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1996 DIGILAW 22 (CAL)

SATYA BRATA SHOME v. WEST BENGAL INDUSTRIAL DEVELOPMENTCORPORATION LTD.

1996-01-17

S.B.SINHA, SATYA NARAYAN CHAKRABARTY

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S. B. SLOBS. J. ( 1 ) -THIS appeal was originally filed by three persons who were the writ petitioners before the learned Trial Court. During the pendency of this appeal the appellants Nos. 1 and 3 were reverted to their parent department and thus Mr. Das, learned Counsel appearing on the behalf of the appellant did not press this appeal on behalf of the said appellants before this Court. We are concerned with the case of the appellant No. 2 alone. ( 2 ) THE fact of the matter lies in a very narrow compass. ( 3 ) THE appellant No. 2, Madhusudan Das at the relevant time was an employee of the State of West Bengal. Upon coming into the West Bengal Industrial Development Corporation (A Government of West Bengal Undertaking) the respondent No. l herein, several employees were appointed on deputation. The appellant No. 2 was one of them. He has been placed by his parent department at the hands of the respondent No. l and joined the post on 29. 2. 1980. The respondent No. l sought for objection from the Deputy Secretary to the Govt. of West Bengal, Panchayats and Community Development (Community Development) Department for his promotion to the post of Assistant and Junior Officers. In reply to the said letter the State granted no objection to his promotion subject to the following conditions; if the incumbents concerned are permanently absorbed in the Haldia Petrochemicals under the West Bengal Industrial Development Corporation Ltd, (2) in the alternative the promotion may be given to the deputationists concerned on their giving an undertaking in writing that they will not claim the benefit of such promotion at the time of their reversion to this Department after completion of the normal period of deputation by letter dated 23rd December, 1986. It is not disputed that the State of West Bengal issued two circulars dated 12. 10. 79 and 18. 2. 82 as contained in annexures Z-1 and Z-2 to the writ application whereby and whereunder it was laid down that the normal period of deputation shall be 3 years and can be extended for another period of one year in exceptional circumstances. 10. 79 and 18. 2. 82 as contained in annexures Z-1 and Z-2 to the writ application whereby and whereunder it was laid down that the normal period of deputation shall be 3 years and can be extended for another period of one year in exceptional circumstances. Despite the said circulars being in existence and despite the fact that an undertaking was not taken from the appellant in terms of the aforementioned letter dated 23rd December, 1986 as contained in annexure 'j' to the writ application the appellant No. 2 was promoted to the higher post. It is relevant to mention here that he has been granted second promotion as late as on 12. 1. 1996 to the post of Senior Assistant in the pay scale of Rs. 1500 - 55 - 1655 65-2250-80-3210-100-3410/ which has taken effect from 1. 1. 1996. It is however relevant to mention here that as far back as on 23. 2. 83 the respondent No. 1 expressed its unequivocal stand to observe the appellant No. 2 permanently as they had no other experienced clerical hands, his service was very much indispensable in the interest of the project. By another letter dated 16th May, 1984 the respondent No. l intimated the Deputy Secretary to the Govt. of West Bengal that a new Government Company is in the process of being formed to implement the project. From the said letter it appears that the appellant No. 2's parent department has consented to the respondent No. 1's proposal for their absorption after a separate Company to implement the project was formed. It was stated that the present status is that it will still require some time before the Company is registered and it is only thereafter that they shall absorb him in public interest permanently. As despite the said fact the petitioners were not absorbed permanently they filed a writ application before this Court which was marked as C. O. No. 16119 (W) of 1986. The matter was heard by Paritosh Kumar Mukherjee, J (as His Lordship then was) and by ajudgment and order dated 30th November, 1987 the said learned Judge dismissed the writ application. The matter was heard by Paritosh Kumar Mukherjee, J (as His Lordship then was) and by ajudgment and order dated 30th November, 1987 the said learned Judge dismissed the writ application. The learned Judge, inter alia, on the ground that the respondent categorically stated in the affidavit-in-opposition that in view of communication went on between the Corporation and the parent department the proposal had not reached any finality mid so no right has been accrued to the petitioners on the basis of the said proposal, dismissed the writ application. ( 4 ) MR. R. N. Das learned Counsel appearing on behalf of his client has raised a short question in support of this appeal. The learned Counsel has further drawn our attention to the affidavit affirmed on 16th May, 1994 and submitted that the Managing Director of the respondent No. 1 had approved the mater relating to absorption of the appellant No. 2 as would be evident from annexure 'x' thereto; the relevant portion whereof reads thus :re : Sri M. S. Das - Assistant. 1)regarding permanent absorption approval of erstwhile MD - Petrochemicals placed in the file. 2) his status in HPC Division rataining the benefits seniority, pay, etc. may be examined only after the issue of repatriation of Sri Shome and Sri Datta is settled after taking legal opinion, as may be necessary. 3)regarding-his revised pay-shri Das has already opted for the revised scale of pay of the present deputation post. He may also be allowed provisionally to draw the pay and allowances as per norms subject to the decision in respect of his status. " ( 5 ) IT is submitted that in the instant case therefore the doctrine of promissory estoppel shall be applicable and in any event keeping in view the circulars of the Finance Department as contained in annexures 'z-1' and 'z-2' to the writ application evidently the appellant cannot be repatriated to the parent department. ( 6 ) THE learned Counsel for the respondent submits that the joint venture Company has come into being and the respondent No. 1 has not been able to send the appellant to Haldia Petrochemicals as the purpose for which the proposal had been made for permanent absorption of the appellant does not exist at present. ( 6 ) THE learned Counsel for the respondent submits that the joint venture Company has come into being and the respondent No. 1 has not been able to send the appellant to Haldia Petrochemicals as the purpose for which the proposal had been made for permanent absorption of the appellant does not exist at present. The learned Counsel submitted that the joint sector Company has come into being in 1994 and thus it is now for the joint sector Company to absorb the appellant No. 2 in terms of the proposal of the respondent No. 1 as has been approved by the Managing Director. It is not in dispute that the appellant No. 2 had been working with the respondent No. 1 since 1980. It is not in dispute that he had been given two promotions, one in the year 1993 and another to the year 1996. ( 7 ) IT is not disputed that the Managing Director of the respondent No. 1 has approved the case of the appellant No. 2 for his absorption and thus the subsequent event being relevant for the purpose of disposal of the appeal is being taken into consideration by us as it is well-known that the Court in the interest of justice and In order to avoid further litigation may take into consideration such subsequent events. It is true that a deputationst does not have any legal right to be absorbed but in the instant case, in our opinion, the equity is clearly in favour of the appellant No. 2. If the respondent No. 1 did not want to absorb the appellant No. 2 permanently there was absolutely no reason why he was not reverted. It appears that the appellants lost their case before the learned Single Judge but they were allowed to continue for such a long time and in fact a promotion had been granted in favour of the appellant No. 2 as late as on 12. 1. 1996 which has taken effect from 1. 1. 1996. ( 8 ) THE learned Counsel for the respondent raised an apprehension that the appellant No. 2 may not like to join the joint sector Company. The learned Counsel for the appellant upon taking instruction from his client states that his client has no objection if his service is placed al the hands of the joint sector company. 1. 1996. ( 8 ) THE learned Counsel for the respondent raised an apprehension that the appellant No. 2 may not like to join the joint sector Company. The learned Counsel for the appellant upon taking instruction from his client states that his client has no objection if his service is placed al the hands of the joint sector company. ( 9 ) IN this view of the matter and particularly in view of the fact that the Managing Director of the respondent No. 1 has approved the permanent absorption of the appellant No. 2, we are of the opinion that in equity the said appellant should be absorbed and his service be placed at the hands of the aforementioned Joint venture Company. We have no doubt in our mind that as the respondent No. 1 has some control over the venture Company, there is no reason as the why the decision taken by the respondent No. 1 shall not be implemented by the said Company. It is well known that this Court is not only a Court of law but also a Court of equity. Keeping in view of the fact that the equity is clearly in favour of the appellant No. 2 and interest of justice demands that his case should be considered sympathetically, we dispose of the appeal by directing the respondent No. 1 to consider the appellant No. 2's case for permanent absorption and/or to place his service at the disposal of the said Joint venture Company on the same terms and conditions which he had been enjoying. If such steps are taken, we are of the opinion, that not only the respondent shall not suffer any loss or injury but also the career of the appellant No. 2 shall be saved. ( 10 ) THIS appeal is allowed in part all to the extent mentioned herein above. There will be no order as to costs. S. N. Chakraborty, J-I agree allowed in part