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2010 DIGILAW 64 (CAL)

STATE OF WEST BENGAL v. Pradip Kumar Das

2010-01-28

B.BHATTACHARYA, M.S.SHAH

body2010
JUDGMENT Shah, C.J. 1. THIS suo motu proceeding was initiated when the attention of the Court was invited to the fact that the writ petitioner in W.P. No.761 (W) of 2005 respondent in MAT. No. 3126 of 2005 had made specific allegations in Paragraph-20 of the writ application filed in December, 2004 that after joining Collins Institute on 14th January, 2004 he had been working for 11 months without salary though, in fact, writ petitioner left service of Collins Institute in May 4, 2004 and, thereafter, got appointment in another school being Sridharnagar Sailendra Vidyapith, P.S. Patharpratima, Dist. South 24-Parganas on 12th May, 2004 and since then had been working there. 2. IN the affidavit dated 11th January, 2010 respondent Pradip Kumar Das aged 42 years residing at Village Gangapur, P.S. Patharpratima, Dist. 24-Parganas (South) has stated that he had deliberately not made any false statement and has tendered his unqualified apology in the event it transpires that any wrong statement was made by him, that he had no intention whatsoever to prejudice or interfere with the due course of judicial proceeding or to obstruct the administration of justice. It is stated that his only intention in filing the writ petition was to receive the salary for the period for which he had worked in the Collins Institute prior to his joining the present school but due to miscommunication and the consequent mistake, the statement in question was typed out in Paragraph-20 of the petition because the writ petitioner Pradip Kumar Das along with 3 other teaching staff members of Collins Institute had jointly engaged the same learned Advocate to file the writ petitions so that they could get the remuneration against services rendered in the above school. It was because the writ petitioner is staying in the remote village called Patharpratima that on his behalf his other colleagues who have worked in the Collins institute continued to take the papers to the lawyer and though the writ petitioner had instructed his colleagues to inform the learned lawyer, identical writ petitions can be drafted for all four persons. We may point out that writ petitioner Pradip Kumar Das and three other persons namely Sukamoy Panigrahi, Bholanath Paik and Ashoke Kr. We may point out that writ petitioner Pradip Kumar Das and three other persons namely Sukamoy Panigrahi, Bholanath Paik and Ashoke Kr. Seth all filed separate writ applications on the same day i.e. 24th December, 2003 through the same lawyer questioning denial of approval of the panel for the post of Assistant Teachers in Collins Institute, Kolkata, in spite of having been selected by the Interview Committee. All the four writ petitions were disposed of by the same learned Single Judge by orders passed on the same day i.e. 24th December, 2003, after hearing the State respondent and directing the respondent to approve the panel. In the case of all the four persons including the petitioner, the District Inspector of Schools approved the respective panels for the post of Assistant Teacher in different subjects on the same day i.e. 2nd January, 2004 and in each such panel each of the four concerned writ petitioner was the first empanelled candidate. The Secretary of the School issued the appointment letter in favour of the respective writ petitioners on the same day i.e. 6th January, 2004. All the four writ petitioners joined the post of Assistant Teacher in the respective subject in the Collins Institute on the same day i.e. 14th January, 2004. On the next day i.e. on 15th January, 2004, the Secretary of the Collins Institute sought for approval of appointment of all the four writ petitioners from the District Inspector of Schools. 3. WRIT petitioner Pradip Kumar Das last worked and rendered his service in the Collins Institute, Kolkata till May 4, 2004 and resigned from the Collins Institute on May 5, 2004 and joined the service as Assistant Teacher at Sridharnagar Sailendra Vidyapith, P.S. Patharpratima, Dist. 24- Parganas (South) where the writ petitioner was and is the permanent resident, but the other three writ petitioners continued to render services as Assistant Teacher in Collins Institute at Kolkata. 4. THE applications for leave to appeal and appeal being M.A.T. No. 1371 of 2004 to 1374 of 2004 F.M.A. No. 1914 to 1917 of 2004) filed by the Teacher in-Charge and other two teachers of the Collins Institute against identical order dated 24th December, 2003 were dismissed by the Division Bench on merit on the same day i.e. 3rd September, 2004 and the appeals were directed to be stuck off from the file. In spite of identical judgment dated 24th December, 2003 of the learned Single Judge and dismissal of the applications for leave to appeal by identical orders dated September 3, 2004 by the Division Bench, none of the four petitioners were paid any salary for the period from 14th January, 2004 when all the four writ petitioners had joined service in the Collins institute. On the basis of the orders dated January 2, 2004 of the District Inspectors of School approving the pane! for the post of Assistant Teacher in the four respective subjects in which each of the four petitioners was placed as the first empanelled candidate in the respective subjects, the salary was not being released to the four petitioners on the ground that their appointment to the post of Assistant Teachers in the Collins Institute was not approved by the Secondary Education Board. All the four writ petitioners, therefore, filed separate writ petitions on the same day, i.e., on 9th December, 2004 which were disposed of by identical orders dated March 2, 2005 in terms of the following reasoning and directions:- "This writ application is directed against the action of the respondent No. 3 in not approving the appointment of the petitioner who has been appointed Assistant Teacher of....Collin Institute at 140, Dharmatala Street, Calcutta, hereinafter referred to as 'the School'. It appears that an appeal being F.M.A.......of 2004 was preferred against the order dated 24th December, 2003 of His Lordship the Hon'ble Mr. Justice Maharaj Sinha. The appeal having been rejected, there can be no ground for not approving the appointment of the petitioner. After hearing learned Counsel appearing on behalf of the respective parties and considering the materials-on-record, I am of the view that when the panel of selected candidates has been approved pursuant to an order of this Hon'ble Court, appeal from which has been rejected by the Hon'ble Appeal Court, approval of appointment of the petitioner cannot be withheld. The respondent District Inspector of Schools shall immediately approve the appointment of the petitioner. All arrears shall be released to the petitioner within two months from the date of communication of this order......" 5. AGGRIEVED by the above directions, the State authorities preferred mandamus appeals and the Division Bench passed orders dated 28th August, 2006 on the applications for condonation of delay, on the appeals and applications for stay. All arrears shall be released to the petitioner within two months from the date of communication of this order......" 5. AGGRIEVED by the above directions, the State authorities preferred mandamus appeals and the Division Bench passed orders dated 28th August, 2006 on the applications for condonation of delay, on the appeals and applications for stay. In ail four matters the Division Bench first referred to the controversy about the direction dated 24th December, 2003 in favour of all the four petitioners for granting approval to the panel, which order was not challenged by the State and still did not approve the appointment order issued in favour of the four petitioners. Thereafter, the Division Bench referred to the controversy between the State authorities on the one hand and all the four petitioners on the other hand on the question whether the services were being rendered by the four petitioners in the Collins Institute. The contention of the State was set out by the Division Bench in the following terms:- ".........The learned Senior Counsel appearing on behalf of the State says that the order of Justice Banerjee is also vitiated by fraud as the learned Judge had relied on an earlier order passed by Justice Maharaj Sinha dated 24th December, 2003 which itself is a nullity. According to the teamed Counsel it is his case that even before this Court the teachers have made false averments that they have been working up to the month of May and/or July after their appointment. The learned Counsel is at pains to point but that these teachers are not working at all excepting for the brief period of four months or six months, as the case may be........" 6. THE Division Bench further observed and gave the following directions:- "However, in so far as the stay is concerned we would not be in a position to grant any stay. Admittedly, appointment orders have been given to all these four teachers. Admittedly for some time they have actually worked. Now the learned Counsel on behalf of the respondent-teachers say that they are working even today whereas the contention of the teacher-in-charge is that they are not so working. Even the State Government says that they are not working at all. That would be a question of fact. Admittedly for some time they have actually worked. Now the learned Counsel on behalf of the respondent-teachers say that they are working even today whereas the contention of the teacher-in-charge is that they are not so working. Even the State Government says that they are not working at all. That would be a question of fact. In the wake of an admitted situation that these teachers were actually given the appointment orders in pursuance of the earlier order passed by Maharaj Sinha, J. and further that these teachers worked at least up to May, 2005 or as the case may, July, 2005 we would choose not to stay the order completely, instead we direct that: (i) stay shall relate to fifty per cent of the back wages, (ii) they shall be paid their salary for the current months from 1 st September, 2006 only on condition that all of them swear an affidavit before this Court asserting therein that they are presently working in the school and secondly, in case the appeal is allowed, they would return all the salaries earned by them with 7% of simple interest within three months of the judgment of the Appellate Court without the State Government having to start recovery proceedings against them. This affidavit shall be in the form of an undertaking to the Court. If these orders are complied with within two weeks from today, then the teachers would be entitled to their salaries in the light of the observations made by us in this order......." Identical orders were, thus, passed in all the four appeals and stay applications. At the hearing of this suo motu proceeding, the learned Counsel for the State authorities submits that since writ petitioner Pradip Kumar Das did not point out that he had resigned from Collins Institute and he had joined another school in another District, the writ petitioner had deliberately misled the Court. It is also submitted that the writ petitioner was still interested in coming back to the Collins Institute even after having joined as an Assistant Teacher in South 24-Parganas District and, therefore, he had even given an Advocate's notice against the respondent for contempt. 7. It is also submitted that the writ petitioner was still interested in coming back to the Collins Institute even after having joined as an Assistant Teacher in South 24-Parganas District and, therefore, he had even given an Advocate's notice against the respondent for contempt. 7. ON the other hand, the learned Counsel for the respondent (writ petitioner Pradip Kumar Das) submitted that the mistake in Paragraph-20 of the Writ Petition No.761 of 2005 arose because all the four petitions were filed simultaneously through the same lawyer who was instructed by the three other colleagues who were residing in Kolkata, but the petitioner was residing in a remote place in South 24-Parganas District and, therefore, identical petitions came to be filed for all the four writ petitioners. Writ petitioner Pradip Kumar Das did have a cause of action for filing the writ petition because he had actually rendered services in the Collins Institute from 14th January to 4th May, 2004 and the salary for the said period was not paid to him. The salary was not paid on account of non- approval of his appointment, just as salary was not being paid to three other petitioners on the same ground. In other cases also, all the previous petitions were filed on the same date and orders were passed by the learned Single Judge on the same day, i.e., on 24th December, 2003 and these petitions were also heard simultaneously and disposed of by the learned Single Judge on 2nd March, 2005. It is submitted that the instructions for contempt notice, were also given by the writ petitioner's three other colleagues to the same common Advocate and the same common Advocate was appearing for the petitioners in their capacity as respondents in the M.A.T. appeals. Contempt application being C.P.N. No. 1020 of 2006 filed by the writ petitioner for alleged violation of the order dated 2nd March, 2005 passed by the learned Single Judge was not pressed by the writ petitioner and, accordingly, the same was dismissed as not pressed on 7th September, 2006. Thus, no rule of contempt was issued on the said application. This supports the case of the writ petitioner that he had no mala fide intention to mislead the Court. It is also pointed out by the learned Counsel that the District Inspector of Schools has approved appointment of all the other three petitioners on November, 30, 2006. Thus, no rule of contempt was issued on the said application. This supports the case of the writ petitioner that he had no mala fide intention to mislead the Court. It is also pointed out by the learned Counsel that the District Inspector of Schools has approved appointment of all the other three petitioners on November, 30, 2006. However, after the Division Bench passed identical orders on the four stay applications on 28th August, 2006, writ petitioner Pradip Kumar Das did not file any affidavit or undertaking about having rendered service in the Collins Institute because he has been presently working in another school and, thus, Pradip Kumar Das has never taken any advantage of the orders passed in his favour, it is also stated by the learned Counsel for writ petitioner Pradip Kumar Das that in order to make a clean breast of himself and to show his bona fides he is not claiming any salary from the State authorities or the Collins Institute even for the period from 14th January to 4th May, 2006 when he had rendered services in the Collins Institute, though the salary for the said period would be a substantial amount of Rs.33,000/- (thirty three thousand) approximately. 8. 8. AFTER hearing the learned Counsel for the parties and after recording the above statement made by the learned Counsel for respondent Pradip Kumar Das, on instructions of the respondent who was present before the Court and having carefully considered the explanation given by the said respondent in his affidavit dated 11th January, 2010 and explanation given by the learned Counsel at the hearing of this proceeding, we are satisfied that the entire mistake arose on account of the fact that the four persons including the writ petitioner (present respondent) were simultaneously prosecuting their remedy for obtaining approval of the panels in which they were included for the appointment to the post of Assistant Teacher in Collins Institute right from the year 2003 and the orders in their favour were passed simultaneously, though on separate writ petitions, by the same learned Single Judge on 24th December, 2003 and alt the subsequent events are also clearly shown to have taken place on the same day i.e., approval of the respective panels by the District Inspector of Schools on 2nd January, 2004, in all the four cases, appointment letters were issued by the Secretary of Collins Institute on 6th January, 2004, in all four cases all the four persons joined as Assistant Teacher in Collins Institute on 14th January, 2004, the Secretary of the said School sought approval for appointment of all the four persons on 15th January, 2004 and subsequently filed writ petitions which came to be disposed of on the same date i.e., on 2nd March, 2005 and the stay applications in the appeals filed by the State also were heard by the Division Bench on the same day i.e., on 28th August, 2006. In view of the above factual background and the remorse shown by respondent-Pradip Kumar Das and the statement that he does not claim any salary even for the period from 14th January, 2004 to 4th May, 2004 during which period he had rendered service In the Collins Institute, we are of the view that the suo motu contempt proceedIng Initiated against respondent-Pradip Kumar Das deserves to be dropped. We, accordingly, discharge the rule issued In C.R. No.1 of 2010. The suo motu contempt proceeding stands closed. Bhattacharya, J.: I agree. Later-After the judgment was delivered In Court, learned Counsel for the parties prayed for urgent photostat copy of the judgment. We, accordingly, discharge the rule issued In C.R. No.1 of 2010. The suo motu contempt proceeding stands closed. Bhattacharya, J.: I agree. Later-After the judgment was delivered In Court, learned Counsel for the parties prayed for urgent photostat copy of the judgment. Let urgent photostat certified copy of this judgment, if applied for, be given to the learned Counsel for the parties.