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2008 DIGILAW 218 (CAL)

Rinku Mondal v. UNION OF INDIA

2008-02-20

TAPAN KUMAR DUTT, TAPEN SEN

body2008
Judgment :- (1.) WHEN this appeal was called out, Mr. Indranil Chakraborty, learned counsel appearing for the Appellants, submitted that he is pressing this appeal only qua the Appellant No. 1 [i. e. Smt. Rinku Mondal Biswas]. He states that he is not pressing the Appeal on behalf of the Appellant No. 2 (Smt. Sarifunnessa). (2.) THE facts of this case are that the two Appellants/petitioners (hereinafter referred to for the sake of brevity as the Appellants had come to this Court in a Writ Petition which was registered as W. P. 4953 (W) of 2002, making a grievance that after having been selected as Anganwari workers vide letter dated 15. 11. 2001 and after having been appointed on the basis of Appointment letter issued on the same day, the respondents thereafter issued an Order on 03. 01. 2002 being in the nature of a Notice informing them, inter alia, that they had suppressed their educational qualifications and as such, they were required to show cause as to why their services should no be terminated. (3.) THE Appellants had stated that they gave their reply immediately but nothing happened and on the contrary, instead of allowing them to join their duties, they were discharged on and from 17. 1. 2002. This was stated by them in Paragraph 7 of the Writ Petition. (4.) BEING thus aggrieved, the aforementioned Writ Petition was filed in which one of the Prayer was for an Order and/or for the issuance of a writ in the nature of a writ of Mandamus commanding upon the respondent authorities to allow the Appellants to join and resume their duties as Anganwari Workers in the Office of the Child Development project Officer, Basirhat-II, Kholapota, 24 Parganas, North. (5.) ON 21. 3. 2002 an Honble single Judge of this Court directed the petitioner to serve copy of the writ petition upon the Respondents and file Affidavit of Service. The matter was directed to appear after two months but in the meantime, the Respondent authorities were told not to give effect to the aforesaid Notice which was made annexure-P/4 for a period of three months. (6.) THEREAFTER, on the 6th of August, 2003, an Honble single Judge of this Court dismissed the Writ Petition for default and vacated the interim order. (6.) THEREAFTER, on the 6th of August, 2003, an Honble single Judge of this Court dismissed the Writ Petition for default and vacated the interim order. It is necessary to quote the said Order as it has not been brought on record and because it is crucial for the adjudication of this Appeal. The same reads as follows: "W.P. 4953 (W) of 2002 august 6, 2003 no one appears in support of the writ application in spite of repeated calls. Accordingly, the writ application is dismissed for default. Interim order, if there be any, stands vacated. There will be no order as to Costs. " (Quoted) . (7.) LET it be recorded that since the aforementioned order dated 6. 8. 03 was not included in the paper book, we had called for the records of w. P. 4953 (W) of 2002 and it is after we had perused the said Order that we have quoted the same. (8.) AFTER dismissal of the Writ Petition as above, an Application for recalling the aforementioned Order was filed on 30. 9. 03 vide Interlocutory application being C. A. N. No. 8929 of 2003. The same was placed before the said Honble single Judge on 22.01. 04 (see running page 32 of the paper-book) and it appears that after having considered the balance convenience, the said Honble Judge directed that "status quo already granted shall be maintained until further orders of this Court". At the same time, the said learned Judge directed that Affidavit-in-Opposition be filed by 30th January, 2004. The matter was then directed to appear on 5th February 2004. (9.) THE said Order dated 22. 01. 2004 reads as follows:-"w. P. 4953 (W)/2002 re: CAN No. 8929/2003 mr. S. Nath it appears to this Court that an application for recalling of the order dated 6th August, 2003 has been filed on 30th September, 2003. Because of delay, certain explanations are called for. I find from the petition that the knowledge of the petitioners Advocate is on 23rd September, 2003. A supplementary affidavit to that extent has been filed. Now, at the time of recalling of the order, it has been virtually contended by the learned counsel appearing for the respondents that the effect of the order of dismissal has been given. He wants to put this submission by way of an affidavit. A supplementary affidavit to that extent has been filed. Now, at the time of recalling of the order, it has been virtually contended by the learned counsel appearing for the respondents that the effect of the order of dismissal has been given. He wants to put this submission by way of an affidavit. Under such circumstances, for the balance of convenience, status-quo already granted be maintained until further orders of this court. Let affidavit-in-opposition be filed by 30th January, 2004, reply thereto, if any, may be filed by 4th February, 2004. Let this matter once again appear for hearing on 5th February, 2004. Let a plain copy of this order duly countersigned by the Asstt, Registrar (Court) be given to the learned counsel for the parties on usual undertaking. " (Quoted but emphasis by bold fonts is by this Court) (10.) IN the said Interlocutory Application, the Respondents had filed an Affidavit-in-Opposition wherein at Paragraph 4, they had admitted the fact relating to the dismissal of the Writ Petition for default. Subsequently, on 23. 03. 2004 the said Application for Restoration was however dismissed with Costs of 30 Gms. This is an application for restoration of the earlier order dated 6th August, 2003, wherein the writ petition was dismissed and the interim order was vacated. The application for restoration has been made before this Court on 30th September, 2003. Parties were directed to exchange their affidavits when the Court had come to know that the order of dismissal had given effect to. Today, a corresponding letter issued by the learned counsel appearing for the petitioners dated 22nd January, 2004 has been shown to this court from which it appears that the Court has been pleased to restore the matter. Although factually it is incorrect but this is good enough for the purpose of dismissal of this application with cost. Therefore, the copy of the letter dated 22nd January, 2004 filed in Court today be kept with the record. The application for restoration being CAN No. 8929/2003 stands dismissed with cost assessed at 30 G. Ms. to be paid by the petitioners for writing the letter and coming to Court with uncleared hands by the petitioners. Therefore, the copy of the letter dated 22nd January, 2004 filed in Court today be kept with the record. The application for restoration being CAN No. 8929/2003 stands dismissed with cost assessed at 30 G. Ms. to be paid by the petitioners for writing the letter and coming to Court with uncleared hands by the petitioners. (Quoted but emphasis by bold fonts is by this Court) (11.) UPON a perusal of the aforesaid Order dated 23.3.2004, it is evident that the Restoration Application stood dismissed on account of production of a Letter by a Lawyer in which he had attempted to point out that while granting time file Affidavit-in-Opposition by the 5th of February, 2004, the Honble Single Judge had actually restored the case by recalling the order of dismissal dated 6.8.03. It is necessary therefore to quote the text of that letter also and which has been kept with the Writ Petition itself. Upon a perusal thereof, we find that the same reads as follows:-Dated: 22.01.2004 "to the Child Development Project Officer, 1. C.D.S. project Basirhat-II, Kholapota. 2. The Block Development Officer, basirhat-II, Kholapota, North 24 Parganas. 3. The Prodhan, Kholapota Gram Panchayet, P.O. Kholapota, North 24 Parganas 4. The Savapati, Basirhat-II, No. Block Panchayet samiti, Kholapota, North 24 Parganas. Re: W.P. No. 4953 (W) of 2002 c. A. N. No. 8929/2003 rinku Mondal @ Biswas and Sarifunnessa, vs. State and Ors. Sir (s), the above matter has been taken up today i. e. on 22.1.04 by the honble Justice Amitava Lala and upon hearing the learned Advocates for both the sides and considering the papers including the letter of the learned Advocate for the petitioner dated 16.1.04 served upon you, the respondents, His Lordship has been pleased to restore the case by recalling the order of dismissal dated 6.8.03. His Lordship has further been pleased to pass an order of status quo as regards to the service of the petitioners and to direct the respondents to file Affidavit-in-Opposition by 5.2.04 and the reply thereto to be filed by 11.2.04 and the matter will be heard again on 12.2.04. Accordingly you are requested to allow the petitioners to discharge their duties in their respective posts peacefully in strict compliance with the Honble High Court order dated 22.1.04. Thanking you, yours faithfully, s. Nath, Adv. " (Quoted but emphasis by bold fonts is by this Court). Accordingly you are requested to allow the petitioners to discharge their duties in their respective posts peacefully in strict compliance with the Honble High Court order dated 22.1.04. Thanking you, yours faithfully, s. Nath, Adv. " (Quoted but emphasis by bold fonts is by this Court). (12.) AFTER the abovementioned Interlocutory Application (for Restoration) being C. A. N. No. 8929 of 2003), stood dismissed for the aforementioned reason on 23.3.2004 the Appellants then filed another writ Petition being W.P. 6262 (W) of 2004. By an order dated 2.4.2004 the said Writ Petition was dismissed observing that the only course open was to dismiss the Writ Petition summarily with exemplary Costs. However the said Honble Juidge did not ultimately impose the said Costs. Some of the observations of the learned single Judge which has been impugned in this Appeal are as follows: "this Court is absolutely bound by the said decision and not only common etiquete but judicial propriety demands that this Court should not even touch the said question which has reached its finality on account of the decision of His Lordship and by that way the submission of the learned counsel does not have any effect of this Court. Now with regard to the second ascept of the matter that the subsequent development took place showing that the petitioners are still in service by virtue of an annexure appearing at page 24 being annexure p7 to this newly misconceived and illegal writ application. This Court on a careful consideration finds that the said annexure cannot by any stretch of imagination go to show that the petitioners are still in service, it is simply described that the pelitioner. No. 2 has been shown in abbreviation (Anganwari Karmi) and a meeting was called by the Upa Pradhan. Even a lay man will not form an opinion by such nomenclature that the petitioner can be described to be in service. As such even if, this Court accepts the submissions of the petitioner that there is a subsequent development and a new cause of action as arising subsequent to the dismissal order recorded by His lordship the Honble Justice Amitava Lala, the question cannot be gone into in view of the said fact and the Court cannot come to a conclusion that the petitioners are presently working. Now, only course open is to dismiss the writ application summarily with exemplary costs. Now, only course open is to dismiss the writ application summarily with exemplary costs. But before assessing the costs, this Court sitting as a Court of equity is not oblivious of the plight of the petitioners who are no longer in employment and in the event any cost is quantified at this stage on account of misadventure of their counsel ultimately it would be burdening them for no fault of their. Taking into account this paramount condition, this Court which refrain itself from imposing any cost which would ultimately affect them already burdened petitioners who are admittedly not in employment. This writ application is thus dismissed. " (Quoted as it appears in the Paper-book). (13.) IT is against the aforementioned Order dated 2.4.2004 that this appeal has been filed. On 11.10.2004, a Division Bench of this Court observed that this Appeal involves the only question as to whether a second Writ Petition was maintainable when an earlier Writ Petition had been dismissed for default. It would therefore, perhaps also be necessary to quote the aforementioned order dated 11.10.04 passed in this Appeal and which reads as follows:- "mat 1278 of 2004 FMA 2408/2004 11.10.04 Mr. S. Bhattacherjee. . . . . . . . . . . . . . . . . . . . . . . for the appellants ms. Rina Banerjee. . . . . . . . . . . . . . . . . . . . . . for the respondents re: CAN 3630 of 04 (Appl. For stay)While making submissions on the stay application, Mr. Bhattacharjee, submits that the appeal is directed against the order of the learned single Judge, holding that a second writ petition was not maintainable, when an earlier writ petition had been dismissed for default. In the circumstances, in our view, no interim order can be passed on the stay application and the appeal itself will have to be heard out, if any relief is to be given to the appellants. Since the appeal involves only the aforesaid question of law, let the same be heard on the basis of the available papers viz. , the memorandum of Appeal, the Stay Application and any other papers that may have been used, before the learned single Judge. Let this appeal be listed for hearing two weeks after the Puja Vacation. Since Ms. Since the appeal involves only the aforesaid question of law, let the same be heard on the basis of the available papers viz. , the memorandum of Appeal, the Stay Application and any other papers that may have been used, before the learned single Judge. Let this appeal be listed for hearing two weeks after the Puja Vacation. Since Ms. Rina Banerjee has appeared on behalf of the respondents, let the appeal be treated an ready as regards service on appearance and let it be fixed for hearing two weeks after the Puja Vacation. Filing of paper books and other formalities are dispensed with. " (Quoted but emphasis by bold fonts is by this Court) (14.) NOW on 8.8.2006, a Division Bench headed by the then Honble the Chief Justice, Sri V. S. Sirpurkar, directed the filing of paper-books whereafter they have been filed in this case. (15.) MR. Debabrata Karan, learned counsel appearing for the State-respondents has vehemently contended, on the basis of three judgements, that a second Writ Petition being W. P. 6262 (W) of 2004 was not at all maintainable because after dismissal of the case on 23.3.2004 dismissing the Application for Restoration, the matter had attained finality. He submits that the Order dated 23.3.2004 is a clear pointer to the fact that a serious fraud was played by the Appellant and consequently, taking into consideration that the Application for Restoration had been dismissed with Costs, it should therefore be deeemed to have been dismissed on merits also. In support of the aforementioned contention, mr. Karan relies upon the case of Bhaurao Dagdu Paralkar v. State of maharashtra and Ors. reported in (2005) 7 SCC 605 . (16.) WE are unable to apply the ratio of the aforementioned judgement because the said judgement proceeds on the interpretation on the words fraud, deceit, and injury practised on the person deceived. According to the learned counsel, and with reference to Paragraph-11 of the said judgement, a fraud is a conduct either by letter or words which induces the other person or Authority to take a definite determinative stand. According to the learned counsel, in this case also by producing the aforementioned letter of Shri S. Nath, counsel, the Appellant had committed fraud. (17.) WE have gone through the Letter dated 22.1.2004 (Quoted above)and we find that it is a communication of an Advocate namely, Mr. According to the learned counsel, in this case also by producing the aforementioned letter of Shri S. Nath, counsel, the Appellant had committed fraud. (17.) WE have gone through the Letter dated 22.1.2004 (Quoted above)and we find that it is a communication of an Advocate namely, Mr. S. Nath which attempted to highlight the Order dated 22.1.2004 by which the Restoration Application was directed to appear on 5.2.04 with an observation that "under such circumstances for the balance of convenience, status quo already granted be maintained until further orders of the Court. (18.) WE do not wish to comment on the conduct of the Lawyer who used the words that "his Lordship has been pleased to restore the case by recalling the order of dismissal dated 6.8.2003" because neither the advocate has been made a party in this Appeal nor does this Court intend to go into that aspect primarily for the reason that for the conduct of a lawyer, a litigant should not suffer. (19.) THOUGH this court does not appreciate such a conduct but taking into consideration the submissions of Mr. Indranil Chakraborty, we feel that the scales of justice should tilt in favour of a person who has been deprived of an opportunity of hearing on merits of the case because of the conduct of his/her lawyer. (20.) WE therefore merely notice the submissions of Mr. Indranil chakraborty who has repeatedly submitted that the Lawyer who had written the letter dated 22.1.04 perhaps misunderstood the implications of the words used in the Order dated 22.1.04 by which and for the balance of convenience, the status quo already granted was ordered to be maintained till further orders of the Court and proceeded to assume that the case had been restored. We merely notice this submission but we refrain from going into the same as we are told, that the Order dated 22.1.2004 has not been challenged in Appeal. (21.) HOWEVER for the fault a Lawyer and/on conduct of a Lawyer even the Supreme Court has repeatedly held that a party should not suffer. Reference in this context may be made to the case of Smt Lachi Tewari and Ors. v. Director of Laud Records and Ors. reported in AIR 1984 SC 41 and the case of Lajpat Raiv. State of Punjab reported in AIR 1981 SC 1400 (Paragraph 3). (22.) MR. Reference in this context may be made to the case of Smt Lachi Tewari and Ors. v. Director of Laud Records and Ors. reported in AIR 1984 SC 41 and the case of Lajpat Raiv. State of Punjab reported in AIR 1981 SC 1400 (Paragraph 3). (22.) MR. Karan then cited the judgement passed in the case of Ishwar dutt v. Land Acquisition Collector and Anr. reported in 2005 (7) SCC 190 in support of his contention that the first Writ Petition having attained finality, the principles of res judicata applied and that the said principle included the principle of estoppel. (23.) WE have no hesitation in summarily rejecting the aforementioned contention and holding that the said judgement has no application in the facts of this case because the first writ petition was never adjudicated on merits and therefore, a second Writ Petition was certainly maintainable. In this context we refer to the judgements passed by the Honble Supreme Court, as cited by the learned counsel for the Appellants, and the first of these judgements are in the case of hoshnak Singh v. Union of India and Ors. reported in AIR 1979 SC 1328 . Paragraph 10 of the said judgement clearly lays down that it is incontrovertiblie that where a petition under Article 226 is dismissed in limine without there being a speaking Order, such a dismissal would not attract the bar of res judicata to a subsequent Writ Petition on the same cause of action. (24.) THE second judgement cited by the learned counsel is the case of B. Prabhakar Rao v. State of Andhra Pradesh reported in AIR 1986 SC 210 (paragraph 23) which corresponds to 1985 (supp) SCC 432 at page 464 (paragraph 22). In the said judgment also, the same principle has been reiterated and it lays down that the dismissal in limine of a Writ Petition cannot possibly be a bar to a subsequent with petition. (25.) FOR the aforementioned reasons we are of the view that the case of the Appellant, having been dismissed at the threshold for non appearance and for default, could not possibly have prevented her from filing a second writ petition on the self same cause of action notwithstanding the dismissal of the Restoration Application, in the interregnum for the conduct of a Lawyer. (26.) FOR the foregoing reasons we are of the view that the impugned order dated 2. 4. 2004 passed in W. P. 6262 (W) of 2004 has to be set aside so as to enable the Appellant to agitate the matter on merits. Consequently the said Order is set aside and the matter i. e. W. P. 6262 (W) of 2004, is remanded for rehearing of the case on merits. (27.) AFTER the aforementioned Order was dictated, learned counsel for the Appellant prayed for a direction for early disposal. (28.) WE cannot pass such an Order but we can certainly make a request to the learned single Judge dealing with the matter to dispose of the same as expeditiously as possible, subject to other engagements that may be in the determination of his Lordship. (29.) THE appeal is thus accordingly allowed. (30.) AS a consequence of this judgement no further order is required to be passed on the Interlocutory Application being CAN No. 3630 of 2004 which was filed for Stay of the Order dated 2.4.2004. It will be deemed to have been disposed of together with this judgement. Appeal allowed.