Subodh Kumar Das v. Sub Divisional Officer — 1987 DIGILAW 13 (CAL)

JUDGMENT 1. IN this writ petition the petitioner, a Government Tahsildar, has challenged the order of termination of his service. 2. THE petitioner was selected to be appointed as Tahsildar on January 5, 1961 (Annexure 'a') and he joined the service on January 13, 1961 (Annexure 'b') after executing an agreement as directed. Though the petitioner performed his duties and discharged his function faithfully and efficiently, he was suspended from service by an order dated December 27,1977 issued by the respondent No. 3 the Additional district Magistrate, 24 Parganas. 3. THE petitioner at once made a representation against the said order of suspension, but by an order dated December 7, 1978 of the Office of the respondent No. 2, the Junior Land Reforms Officer, his services were terminated (Annexure 'g'. 4. ACCORDING to the petitioner, no departmental enquiry or disciplinary proceeding preceded the termination of his services, no charge sheet was framed against him and no reasonable opportunity was also given to him of being heard. The respondents also failed to assign any reason for such termination. Having failed to get any redress from the departmental authorities, the petitioner has come up before this Court under Article 226 of the constitution. 5. ACCORDING to the respondents in their affidavit-in-opposition. the petitioner failed to discharge his duties faithfully in accordance with the terms and conditions of the agreement. He was charged with manipulation of forged certified copy of R. S. khatian No. 27 and another khatian and also in other matters. The said charges were enquired into by the Sub-Divisional land Reforms Officer with due notice to the petitioner. The petitioner was also given reasonable opportunity of being heard. On such enquiry the sub Divisional Land Reforms Officer was satisfied prima facie that there has been some manipulation and forgery as alleged and he recommended the petitioner's suspension to the Additional District Magistrate (L. R. 24 parganas. The petitioner was, accordingly, suspended with effect from January 1, 1978 and there was no further renewal of his agreement of service. 6. THE petitioner in his affidavit-in-reply has challenged the correctness of the averments made in the affidavit-in-opposition. Indisputably, the petitioner joined as Tahsildar on January 5, 1961 after executing an agreement in the prescribed From as directed. Annexure 'b' to the writ petition is a specimen Form of the agreement which the petitioner had executed. 6. THE petitioner in his affidavit-in-reply has challenged the correctness of the averments made in the affidavit-in-opposition. Indisputably, the petitioner joined as Tahsildar on January 5, 1961 after executing an agreement in the prescribed From as directed. Annexure 'b' to the writ petition is a specimen Form of the agreement which the petitioner had executed. It is not in dispute that the agreement was being renewed from year to year and the last agreement was valid upto July 1, 1977 Since there were some complaints against the petitioner, which were being enquired into, there was no further renewal of agreement after July 1, 1977. Following the enquiry the petitioner was suspended with effect from January 1, 1978 (Annexure 'e') and ultimately by a letter dated December 1, 1978 the petitioner was informed that his agreement will not be renewed beyond August 31, 1978 (Annexure 'g'. 7. REFERRING to the different clauses of the agreement (Annexure 'b')it was submitted by Mr. Dutt, the learned Advocate representing the petitioner, that the post held by the petitioner being a civil post, there should have been a proper enquiry against him under Article 311 of the Constitution before his services could be terminated. 8. THE agreement shows that the petitioner was employed on a temporary basis as a Tahsildar and it is provided by clause - of the agreement that either party will have a right to terminate the agreement on giving the other party one calendar month's notice in writing. Under the subsequent clauses some benefits available to the other Government employees, were extended to the petitioner including leave, travelling allowance etc. Under the subsequent clauses some benefits available to the other Government employees, were extended to the petitioner including leave, travelling allowance etc. It is further provided that the petitioner would be governed by the Government Servants' conduct Rules as well as by the Subordinate Services Discipline and Appeal rules subject, however, to the provisions of clause 4 (a), which provides that the Government shall have the right and be entitled to call upon the employee at its absolute discretion to refrain from doing any work other than those specified in the agreement, Clause 11 of the agreement is important and it provides that the government shall have the right and be entitled to discharge the employee to terminate his agreement without previous notice if the employee commits, any breach of any of the terms and conditions contained in the agreement or if he is found to be otherwise negligent or inefficient or his work is found to be otherwise unsatisfactory and that the decision of the Government in that respect shall be final and binding. 9. IT was contended by Mr. Dutt, that the post of a Tahsildar is a civil post under the State and in appropriate cases he is entitled to protection under Article 311 (2) of the Constitution of India. 10. IN support of this contention he referred me to the decision of this court in Md Mofizuddin Molla v. Junior Land Reforms Officer. 1981 (1) C. L. J. 178. There, a learned single Judge of this Court took the view that in spite of the contractual clauses, Article 311 (2) of the Constitution would come into play and operation, when the removal from service is on charges of misconduct and when such steps or actions are taken during the pendency of the subsistence of the agreement and not when the agreement in question has an automatic or due lapse. In the instant case, the last agreement executed between the parties was valid upto July 1, 1977. It was not renewed thereafter. Certain enquiries were made in the meantime to which the petitioner was not a party and he was put under suspension with effect from January 1. 1978 and thereafter it was only on December 7, 1978 that the petitioner was informed that the agreement would not be renewed beyond August 31, 1978. It was not renewed thereafter. Certain enquiries were made in the meantime to which the petitioner was not a party and he was put under suspension with effect from January 1. 1978 and thereafter it was only on December 7, 1978 that the petitioner was informed that the agreement would not be renewed beyond August 31, 1978. Thus, retrospectively though, the agreement stood renewed upto August 31, 1978 though no formal agreement seems to have been brought into existence. 11. FROM the records producedby Mrs. Gupta, the learned Advocate representing the respondents, it appears that the petitioner on May 5, 1976 collected rents from a person on the basis of the certified copy of a khatian which ultimately was found to be spurious. The petitioner was taken to task for having collected rents on the basis of the said certified copy without consulting the relevant records maintained in the office of the Junior Land reforms Officer. On July 12, 1977 an explanation was called for from the petitioner. The petitioner in his explanation dated July 15, 1977 admitted to have collected rent on the basis of a certified copy of khatian No. 6/1 produced by the alleged tenant Khoda Bux Molla. 12. THIS explanation of the petitioner was not found to be satisfactory since the enquiry revealed that the said khatian No 6/1 had no existence whatsoever. The matter was, accordingly referred to the Sub-Divisional Land reforms Officer with the report of the Junior Land Reforms Officer. The Sub-Divisional Land Reforms Officer on December 15, 1977 recorded that the petitioner without verifying anything and without any order from the Junior Land Reforms Officer had arbitrarily issued the rent receipt in an irregular-way and that it had further transpired from the enquiry that the petitioner had done it with ill-motive and consequently his statement dated July 15, 1977 could not be accepted. In that connection he directed that there should be a proper enquiry by the Settlement Office regarding the non-existence of R. S. khatian No. 6/1 of Manza Panapukuria. He also recommended that the agreement with the petitioner need not be renewed. 13. THE petitioner was thereafter suspended with effect from January 1, 1978 and it was only on March 14, 1978 that it was finally established that r. S. khatian No. 6/1 had no existence. He also recommended that the agreement with the petitioner need not be renewed. 13. THE petitioner was thereafter suspended with effect from January 1, 1978 and it was only on March 14, 1978 that it was finally established that r. S. khatian No. 6/1 had no existence. Subsequently by the order dated july 29, 1978 it was directed that the petitioner having been allowed to work beyond July 1, 1978 the agreement with him should be deemed to have been renewed with effect from September 1, 1977. 14. IT will thus appear that whatever action the Sub Divisional Land reforms Officer took against the petitioner was during the continuance of the agreement, the agreement covering that period having been renewed retrospectively. So far the petitioner is concerned, besides obtaining an explanation from him, which again was not accepted, he was not made a party to the entire ritual that went on. This was in spite of the fact that he under the agreement was governed by the Government Servants' Conduct Rules and west Bengal Services (Classification, Control and Appeal) Rules, 1971: It seems that action was taken against the petitioner under clause 11 of the Agreement which gives absolute discretion to the Government to discharge the employee or terminate the agreement without any previous notice if the employee commits any breach of any of the terms and conditions of the agreement or if he is found to be otherwise negligent or inefficient or his work is found to be otherwise unsatisfactory and it leaves the employee without any remedy since the clause confers finality to such decision of the Government. 15. MR. Dutt, the learned Advocate representing the petitioner, contended that clause 11 as referred to above as well as clause 2 of the Agreement which provided that either party will have the right and be entitled to terminate the agreement on giving the other party one calendar month's notice in writing, are ultra vires Article 14 of the Constitution, though no such plea has been taken in the writ petition itself. This argument was, however, advanced on a subsequent day with sufficient notice to Mrs. This argument was, however, advanced on a subsequent day with sufficient notice to Mrs. Gupta, the learned advocate appearing on behalf of the respondent and her contention in this regard was that the service of the petitioner being purely a contractual one renewed from year to year and there being no existence of any contract when the impugned actions were taken against the petitioner question regarding the constitutionality of certain provisions of the agreement would be only academic. 16. HOWEVER, as already seen, there was existence of the agreement at all material times, it having been renewed retrospectively and paragraph 10 of the affidavit-in-opposition of the respondents makes it clear that action was taken against the petitioner for having failed to discharge his duties faithfully as per terms and conditions of the agreement. That being so, it will obviously not be merely academic but highly useful to enter into the constitutionality of clauses 2 and 11 of the Agreement in the light of Article 14 of the Constitution. 17. MR. Dutt in this connection relied upon the decision of the Supreme court in Central Inland Water Transport Corporation Ltd. v. Brojo Nath ganguli 1986 (54)F. L. R. 523 (S. C.. There, among other questions, it came up for declaration before the Supreme Court whether clause (1) of Rule 9 of the Rules under which the employment of a permanent employee could be terminated on three months' notice in writing on either side was violative of Article 14 of the Constitution as unconscionable. 18. THE Rule was struck down by the Supreme Court and in that connection in paragraph 90 of the judgment the Court observed as follows: "the principle is that the Courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No Court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. No Court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situation in which the weaker party is in a position in which he can obtain goods or services or mean of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infra-structural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and reasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The Court must judge each case on its own facts and circumstances. " Regarding the concerned Rule the Court in paragraph 99 of the judgment observed that "it confers absolute and arbitrary power upon the corporation" ; that "there are no guidelines whatever laid down to indicate in what circumstances the power. . . . . . is to be exercised. . . . . No opportunity whatever of a hearing is at all to be afforded to the employee. . . . . . . . . . whose service is being terminated in the exercise of this power. It was urged that the Board of Directors would not exercise this power arbitrarily or capriciously as it consists of responsible and highly placed persons. No opportunity whatever of a hearing is at all to be afforded to the employee. . . . . . . . . . whose service is being terminated in the exercise of this power. It was urged that the Board of Directors would not exercise this power arbitrarily or capriciously as it consists of responsible and highly placed persons. This submission ignores the fact that however highly placed a person may be, he must necessarily possess human frailties. It also overlooks the well known saying of lord Acton. . . . . . in the Appendix to his Historical Essays and Studies, that 'power tends to corrupt, and absolute power corrupts absolutely. " 19. ULTIMATELY in paragraph 106 the Court observed that "rule 9 (i) is both arbitrary and unreasonable and it also wholly ignores and sets aside the audi alteram partem rule. . . . . . it, therefore, violates Article 14 of the constitution. " 20. INCIDENTALLY clause 2 of the Agreement under consideration being in pari materia with Rule 9 (i) as referred to above, it clearly violative of article 15 of the Constitution on the grounds as mentioned by the Supreme court as referred to earlier and is, therefore, struck down. Clause 11 of the Agreement again resulted from inequality of bargaining power. It gives absolutely unguided and uncanalised power to the government either to discharge the employee or to terminate the Agreement. It gives completely a go bye to the audi alterm partem rule and leaves the poor employee only a silent spectator. Under this clause it will depend purely on the subjective satisfaction or the whims of the Government authority whether the employee has committed breach of any terms and conditions of the agreement or whether he is negligent, inefficient or whether his work is otherwise unsatisfactory. 21. OBVIOUSLY, due to acute unemployment problem in the State the petitioner had no choice, or rather no meaningful choice, but to give his assent to such an agreement in order to earn a livelihood for him It is, however, really unfortunate that the State would assume such arbitrary powers against a poor employee taking advantage of the absence of any bargaining power in him. Strangely, the arbitrary powers conferred upon the Government under clauses 2 and 11 of the Agreement which is in the prescribed form as given in Appendix IV under Rule 15 of the West Bengal land Management Manual, 1977 are not at all in conformity with its other clauses which tend to confer the status of a civil servant upon a Tahsildar. As a matter of fact, clauses 2 and 11 of the Agreement render the other clauses absolutely nugatory so far stability of the service is concerned, since without assigning any reason the Government by giving a month's notice under clause 2 or by finding him negligent, inefficient etc. under clause 11 purely subjectively and/or whimsically even without any previous notice to him may terminate his service. There is no denying the fact that such arbitrary and unguided powers may very often be misused in the sense that it may be used as a weapon against an employee who may refuse to see eye to eye with Government authority or who displeases him in some way or the other Clauses 2 and 11 of the Agreement thus being arbitrary, unfair and unreasonable and thereby being violative of Article 14 of the Constitution are hereby struck down. This is also necessary in public interest since Tahashildars have been appointed and are even now being appointed on the basis of identical agreement, the preform of which appears in Appendix IV at page 167 of the West Bengal Land Management Manual, 1977 under the heading "agreement with a Tahashildar. " 22. SO far the instant case is concerned, neither any charge-sheet was framed against the petitioner nor any enquiry was held under the relevant rules, viz, West Bengal Services (Classification, Control and Appeal) Rules, 1971 nor any reasonable opportunity was given to him of being heard. 32. The Rule issued be, accordingly, made absolute and the impugned order of termination of the petitioner's service dated December 7, 1978 (Annexure 'g') is set aside. This will, however, not debar the respondent from proceeding against the petitioner in accordance with law. However, unless such proceedings are commenced within a period of 30 days from this date the petitioner should be deemed to have been reinstated in service under a renewed agreement on the expiry of the said period which the respondent shall execute immediately. No order is made for costs.