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2005 DIGILAW 708 (CAL)

Ranjan Poddar v. STATE OF WEST BENGAL

2005-11-23

ARUN KUMAR MITRA

body2005
Judgment :- (1.) Points of law to be decided in this writ petition are as follows : -1) Whether Paschim Banga Rajya Prarambhik Siksha Unnyan Sanstha is a State within the meaning of Article 12 of the Constitution of India and whether the writ petition is maintainable on that score or not. 2) If the writ petition is maintainable then whether the order impugned is termination simplicitor or termination with stigma and or whether the said order of termination is valid in the eye of law. (2.) The writ petitioner was appointed in a project viz. The District Primary Education Programme (hereinafter termed as said programme) under Sarva Siksha Abhiyan which commenced in the year 1997 and 2000 respectively. The petitioner was appointed as Administrative Assistant in the said project office in June, 1998. According to the petitioner initially he was appointed for six months. (3.) In paragraph 3 of the writ petition it has been stated that the projects are two fold (a) District Primary Education Programme, and (b) Sarva Siksha Abhiyan. Both the parts are implemented by Paschim Banga Rajya Prarambhik Shiksha Unnayan Sanstha (hereinafter termed as said Sanstha). The first part that is (a) is externally funded by Department of International Development and is Centrally sponsored whereas the second part is Centrally sponsored in collaboration with the State Government. Thus, the project carried out by the said Sanstha are essentially controlled and administered and funded by State and the Sanstha is a State within the meaning of Article 12 of the Constitution of India. The State Project Director gave certain orders on 08/02/2000 to the petitioner which has been made annexure P1 to the writ petition. (4.) By a subsequent memo issued on 07/10/2003 by the Administrative Officer, petitioners service had been extended for one year commencing from 01/01/2003. A copy of the said memo has been annexed in the writ petition as annexure P2. (5.) In the said memo dated 07/10/2003 it has been stated that the petitioner will remain engaged as Administrative Assistant at SPO, WBDPEP and SSA for a period of one year and the date of effect being 01/01/2003 with a monthly remuneration of Rs. 5,250/-. The budget specification as detailed in Order No. 91 dated 08/02/2000 will hold good. (5.) In the said memo dated 07/10/2003 it has been stated that the petitioner will remain engaged as Administrative Assistant at SPO, WBDPEP and SSA for a period of one year and the date of effect being 01/01/2003 with a monthly remuneration of Rs. 5,250/-. The budget specification as detailed in Order No. 91 dated 08/02/2000 will hold good. (6.) Subsequently, through another memo No. 1716/PBRPSUS dated 22/08/2003 the State Project Director informed the petitioner that his service is no longer required in the project and he will be disengaged from service on and from 22/09/2003 and this shall be treated as one months notice. (7.) According to the petitioner this termination of the contract dated 07/01/2003 by issuing the letter of termination dated 22/08/2003 during the period of subsistence of the contract particularly when the post and the project continues and the petitioner has already rendered more than six years of service in the post is illegal. (8.) Affidavit-in-opposition was filed on behalf of respondent Nos. 2 and 3. At the outset in paragraph 4(a) of the affidavit-in-opposition it was stated that the said Sanstha was initially constituted in 1995 which is an association registered under Societies Registration Act, 1961. As envisaged under the Memorandum of Association and Rules of Paschim Banga Rajya Prarambhik Siksha Unnyan Sanstha the said Society was formed to act as an autonomous and independent body for implementation of District Primary Education Programme in West Bengal. This Sanstha was established with the motto of bringing fundamental change in primary education system as also for socio-economic-cultural situation with the specific object amongst others, universalisation of primary education as a composite programme -(i) access to primary education for all children up to 14 years; (ii) participation of all till they complete primary stage education; (iii) universal achievement of a minimum level of learning. In this manner in the said paragraph the said Sanstha stated in detail about their activities and object. The reason of funds of the said Sanstha has also been described in the said paragraph. (9.) In paragraph 4(b) also the details of the programme of said Sanstha were given. In this manner in the said paragraph the said Sanstha stated in detail about their activities and object. The reason of funds of the said Sanstha has also been described in the said paragraph. (9.) In paragraph 4(b) also the details of the programme of said Sanstha were given. (10.) In paragraphs 4(c) and 4(d) it has been stated that the said Sanstha is not a State within the meaning of Article 12 of the Constitution of India and the writ petition is not maintainable and assumingly the writ petition is maintainable, it suffers from non-joinder of necessary party being the Central Government and the writ petition as such is liable to be dismissed. (11.) In paragraph 4(e) also, it has been stated that the said Sanstha is a registered society registered under the Societies Registration Act, 1961 and as such the writ petition is not maintainable. (12.) In paragraph 4(f) the facts leading to the issuance of termination order dated 22/08/2003 has been stated and these facts in paragraph 4(f) with its sub-paragraphs have been stated without prejudice to the rights and contentions made in other paragraphs. (13.) The respondents dealt with the averments made in the writ petition serially. The respondents denied that the petitioner was appointed as Administrative Assistant or his engagement has been periodically extended and he rendered continuous service to the said Sanstha. It has been stated that after first induction of the petitioner in the said Sanstha or society he was given job responsibility and work of Administrative Assistant as spelt out by the Office Order dated 07/02/2000 issued by the then State Project Director, as alleged. (14.) It has further been slated in paragraph 9 of opposition that initial engagement of the petitioner was as casual employee with daily wage of Rs. 50/- paid to him on "no work no pay basis" and the petitioner has suppressed this fact. (15.) The respondents denied that the requirement of the petitioner in the society as Administrative Assistant is till 2010, as alleged. The respondents further denied that the petitioner was engaged after interview in the project. In fact, the respondent authorities denied all the allegations made by the petitioner in the writ petition. (16.) The petitioner submitted reply to the said affidavit-in-opposition. (17.) In the reply the petitioner reiterated his stand taken in the writ petition. The respondents further denied that the petitioner was engaged after interview in the project. In fact, the respondent authorities denied all the allegations made by the petitioner in the writ petition. (16.) The petitioner submitted reply to the said affidavit-in-opposition. (17.) In the reply the petitioner reiterated his stand taken in the writ petition. The petitioner has stated that the respondent No. 2 is a State within the meaning of Article 12 of the Constitution of India and denied the allegation that the writ petition is not maintainable. (18.) In the reply in paragraph 12 the petitioner categorically stated that the petitioner was terminated illegally and the State has got the control over the affairs of the said Sanstha and the said Sanstha is a State within the meaning of Article 12 of the Constitution of India. (19.) The learned Counsel for the petitioner submitted that the said Sanstha is a State within the meaning of Article 12 and in fact there is deep and pervasive control of the Government over the said Sanstha. The funding is also made by the Central and State Governments and in all respects the said Society or said Sanstha can be termed as a State. (20.) The learned Counsel for the petitioner submitted that in the body of the said Sanstha almost all the controlling officers are the officers of the Government. From the point of view of activities the said Sanstha is also performing public functions and/or public duties. (21.) According to the learned Counsel for the petitioner if the decisions of the Honble Apex Court starting from Ajay Hasia are looked into, it will appear that the said Sanstha directly comes under the purview of State within the meaning of Article 12 of the Constitution of India. (22.) In this regard the learned Counsel for the respondent authorities placed the Memorandum of Association of the Society and submitted that it is a Society registered under the Societies Registration Act, 1961. It has no public functions or public duties. It cannot be termed as a State though some officers are the post holders in the said Society. The learned Counsel for the respondent authorities relied on various decisions including the decision of the Honble Apex Court in the case of Pradeep Kr. Biswas and in Federal Bank Ltd.s case. It has no public functions or public duties. It cannot be termed as a State though some officers are the post holders in the said Society. The learned Counsel for the respondent authorities relied on various decisions including the decision of the Honble Apex Court in the case of Pradeep Kr. Biswas and in Federal Bank Ltd.s case. (23.) Before coming to the merit of termination first of all I am to decide whether this sard Sanstha is a State within the meaning of Article 12 of the Constitution of India. Citations relied on or referred to 1) AIR 1981 SC 487 (Ajay Hasia etc. v. Khalid Mujib Sehravardi and Ors. etc.) 2) (1969) 1 SCC 585 (The Praga Tools Corporation, v. Shri C. A. Imanual and Ors.) 3) AIR 1979 SC 1628 (Ramana Dayaram Shetty v. The International Airport Authority of India and Ors.) 4) AIR 1986 SC 1571 (Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr.) 5) 94 Cal WN 1057 (Arjed Ali Gazi v. State of West Bengal) 6) AlR 1989 SC 1607 (Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V. R. Rudani and Ors.) 7) AIR 1992 SC 76 (Chander Mohan Khanna v. The NCERT) 8) AIR 1988 SC 469 (Tekraj Vasandhi alias K. L. Basandhi v. Union of India and Ors.) 9) (2002) 5 SCC 111 (Pradeep Kr. Biswas v. Indian Institute of Chemical Biology and Ors.) 10) Supreme To-day Part 151-2003 (7) (Federal Bank Ltd. v. Sagar Thomas and Ors.) (24.) Before placing reliance on the citations let me have a look into the Memorandum of Association of the said Sanstha. (25.) The objects of the said Sanstha has been described in paragraph 4 and the functions in paragraph 5. Both are quoted hereinbelow: -"4). Objects : The SANSTHA shall act as an autonomous and independent body for implementation of the District Primary Education Programme in West Bengal. The activities of the SANSTHA will be concentrated initially in the selected districts and thereafter may be extended to the whole State of West Bengal in respect of selected and sponsored projects. The SANSTHA has been established to function as a societal mission for bringing about a fundamental change in the primary education system and through it for the overall socio-economic cultural situation. The SANSTHA has been established to function as a societal mission for bringing about a fundamental change in the primary education system and through it for the overall socio-economic cultural situation. The following specific objects would be pursued by the SANSTHA: a) Universalisation of primary education, viewed as a composite programme of (i) access to primary education for all children upto 14 years of age (ii) participation of all till they complete the primary stage of education i.e. primary schooling wherever possible or its equivalent any form of education (iii) universal achievement of at least a minimum level of learning. b) Provision of reduction of disparity, if any, in enrolment, drop-out and learning achievement among gender and social groups. 5) Functions : In pursuance of the above objects, the functions of the SANSTHA to be undertaken directly by the SANSTHA or sponsored/supported by it through other institutions, agencies or individuals, shall be as follows : a) To undertake all activities that may be necessary for the implementation of the project or projects and in particular for the achievement of the objects referred to in Section 4 above. b) To create duly empowered administrative mechanisms, through such participation, as may be deemed necessary of various departments and autonomous agencies of the Central Government and the State Government as also any other organization for the achievement of the aforesaid objects of the SANSTHA. c) To secure active involvement and participation of educational institutions and persons interested in education, voluntary agencies, teachers and individuals committed in educational improvement and to extend financial assistance to them, if considered necessary. d) To bring about effective decentralization in basic education by involvement of the people through a process of training and awareness building and creation of appropriate structures, formal or otherwise. e) To secure constructive and participatory involvement of teachers and persons interested in education for the achievement of the SANSTHAs objectives. f) To take up experimental and innovative programmes in basis education. g) To undertake and promote research and studies relating to basic education and its management. h) To ensure technical resources support by harnessing the existing institutions. i) To advise the State Government, West Bengal Board of Primary Education and District Primary School Council/District School Board on implementation of educational programme. j) To organize conferences, sumposia, workshops etc. on matters related to or in connection with the project. h) To ensure technical resources support by harnessing the existing institutions. i) To advise the State Government, West Bengal Board of Primary Education and District Primary School Council/District School Board on implementation of educational programme. j) To organize conferences, sumposia, workshops etc. on matters related to or in connection with the project. k) To undertake preparation and production of educational materials and to disseminate the same. I) To create academic, technical, administrative, managerial and other posts in the SANSTHA and to make payment for the same in accordance with the Rules and Regulations of the SANSTHA. m) To accept or to provide any grant of money, loan, securities or property of any kind and to undertake and accept the management of any endowment, trust, fund or donation not inconsistent with the objects of the SANSTHA. n) To incur expenditure after drawing up a budget and with due regard for economy and propriety. o) To purchase, hire, take on tease, exchange or otherwise acquire property movable or immovable and construct, alter and maintain any building or buildings as may be necessary for carrying out the objects of the SANSTHA. p) To take all such actions and to enter into all such contracts or actions as may appear necessary or incidental for the achievement of the objects of the SANSTHA." (26.) In Clause 7 of the Memorandum names and address of the first members of the executive committee of the said Sanstha has been given. From list in the said paragraph 7 it appears that (i) to (xiv) are the Government Officers. Sub-clause (xiv) provides for three nominees of the Central Government. Sub-clause (xv) provides two educationists nominated by the State Government and the Central Government; (xvi) Says nomination of two women by the State Government and Central Government; (xvii) says two persons from Non-Government organizations nominated by the Central Government and the State Government; (xviii) is the State Project Co-ordinator and (xix) is the State Project Director that is out of 19 members all are either Government officials or the persons nominated by Central or the State Government. (27.) In Clause 8 of the Memorandum some officials have been named who subscribed their views to the objects of the Society. Out of those seven members mentioned in clause (8) who subscribed their views, it appears that all the seven persons are Government or semi-Government officials. (27.) In Clause 8 of the Memorandum some officials have been named who subscribed their views to the objects of the Society. Out of those seven members mentioned in clause (8) who subscribed their views, it appears that all the seven persons are Government or semi-Government officials. (28.) In said Memorandum contains rules of Paschim Banga Rajya Prathamik Siksha Unnayan Sanstha. Rule 6 of the said rules provides that the said Sanstha shall consist of following members : - i) Chief Minister - President ii) Minister-in-Charge of Education (Primary - Working President and Secondary) iii) Minister of State (Primary, Secondary and - Vice President Madrasah)Education iv) President, West Bengal Board of Primary Education - Member (29.) And other twenty two members. Thus, twenty six members in all are either Ministers or Government officials or the Government nominees. (30.) Rule 14 of the said rules provides for the powers and functions of the said Sanstha. (31.) In clause (vi) of Rule 14 it has been stated that the Sanstha shall obtain prior consent of the State Government and the Central Government before undertaking any new project. Rule 24 speaks of an Executive Committee comprising of 14 members who are also Government officials and Chairman of the said Executive Committee is the Secretary, Education (School Education) Department Government of West Bengal. Powers and functions of the Executive Committee has been provided in the Rules. Funds of the said Sanstha will come from (as provided in Rule 49) grant-in-aid made by the Central and State Government, contribution from other sources, in fact from the assets of the Society, receipts of the Sanstha from other sources and grants, donations or assistance of any account from Foreign Government or other external agencies with prior approval of the Central Government. It has also been provided in the rule that amendments of the rules can be made with prior approval of the State Government and Central Government. (32.) From the entire provisions made out in the Memorandum of Association it appears that the Government or the Governmental authorities have got deep and pervasive control over the said Sanstha ; finance is also made either by the Central or State Government or by way of acceptance of donations and/or contributions with approval of the Government. (32.) From the entire provisions made out in the Memorandum of Association it appears that the Government or the Governmental authorities have got deep and pervasive control over the said Sanstha ; finance is also made either by the Central or State Government or by way of acceptance of donations and/or contributions with approval of the Government. It also appears that the said Society is a non profit making organization and its sole object is to develop primary education in the State. Controlling authorities or Officers are Governmental Officers. In that view of the matter it can be said that the said Sanstha is performing public functions and/or doing public duties. Considering all the above aspects in the light of the decisions of the Honble Apex Court and this High Court referred to above, it clearly appears to me that the said Society, the respondent No. 2 herein is a State and/or instrumentality of the Government within the meaning of Article 12 of the Constitution of India. (33.) The learned Counsel appearing for the said Society drew reference of another Supreme Court decision reported in Supreme To-day Part 151-2003 (7) (Federal Bank Ltd. v. Sagar Thomas and Ors.) and tried to get some air out of the said decision and submitted that in this Federal Banks case the Honble Apex Court has observed that since there is control of Reserve Bank of India it cannot be termed as State and it is a private body. (34.) The learned Counsel submitted that if there is Governmental control also, the said Sanstha or the said Society cannot be said to be State or instrumentality of the Government in terms of the provisions of Article 12 of the Constitution of India. (35.) In my view, Federal Banks case doesnt have relevance in this context inasmuch as the said Society here is not only controlled by the Governmental authority but it also performs public functions and public duties. Here, the control is maximum and finance is also either being made by the Government or being controlled by the Government. In that view of the matter the said Society or the said Sanstha can be termed as State or instrumentality of the Government and in this regard the contentions of the learned Counsel for the said Sanstha, with due respect cannot be accepted. In that view of the matter the said Society or the said Sanstha can be termed as State or instrumentality of the Government and in this regard the contentions of the learned Counsel for the said Sanstha, with due respect cannot be accepted. (36.) Now, therefore, since I hold that the writ petition maintainable, I am to examine the merit of the termination of the petitioner herein that is it is to be decided whether this termination of service of the petitioner without any show-cause or without any departmental proceeding can be termed to be valid one or not. (37.) Firstly, I am to consider the appointment or the terms of appointment of the petitioner before entering into the merit of termination. I am therefore, to examine as to how and on what term the petitioner was appointed. (38.) From the writ petition and/or its annexure it is not clear as to what were the terms of appointment of the petitioner. (39.) In the affidavit-in-opposition it has been stated that "the writ petitioner, as it appears from records, joined the service in the Society as Casual Worker in 1996 on daily wages of Rs. 50/-." It has also been stated "curiously enough without any appointment orders the writ petitioner was engaged subsequently on monthly remuneration and such monthly remuneration was enhanced from time to time." Then it has been stated that the writ petitioner, under an order dated 07/01/2003 was given contractual employment as Administrative Assistant for a period of one year from 01/01/2003 at a monthly remuneration and he was assigned with the duties as Administrative Assistant for logistic arrangement of workshop, hotel accommodation, transport etc. and all other day to day costs. (40.) Subsequently, by an order dated 22/08/2003 the service of the petitioner was terminated. The language of the letter is as follows : -"Your service is no longer required in this Project. You will be disengaged from service on and from 22.09.2003. This shall be treated as one months notice." (41.) In the affidavit-in-opposition it has been staled that this termination is a termination simplicitor of the petitioner and it will not create any stigma in his service career. (42.) It has further been stated that appointment is contractual for one year that is he was appointed on 07/01/2003 w.e.f. 01/01/2003 and he was terminated on 22/08/2003 w.e.f. 22/09/2003. (42.) It has further been stated that appointment is contractual for one year that is he was appointed on 07/01/2003 w.e.f. 01/01/2003 and he was terminated on 22/08/2003 w.e.f. 22/09/2003. (43.) Now, two things come; whether the termination was a termination simplisitor or whether it was a contractual service for one year. (44.) Insofar as the termination simplisitor without any notice or inquiry is concerned, the law is settled on Samsher Singh v. State of Punjab and Anrs. case ( AIR 1974 SC 2192 ). In this judgment the Honble Apex Court observed that the form of order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may, in the facts and circumstances of the case establish that an inquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311. Here, it may not be a case of Article 311, the principle laid down by the Honble Apex Court is amply clear in this judgment and not only in this judgment but also in AIR 1985 SC 251 (Workmen of Hindusthan Steel v. Hindusthan Steel) the Honble Apex Court followed the same principle. (45.) In so many other judgments the Honble Apex Court held that there is question of lifting the veil where the Court finds that something in confidence is there in camouflage beyond the innocuously worded order. Here, from affidavit-in-opposition itself it appears that serious allegations were labeled against the petitioner which even amounts to misconduct and these allegations were made in paragraph 4(f)(i),(ii) and (iii). (46.) In paragraph 4(iv) of the opposition it has been stated that the petitioner joined as casual worker in 1996 on daily wages of Rs. 50/-but it is not known to the respondent authorities how he was appointed on monthly basis. From this averment it comes out that the petitioner was appointed as casual worker in 1996 and thereafter, he was paid salary on monthly basis. It is also clear from the averments made in the affidavit-in-opposition that there is allegation of drainage of fund against one officer in collusion with the petitioner. From this averment it comes out that the petitioner was appointed as casual worker in 1996 and thereafter, he was paid salary on monthly basis. It is also clear from the averments made in the affidavit-in-opposition that there is allegation of drainage of fund against one officer in collusion with the petitioner. Admittedly, therefore, two things come out; one is the petitioner was not appointed on contractual basis w.e.f. 01/01/2003 for one year inasmuch as admittedly, initial appointment of the petitioner was in 1996 and thereafter he was engaged as Administrative Assistant in 2003. In that view of the matter the petitioner was not a purely contractual or temporary employee and the petitioner was not terminated also immediately after one year. From the termination letter it appears that effect was given from 22/09/2003 and appointment was effective from 01/01/2003 which amounts to about nine months of service as Administrative Assistant and it doesnt appear that this was a contractual engagement. This was an appointment and the petitioner got the status. (47.) I have discussed only two Apex Court judgments but in my view there are so many other judgments (some of which are referred to above) and it is well settled that if any allegation is there against such an employee, inquiry is a must and this is a stigma. May not be in the wordings of the termination there appears to be stigma but from the admitted position of records (as it appears from affidavit-in-opposition) there are serious allegations against the petitioner and inquiry is needed when more so the allegation is to the level of departmental head comes in collusion with the employee/petitioner. In that view of the matter the order of termination appears to be bad and is set aside. The department is given liberty to proceed against the petitioner, if they are so advised. The petitioner will be allowed to join in his post without any back wages for the period the petitioner didnt render his service. The authority may also place the petitioner under suspension during the pendency of departmental inquiry which may be started. (48.) During the period of suspension however, the petitioner will be entitled to Subsistence Allowance as per rules. The petitioner will be allowed to join in his post without any back wages for the period the petitioner didnt render his service. The authority may also place the petitioner under suspension during the pendency of departmental inquiry which may be started. (48.) During the period of suspension however, the petitioner will be entitled to Subsistence Allowance as per rules. Such departmental proceeding, if advised is to be initiated with a month from date of communication of the order and is to be completed within six months from the date of initiation of the proceeding. (49.) With the above observations and/or directions the writ petition is disposed of. There will be no order as to costs.