Research › Search › Judgment

Calcutta High Court · body

2009 DIGILAW 790 (CAL)

STATE OF WEST BENGAL v. Supriya Kar

2009-10-28

KISHORE KUMAR PRASAD, PRANAB KUMAR CHATTOPADHYAY

body2009
Judgment :- (1.) This application has been filed in connection with the appeal preferred from the order passed by a Learned Judge of this Court whereby and whereunder the said learned Judge passed an interim order on 9th October, 2009 in the writ petition filed by the respondent No. 1/writ petitioner pending final disposal of the said writ petition on merits. (2.) The respondent No. 1/writ petitioner is a retired Government Officer and was appointed by the Board of Directors of North Bengal State Transport Corporation on contract basis initially for a period of one year by the notification dated 27th April, 2007 issued by the Additional Chief Secretary to the Government of West Bengal, Transport Department. (3.) By the subsequent notification dated 8th April, 2008, the term of appointment of the said respondent No. 1/writ petitioner as Chairman of North Bengal State Transport Corporation on contract basis was extended for a further period of two years with effect from 2nd May, 2008. The aforesaid notifications dated 27th April, 2007 and 8th April, 2008 are reproduced here in below : "Government of West Bengal Transport Department Writers Buildings Kolkata-700001 No.T483-WT/TR/O/11B-13/07 Kolkata the 27th April, 2007. NOTIFICATION In supersession of earlier orders and in exercise of the power conferred by sub-section (2) of Section 5 of the Road Transport Corporation Act, 1950 (Act of 1950); as amended from time to time and read with Sub- Rule (1) of rule 4 of the West Bengal State Transport Corporation Rules, 1960 the Governor is pleased hereby to appoint Shri Supriya Kar, IAS retired on 28.02.2006 as Special Secretary, Agriculture Department, Government of West Bengal as full time Chairman of the Board of Directors of NBSTC on contract basis for a period of one year. The order is to take effect from 2.5.2007. He is appointed on usual terms applicable for a retired officer as may be fixed by Finance Department. This order issues with the concurrence of Finance (Audit) Department, Gr. P U.O.No.1678 dated 27.04.2007. By order of the Governor, Sd/- Sumantra Chowdhury Additional Chief Secretary to the Govt. of W.B." Government of West Bengal Transport Department, Writers Buildings, Kolkata-1. No.1258-WT/TR/0/11B-13/07. Dt. 8.4.2008. NOTIFICATION In continuation of this Deptts Notification No.1483-WT Dt. This order issues with the concurrence of Finance (Audit) Department, Gr. P U.O.No.1678 dated 27.04.2007. By order of the Governor, Sd/- Sumantra Chowdhury Additional Chief Secretary to the Govt. of W.B." Government of West Bengal Transport Department, Writers Buildings, Kolkata-1. No.1258-WT/TR/0/11B-13/07. Dt. 8.4.2008. NOTIFICATION In continuation of this Deptts Notification No.1483-WT Dt. 27.4.07 and in exercise of the power conferred by sub-section (2) of Section 5 of the RTC Act, 1950 (Act of 1950) as amended from time to time and read with Sub-Rule (1) of rule 4 of the West Bengal State Transport Corporation Rules, 1960, the Governor is pleased hereby to extend the term of appointment of Sri Supriya Kar, Chairman, NBSTC on contract basis for further two (2) years w.e.f. 02.05.2008. By order of the Governor. Sd/-Sumantra Chowdhury. Addl. Chief Secretary to the Govt. of W.B." (4.) The said Additional Chief Secretary, however, by the order dated 30th September, 2009 informed the respondent No. 1/writ petitioner that his term of contractual engagement as Chairman, North Bengal State Transport Corporation shall stand completed on 11th October, 2009. The aforesaid order dated 30th September, 2009 is set out hereunder : "Government of West Bengal Transport Department Writers Buildings Kolkata ORDER No.4148-WT/TR/0/11 B-13/07 Dated 30th September, 2009. In exercise of the powers conferred upon by proviso to Sub-rule 1 of Rule 4 of the West Bengal State Transport Corporation Rules, 1960 framed under R.T.C Act, 1950 and in modification of the Notification No. 1258-WT/TR/O/11 B-13/07 dated 8th April, 2008 of the Transport Department, Government of West Bengal, the Governor is hereby pleased to direct that the term of contractual engagement of Shri Supriya Kar, IAS (Retired), as Chairman, North Bengal State Transport Corporation shall stand completed on 11th October, 2009 (A.N.). The Governor is also hereby pleased to direct -that Shri Supriya Kar will demit his charge to the Divisional Commissioner, Jalpaiguri Division on 12th October, 2009 (forenoon). This issues with the concurrence of the Finance Department vide their U/O No. 231 Group R dated 24th September, 2009. This is in the interest of public service. By order of the Governor. The Governor is also hereby pleased to direct -that Shri Supriya Kar will demit his charge to the Divisional Commissioner, Jalpaiguri Division on 12th October, 2009 (forenoon). This issues with the concurrence of the Finance Department vide their U/O No. 231 Group R dated 24th September, 2009. This is in the interest of public service. By order of the Governor. Sd/- Sumantra Chowdhury Additional Chief Secretary, to the Government of W.B." (5.) Challenging the aforesaid order dated 30th September, 2009, the respondent No.1 herein filed the writ petition and on 9th October, 2009, learned Single Judge passed an interim order staying the operation of the aforesaid order dated 30th September, 2009. (6.) Being aggrieved by the aforesaid interim order passed by the learned Single Judge, the appellants herein preferred the instant appeal and also filed the present application for stay in connection with the said appeal. (7.) Mr. Sakti Nath Mukherjee, learned Senior Counsel representing the appellants submits that the respondent No. 1/writ petitioner was appointed by the State Government and his service was terminated by a valid order issued on 30th September, 2009. Referring to proviso of Rule 4(1) of the West Bengal State Transport Corporation Rules, 1960, Mr. Mukherjee submits that if the Chairman is a serving or retired officer of the Government, the term of office shall be determined by the State Government. The said proviso to sub- rule (1) of Rule 4 is set out hereunder : "Sub rule(1) of Rule 4 : Provided that if the Chairman is a serving or retired officer of the Government, the term of office shall be such as may be determined by the State Government. (Amendment Notification No.9247-WT dt. 27.8.75)." (8.) Mr. Mukherjee further submits that in terms of Section 8(2) of the Road Transport Corporation Act, 1950, the State Government may terminate the appointment of any Director including the Chairman after giving him notice for such period as may be prescribed. (9.) The learned Senior Counsel of the appellants submits that the impugned order was issued to the respondent No. 1/writ petitioner without attaching any stigma and, therefore, the same cannot be challenged by the respondent No. 1/writ petitioner who was not a permanent employee and appointed by the State Government purely on contractual basis. (10.) Mr. (9.) The learned Senior Counsel of the appellants submits that the impugned order was issued to the respondent No. 1/writ petitioner without attaching any stigma and, therefore, the same cannot be challenged by the respondent No. 1/writ petitioner who was not a permanent employee and appointed by the State Government purely on contractual basis. (10.) Mr. Mukherjee, learned Senior Counsel of the appellants further submits that the learned Single Judge should not have formed any prima facie opinion regarding foundation of the impugned order before filing of the affidavits by the respondent authorities. Mr. Mukherjee further submits that the respondent No. 1/writ petitioner herein belongs to a special class since he is a retired Government employee. (11.) Mr. Mukherjee in support of his aforesaid arguments referred to and relied upon the following decisions of the Honble Supreme Court : 1) The State of U. P. v. Ram Chandra Trivedi, reported in AIR 1976 SC at page 2547-paragraphs 23 and 24 ; 2) Radhey Shyam Gupta v. U. P. State Agro Industries Corporation Ltd. and Anr., reported in (1999)2 SCC at page 21, paragraph-33 ; 3) Union of India and Ors. v. A. P. Bajpai and Ors., reported in (2003)2 SCC at page 433, paragraph-7. (12.) Mr. Arunava Ghosh, learned Senior Counsel representing the respondent No. 1/writ petitioner urged before this Court that the present appeal is not at all maintainable at the instance of the State Government since the State Government is not at all aggrieved by the impugned order passed by the learned Single Judge. (13.) Mr. Ghosh further submits that the respondent No. 1/writ petitioner was appointed as per the statute and the rules and when statute does not permit to prepone the date of termination of the respondent No. 1/writ petitioner, the impugned order dated 30th September, 2009 cannot be sustained in the eye of law. (14.) Mr. Ghosh also submits that temporary and permanent employee stands on the same footing unless rules provide otherwise. Mr. Ghosh invited our attention to various paragraphs of the writ petition where the said writ petitioner alleged bias against the respondent No. 4. Mr. Ghosh also submits that considering the balance of convenience, interim order already granted by the learned Single Judge should be allowed to be continued. (15.) In support of the aforesaid arguments advanced on behalf of respondent No. 1/writ petitioner, Mr. Mr. Ghosh also submits that considering the balance of convenience, interim order already granted by the learned Single Judge should be allowed to be continued. (15.) In support of the aforesaid arguments advanced on behalf of respondent No. 1/writ petitioner, Mr. Ghosh cited following decisions; 1) Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr., reported in AIR 1986 SC at page 1571 - paragraph 98 ; 2) State Bank of India and Ors. v. Amal Kumar Sen and Ors., reported in (1988)1 Cal LJ 83; 3) Deoraj v. State of Maharashtra and Ors., reported in AIR 2004 SC 1975 -paragraph-12 : (2004)2 WBLR (SC) 394. (16.) Mr. Ghosh further submits that the respondent No. 1 herein has right to work which has been illegally curtailed by the order dated 30th September, 2009 and the learned Single Judge was, therefore, justified in issuing the interim order to protect the aforesaid right of the writ petitioner. Mr. Ghosh referred to and relied upon a decision reported in the case of P. K. Chinnasamy v. Government of Tamil Nadu and Ors., reported in AIR 1989 SC at page 78, paragraphs 4 and 5. (17.) The learned Counsel representing the Board supported the order passed by the State Government and adopted the submissions advanced on behalf of the appellants herein. (18.) Mr. Saptangshu Basu, learned Counsel representing the respondent Nd.4 also adopted the arguments advanced on behalf of the appellants and denied the allegations of bias levelled against his client. (19.) Having heard the learned Counsel of the respective parties and considering the facts and circumstances of this case, we are of the opinion that at this stage we should only consider whether the learned Single Judge was justified in granting the interim order pending final disposal of the writ petition. (20.) Mr. Ghosh has urged before this Court that the present appeal is not at all maintainable at the instance of the State Government. We, however, do not agree with Mr. Ghosh and refuse to allow the aforesaid objection since the letter of appointment was admittedly issued to the writ petitioner by the State Government and the impugned order of termination challenged in the writ petition was also issued on behalf of the State Government by the Additional Chief Secretary. We, however, do not agree with Mr. Ghosh and refuse to allow the aforesaid objection since the letter of appointment was admittedly issued to the writ petitioner by the State Government and the impugned order of termination challenged in the writ petition was also issued on behalf of the State Government by the Additional Chief Secretary. Therefore, we hold that the present appeal is very much maintainable at the instance of the State Government. (21.) It has been provided in Rule 4(1) of the West Bengal State Transport Corporation Rules, 1960 that a Chairman of the Corporation shall hold office for a period of three years from the date of appointment. In the present case, undisputedly, the respondent No. 1/writ petitioner was appointed for a period of one year on contract basis as specifically mentioned in the notification dated 27th April, 2007 and thereafter such contractual engagement was extended for a further period of two years with effect from 2nd May, 2008 which was, however, preponed by the impugned order dated 30th September, 2009. The validity and/or legality of the aforesaid order dated 30th September, 2009 is the subject matter of dispute in the writ petition filed by the respondent No.1/writ petitioner herein. (22.) We are now to consider whether the interim order passed by the learned Single Judge should be allowed to be continued and we refuse to decide all other points argued before us at this stage since the writ petition is pending for final adjudication before the learned Single Judge. In the event, the interim order is vacated and the legal battle initiated by the respondent No. 1/writ petitioner is ultimately decided in favour of the said writ petitioner, then the said respondent No. 1/writ petitioner will not suffer any prejudice as the Court can protect the interest of the writ petitioner by issuing suitable directions at the time of final disposal of the writ petition. (23.) On the other hand, if the interim order is not stayed at this stage and the writ petition is ultimately decided against the respondent No. 1/writ petitioner upon holding that the impugned order dated 30th September, 2009 issued by the State Government was proper, legal and valid, then in that event the appellants herein will suffer irreparable prejudice as the said respondent No. 1/writ petitioner will be able to remain in service now for a considerable period if not for the balance period under the contract and will also enjoy all service benefits on the strength of the said interim order. (24.) In the case of Deoraj v. State of Maharashtra (supra), Honble Supreme Court at paragraph 12 specifically observed : "Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent." (25.) In the present case withholding of the interim relief would not tantamount to dismissal of the main writ petition itself and furthermore, it cannot be said that there would be nothing left to be allowed as relief to the petitioner in future even if all the findings are in his favour. The balance of convenience, therefore, does not tilt in favour of the writ petitioner for granting interim relief at this stage as the same would virtually amount to granting the final relief since the term of the office of the writ petitioner under normal circumstances would come to end on 1st May, 2010. (26.) In our opinion, this is not a rare and exceptional case where interim order should be granted as we have already observed that the interests of the writ petitioner can be adequately protected by this Court in future by issuing appropriate directions. (27.) The decision cited by Mr. Ghosh in the case of P. K. Chinnasamy v. Government of Tamil Nadu and Ors. (supra), regarding right to work in lieu of payment is not at all applicable in the facts of the present case as the State Government has not allowed payment of salary to the writ petitioner without allowing him to work. As a matter of fact, the State Government did not allow the writ petitioner to continue in the post of Chairman of the Corporation. (28.) For the reasons discussed hereinabove, we are of the opinion that it is a fit case where the interim order should not be allowed to be continued and, therefore, we vacate the interim order granted by the learned Single Judge on 9th October, 2009 in the writ petition filed by the respondent No. 1/writ petitioner being A.S.T, No. 656 of 2009 (W.P. 17697 (W) of 2009). (29.) We, however, make it clear that we have not expressed any opinion on the issues raised in the writ petition on merits and the learned Single Judge will be at liberty to decide the same strictly in accordance with law. (30.) This application thus stands allowed. (29.) We, however, make it clear that we have not expressed any opinion on the issues raised in the writ petition on merits and the learned Single Judge will be at liberty to decide the same strictly in accordance with law. (30.) This application thus stands allowed. (31.) In view of the aforesaid order, no purpose will be served in keeping the appeal pending. Therefore, by consent of the parties, the appeal is also treated as on days list and disposed of accordingly. (32.) In the facts of the present case, there will be, however, no order as to costs. (33.) On the prayer of the learned Counsel representing the Corporation as well as the appellants herein, time to file affidavit-in-opposition to the writ petition is extended till 3rd November, 2009 and reply thereto, if any, may be filed within 6th November, 2009. (34.) The learned Single Judge is requested to refix the date of final hearing of the writ petition immediately after 6th November, 2009.