has been abolished or discontinued for any reason whatsoever this is not the fault of the petitioners and they can legitimately claim protection of the status of permanency from temporary basis and by virtue of the aforesaid Memorandum of 25th June, 1979 they are entitled to be converted as permanent hands in any department of the Government and the feeble plea of the closer of the scheme will be no protection to the State to discharge the petitioners from service. Also the Memos of 3rd August, 1979 and 20th August, 1980 issued by the Labour Department go a long way to support the contention of the petitioners. It will be a criminal act on the part of the State respondent to deny these three young persons their livelihood after keeping them in service in the garb of ad hoc appointments and after the closer of the sixth session of the training throw them into wilderness. A welfare state must not behave like a private ruthless employer and must look after the welfare of the citizens. The manoeuvring done in this particular case by the State respondents show that the sole object was not to provide permanent status to the petitioners. Now a big question arises, three young men who were in continuous service of the State Government for about four years are suddenly thrown out from the service and at the same time crossed the age bar. Where lies their remedy ? Will they be able to get a good job under the Government or any other good establishment when they have already given to the Government of West Bengal best part of their lives and that, too, with satisfactory performance. From the Affidavit of the State no aspersion of any kind is made on their working and performance.
9. In the circumstances aforesaid and in the light of the discussion made hereinbefore, I direct the respondents to consider afresh the case of the petitioners strictly in keeping with this judgment. The petitioners were in the service of the State Government for more than three continuous years though on ad hoc basis and on honorariums-(which was mischievous manoeuvring of the respondents) and they should be provided permanent employment under the State of West Bengal in suitable vacancies, in accordance to the petitioners' ability, which will henceforth occur at the first available opportunity. I make it clear that the age bar shall not stand in the way of making any such appointment if otherwise the petitioners are suitable and there will be no break of service but the petitioners shall not be entitled to claim any salary or pay for the period they were not working. I further make it clear that the Secretary, Schedule Castes and Tribes Welfare Department, Government of West Bengal, respondent No. 1, is directed to implement this judgment within three months from the date of the presentation of the certified copy of the judgment to the respondent No. 1. Xerox copies thereof be also supplied to other respondents. I make it clear that the Secretary must keep the time schedule and must not sit upon the judgment to interpret it. The Finance Secretary, Government of West Bengal, is also directed to implement the directions given in this judgment.
The writ petition is allowed with the above directions. There will be no order as to costs.
The urgent certified copy if applied for be given expeditiously.