Jiban Kumar Banerjee v. State of West Bengal — 1993 DIGILAW 142 (CAL)

Order In this application the petitioners have complained of the violation of an order passed by this Court on 2.9.92. 2. Prior to 1986 the petitioners were in service under the State, in the State Water Investigation Directorate Department of Agriculture (Minor Irrigation Wing) (referred to as the Directorate.) The cadre comprised of Lower Division Clerks (LDCs) and Typist-cum-Clerks. There was a single gradation list for this cadre. In 1986, the single or common gradation list was split into two and two separate cadres were created one of Lower Division Clerks and the other of Typist-cum-Clerks. 3. The writ petitioners have been harbouring grievances since 1988 that they should be treated as Clerk-cum-Typist instead of Lower Division Clerk in the Directorate. This was because the promotion to the next higher grade was from both the cadres and following the effect of the split, the Clerk-cum-Typists had better prospects of promotion than the LDCs. It was stated that because of the failure on the part of the respondents to allow the petitioners to be part of the Typist-cum-Clerk cadre, the petitioners had been superseded by their juniors. 4. On 13.1.89 the petitioners moved a writ application being C.O. No. 259(W) of 1989. That writ petition was disposed of by M. Majumdar-J., on 1.8.89 by directing the Secretary, Minor Irrigation and Agriculture Department: (i) to go into the grievances of the petitioners m effective and objective manner. (ii) to treat the writ petition as a representation, (iii) to give the petitioners an opportunity of being heard, (iv) to consider the entire matter including the basic grievances of the petitioners as also objection of the Department after calling the records from the Directorate; and (v) to pass a reasoned order within the period of 2 months from the date of communication of the order. The draft Seniority List in the Cadre Clerk-cum-Typist was directed not to be acted upon. The promotions were to be granted on ad hoc basis without conferring any rights upon the promotees. M. Majumdar, J., also directed the Secretary to give hearing to any person who may be effected by the order which may be passed by the Secretary. Two posts were directed to be kept vacant. 5. The promotions were to be granted on ad hoc basis without conferring any rights upon the promotees. M. Majumdar, J., also directed the Secretary to give hearing to any person who may be effected by the order which may be passed by the Secretary. Two posts were directed to be kept vacant. 5. The basic grievances referred to in the order of M. Majumdar-J. had been listed by the Learned Judge as follows: "(a) Before preparation of separate gradation list for clerk-cum-typist extracting their names from the combined Gradation List of L.D.C. for catering separate promotional prospect, no option was asked from the LDCs. who would like to remain in the separate cadre of Clark-cum-Typist; (b) Due to such action of the Directorate it is seen that Sri Maity who was junior to the petitioner no. 2 in the L.D.C. Clerical Cadre has been figured in separate gradation list of clerk-cum-typist at serial No.3 and by virtue of that he is due to receive the benefit of promotion to the post of U.D.C.-cum-typist/clerk-cum-typist (Grade I) superseding the petitioners and other seniors of the combined Gradation list; (c) There was no separate examination, separate test, separate panel and the petitioners and others including the persons named in Annexure F/1 were selected and enlisted in the panel by way of common test, common seniority and in order of merit in the said panel. There was no Government instruction for separation, and for creation of new cadre from the members of the same empanelled candidates including the petitioners. There was no Government decision for bifurcation and for creating avenues of new promotion to a class of favoured clerk-cum-typists who were born with the petitioners. On the other hand, the petitioners have been kept deprived of their due weightage, due seniority, due empanelment and due promotion. But 'curiously the juniors have been showered with unprecedented favour and seniority to the detriment of the petitioners." 6. By an order dated 24/28.10.91 the Secretary Minor Irrigation being the respondent No. 1 herein held that the petitioners were not entitled to the reliefs claimed in the writ petition and the representation was rejected. Being aggrieved by the order of the Secretary dated 24/28.10.91, the petitioners tiled the second writ application which was disposed of by this Court on 2.9.92. By that order dated 2.9.92 I had held that the reasoning in the order dated 24/28.10.91 was incorrect. Being aggrieved by the order of the Secretary dated 24/28.10.91, the petitioners tiled the second writ application which was disposed of by this Court on 2.9.92. By that order dated 2.9.92 I had held that the reasoning in the order dated 24/28.10.91 was incorrect. 7. Briefly stated the Secretary had rested his rejection of the petitioners' representation on a decision of A.K. Sengupta, J. in C.O. No. 1880 (W) of 1984 (Amitava Ghosh & Anr. vs. State of West Bengal) in which it was held that once two cadres had been created from a common Gradation List, there could be no lateral transfer. There was no finding on the "basic grievances" of the petitioners as directed by M. Majumdar, J. viz. (i) that the petitioners had not been asked to exercise any option which the separation of cadres was effected and (ii) that there was no basis for creation of the separate cadre of clerk-cum-typist. I clarified that the decision of A.K. Sengupta, J. in the case of Amitava Ghosh (ibid) was not applicable as in that case by the separation of cadres there had also been a change of status. In the present case there was no change of status. The Secretary, being the respondent No. 1 had said in his order dated 24/28.10.91 that although Clerk-cum-typist could opt to become a L.D.C., L.D.C. could not opt to become the Clerk-cum-Typist. I held that if the Clerk-cum-typist could opt to be laterally transferred as L.D.C. there could be no justification for L.D.C. not being transferred laterally to the post of Clerk-cum-typist. It was further emphasised in my judgment dated 2.9.92 that the fact that the petitioners had opted for the post of L.D.C. in 1984 was immaterial as separation of cadres between Clerk-cum-typist and L.D.C. took place in 1986. I also stated that there did not appear to be any justification for creating separate cadres. 8. Accordingly I disposed of the second writ application by setting aside the order dated 24/28.10.91 by directing the Secretary to reconsider the decision in the light of the observations contained in this decision and subject to the same conditions imposed by M. Majumder J. by his order dated 1.8.1991. The decision was required to be taken within two months of the service of a copy of the order and till such decision was taken the interim order already granted was directed to operate. The decision was required to be taken within two months of the service of a copy of the order and till such decision was taken the interim order already granted was directed to operate. 9. The order was communicated to the respondent No. 1 on 30.9.92 and on the respondent No. 2 on 29.9.92. 10. On 19.10.92 the respondent No.2 published a list of permanent Lower Division Clerks with the Directorate. In that list the petitioners feature at Serial No. 3 and 7. The petitioner No.1 had immediately protested the declaration of permanency as L.D.C. 11. On 21.1.93, the petitioners moved this application for contempt complaining that the order dated 2.9.92 had been violated by the respondents inter alia by not reconsidering the decision dated 24/28.10.91 and passing a fresh order within the time frame and secondly by issuing Memo dated 19.10.92 without considering the matter in terms of the order passed by this Court. 12. On 25.1.93 and 30.1.93 the petitioners nos. 1 and 2 received copies of an order claimed to have been passed by the respondent No.1 on 18.1.93 and posted on 22.1.93. A supplementary affidavit was filed by the petitioners enclosing a copy of the order. 13. At the hearing the petitioners have contended that there was an unexplained delay in passing the order dated 18.1.93 which, in any event, according to the petitioners, was obviously backdated. It is further stated that there was no decision by the Respondent no. 1 in terms of the observations of this Court. In fact no affidavit had been filed by the Respondent No. 1 in answer to the petition, but an affidavit had been filed by the Respondent No. 2 on behalf of himself and the Respondent No.1. 14. The respondents have stated that although there was some delay in passing the order on 18.1.93, the delay was not deliberate. It is further stated that a joint affidavit had been filed by the respondent No.2 on behalf of the respondent No. 1 since no contempt rule had been issued. 15. As far as the merits are concerned it has been contended that the order dated 2.9.92 had been complied with and that although the order may be a wrong order, it could not be said to have been contumaciously passed. 15. As far as the merits are concerned it has been contended that the order dated 2.9.92 had been complied with and that although the order may be a wrong order, it could not be said to have been contumaciously passed. At the most, it is submitted, the petitioners would be entitled to challenge the order dated 18.1.93 by way of a fresh writ petition. There was no case for contempt. Reliance has been placed on the decision in Tapan Kumar Mukherjee vs. Sri Heromoni Mandal and Anr. reported in AIR 1991 SC 281 . 16. In my opinion, the respondents are both guilty of contempt. Although the respondent No. 2 has retired from service on 26th February 1993 the fact is immaterial as the respondents had been impleaded in their personal capacity. 17. As far as the respondent No. 1 is concerned, he is still in service. He did not choose to personally file any affidavit in the proceedings although the responsibility for complying with the order dated 2.9.92 was on him. It has been held by a Learned Judge of this Court that in contempt proceedings no contemnor can delegate the power to any other contemnor to affirm the affidavit-in-opposition or any other application on his behalf (See: Samarendra Mukherjee vs. M.K. Lal and Ors. Cal L.T. 1991(1) H.C. 8). 18. It is no answer to say that a joint affidavit was filed because no contempt rule has been issued. First, the affidavit is not a joint affidavit but an affidavit of the respondent No. 2 affirmed on behalf of the respondent No. l. Secondly, by an order dated 5th February 1993, which was passed in the presence of the Learned Counsel for the respondents, it was made clear that on the basis of the affidavits as filed if the Court was of the view that the respondents had committed contempt, there would be no question of issuance of any Rule at that stage or of any other further opportunity to show cause as to why proceedings in contempt should not be taken against them and the matter would be heard and disposed of on the basis of the affidavits as filed finally. The order was one which the Court was competent to pass under Rule 19 of the Calcutta High Court Contempt of Court Rules, 1975 and has not in any event been appealed from. The order was one which the Court was competent to pass under Rule 19 of the Calcutta High Court Contempt of Court Rules, 1975 and has not in any event been appealed from. The affidavit in answer to the application was failed after this order was passed. 19. No affidavit having been filed by the respondent No.1, it can be assumed that he has no explanation to give in answer to the application of the affidavit. Even if one considers the affidavit of the respondent No.2, no credence can be given to the explanation for the delay in complying with the order passed by this Court. The order is dated 2nd September, 1992. The time to comply with the order dated 2nd September, 1992 was therefore, to expire on 30th September, 1992. The explanation regarding the Puja Holiday covered only one week of the period of two months. The explanation relating to the unrest following the Ayodhya dispute was subsequent to the expiry of the time. Further, no attempt has been made to explain how the respondent No. 1 was in any way disturbed in functioning by reason of the tension which followed the incident at Ayodhya on 6th December, 1992. If the respondent No. 1 had found that the time was inadequate it was always open to him to come to Court and ask for an extension. He could not sit back and pass an order much beyond the time specified by Court and assume that the Court would overlook the laches on his part as a matter of course. This is indicative of the light-hearted manner in which the respondent No. 1 has purported to carry out the order dated 2nd September, 1992. 20. I have serious doubts whether the order claimed to be dated 18th January, 1993 was in fact passed on that date. On the other hand, it appears that the respondent No. 1 was galvanized into action after receipt of the contempt petition on 22nd January, 1993. The 18th of January was a Monday. The 22nd of January was a Friday. It is not explained• why it took five days for the order to be dispatched to the petitioners. 21. Apart from being passed beyond the time specified by this Court, the order dated 18th January 1993 is directly contrary to the judgment dated 2nd September 1992. The 18th of January was a Monday. The 22nd of January was a Friday. It is not explained• why it took five days for the order to be dispatched to the petitioners. 21. Apart from being passed beyond the time specified by this Court, the order dated 18th January 1993 is directly contrary to the judgment dated 2nd September 1992. In spite of this Court having held that the decision of A.K. Sengupta, J. in Amitabha Ghosh's case was not applicable, the respondent No. 1 has again relied on the decision in Amitabha Ghosh's case and held that the decision of A.K. Sengupta, J. was applicable: I had held that the fact that the petitioners had opted to become Lower Division Clerks in 1984 was immaterial as the separate Cadre was created in 1986. The respondent No.1 again relied on this fact. 22. As already indicated the respondent no. 1 was not only to address himself to the issues raised specifically by this Court in this judgment dated 2nd September, 1992 but he was to pass the decision in a manner directed by M. Majumdar-J. That envisaged, inter alia: 1. The hearing of the petitioners in person. 2. The calling of the records from the Directorate. 3. Giving of notice to any person affected by the order. 23. In this case no notice appears to have been given to the petitioners nor were the petitioners are heard. Nothing has been stated as to when the records were sent for, if at all, from the Directorate or when the record was made available. No finding was arrived at as to whether the petitioners were given the option to be placed in the cadre of Clerk-cum-typist in 1986. Nothing has been stated regarding the basis for the creation of the separate cadres. Incidentally the Recruitment Rules of 1989 do not appear to be applicable to the cadre of Clerk-cum-typist in 1986. 24. The decision relied upon by the respondents is inapplicable. The Supreme Court held that the benefit of doubt should be given to the alleged contemnor. There is no doubt in this case. 25. I, therefore, held that the respondents are guilty of contempt of this Court. The respondents have tendered their apology to Court 'through their Counsel. The apology is a belated one and of doubtful sincerity. However I take the same into consideration in awarding the punishment. There is no doubt in this case. 25. I, therefore, held that the respondents are guilty of contempt of this Court. The respondents have tendered their apology to Court 'through their Counsel. The apology is a belated one and of doubtful sincerity. However I take the same into consideration in awarding the punishment. The respondents are to pay a fine of Rs.250/- each within one week failing which they will undergo simple imprisonment for 2 weeks. The order dated 18th January 1993 purported to have been passed in compliance with the judgment dated 2nd September, 1992 is quashed as having been passed in contumacious disregard to the directions of this Court. 26. The confirmation of the petitioners as permanent Lower Division Clerks without the decision of the respondent No. 1 amounted to prejudging the issue and by-passing the direction of this Court and is accordingly also quashed. The respondent No. 1 is directed to strictly carry out the directions as embodied in the judgment dated 2.9.92 within a period of six weeks from date. The interim order already granted will continue until such decision is taken. The respondents will pay the costs of this application to the petitioners assessed at 25 GMs each. Such payment is to be made within one week from date. The oral prayer for stay of operation of this order is refused. Let xerox copy of his order be given to the parties, if applied for, on the usual terms and undertaking. Impugned order dated 18.1.93 quashed being passed in contumacious disregard to the directions of this Court. Respondents found guilty of Contempt of Court, directed to pay a fine of Rs.250 each within one week in default to undergo simple imprisonment for two weeks-Respondents directed to carry out the order of the Court dated 2.9.92 and within six weeks to pay petitioners costs of 25 gms. within one week.