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2012 DIGILAW 1014 (CAL)

Hem Kumar Barman v. STATE OF WEST BENGAL

2012-12-05

HARISH TANDAN

body2012
Judgment :- Harish Tandon, J. These two writ petitions are filed challenging the inquiry report dated September 27, 2007 whereby and whereunder, the Ex-Census Certificate issued to the petitioners were found to have been issued mistakenly. The petitioner of each writ petitions claimed to have worked as enumerator in the year 1981 in the Census Department under Gajole Block Development Officer. The said authority issued a certificate and on the basis thereof, each of the petitioners intended to register themselves with the District Employment Exchange, Malda as Ex-Census Worker/Enumerator under Exempted Category. The petitioners were, thereafter, informed that to avail the benefit as Ex-Census Worker/Enumerator, each of the petitioners has to register their respective names in the office of the Director of Employment, Labour Department, Government of West Bengal. Since, no action was taken in spite of the application being made to the competent authority, the petitioner of each writ petitions jointly moved before this Court by filing a writ petition being W.P. No. 3628 (W) of 2001. The said writ petition was disposed of with a direction upon the Director of Employment, Labour Department, Government of West Bengal to consider the prayer for registration of the names of the petitioners as Ex-Census Worker in the Exempted Category. Subsequently, the petitioners were registered as Ex-Census Worker in the Exempted Category and identity card to that effect was also issued to each of the petitioners. It appears from the averment made in the writ petition that prior to the registration of the names of each of the petitioner, there was a fullfledged inquiry by the District Magistrate, Malda and ultimately, it was found that each of the petitioners did work in 1981 Census. Subsequently, the name of each of the petitioners was sponsored by the Employment Exchange to the Malda District Primary School Council under the Exempted Category as Ex-Census Worker/Enumerator. The petitioner was allowed to submit the bio-data form and was permitted to sit in the written test examination on May 25, 2003. Each of the petitioners was found successful in the said selection process and the name was included in the panel prepared for the Exempted Category. The Chairman, District Primary School Council sought for a report from the Block Development Officer, Gajole relating to the status of each of the petitioners as Ex-Census Worker. Each of the petitioners was found successful in the said selection process and the name was included in the panel prepared for the Exempted Category. The Chairman, District Primary School Council sought for a report from the Block Development Officer, Gajole relating to the status of each of the petitioners as Ex-Census Worker. Neither any report nor any step was taken for appointment of the petitioners by the respective authorities which constrained the petitioners to jointly move the writ petition before this Court being W.P. NO. 14005 (w) of 2003. By order dated September 19, 2003, the said writ petition was disposed of directing the Block Development Officer to complete the process of verification within 8 weeks from the date of the communications of this order. Ultimately, the Block Development Officer submitted a report doubting the genuinity of the certificate relied upon by the petitioner. Challenging the said report, the petitioner jointly moved a writ petition being W.P. No. 17950 (w) of 2003 before this Court. The said writ petition was disposed of with the direction upon a District Magistrate, Malda to inquire into the matter and if it is found that the certificate is genuine, the writ petitioners shall be given an appointment with a retrospective effect i.e. from the date when last empanelled candidate was given appointment. Since the District Magistrate did not initiate an inquiry as directed in the said writ petition, a contempt application was taken out being CPAN no. 1655 of 2005 which came up for disposal on May 18, 2006 and on the basis of the inquiry report submitted by the District Magistrate, Malda, it is recorded that the certificate issued to each of the petitioner was genuine. But the same was issued by the Block Development Officer under the misconception that the petitioner did work as Ex-Census/Enumerator. Assailing the said order, an appeal being F.M.A No. 854 of 2007 was filed jointly by each of the petitioner of the respective writ petition. While allowing the said appeal, the Division Bench directed the District Magistrate, Malda to make a fresh inquiry after taking into consideration, attendance register and the acquittence role/ payment sheet. It was further recorded that such inquiry shall be restricted to these two documents as the District Magistrate, Malda has found the certificate to be genuine. While allowing the said appeal, the Division Bench directed the District Magistrate, Malda to make a fresh inquiry after taking into consideration, attendance register and the acquittence role/ payment sheet. It was further recorded that such inquiry shall be restricted to these two documents as the District Magistrate, Malda has found the certificate to be genuine. In spite of the aforesaid direction, the inquiry was not contemplated and completed within the period stipulated therein, another contempt application was taken out which was disposed of on August 25, 2010 as in the said contempt proceeding, the report was submitted by the District Magistrate, Malda and a liberty was given to the each of the petitioners to challenge the validity and correctness of the said inquiry report in a validly instituted proceeding. The instant writ petition is the outcome of the aforesaid liberty but this time, each of the writ petitioners have challenged the said inquiry report by filing the aforesaid writ petitions independently. Mr. Ashok Dey, the learned Advocate appearing for the petitioner of the said writ petitions vehemently submits that if the Employment Exchange has registered the petitioner after verifying the certificates, the certificates cannot be questioned by another authority and placed reliance upon an unreported judgment rendered in case of Mijanur Rahaman vs. State of West Bengal & ors (W.P. No. 10807 (W) of 2011 decided on 06.09.2011). It is further submitted that the authorities have found the certificates to be genuine and, therefore, it could not be questioned subsequently. Mr. Kamalesh Bhattacharya, the learned Additional Government Pleader appearing for the state-respondents submits that an inquiry was conducted in terms of the order of this Court and the inquiry authority have found that the certificate issued under the misconception or at best being mislead by the petitioners. He strenuously submits that even if the Chairman, District Primary School Council could not have doubted the issuance of the certificates but the aforesaid Act got sanctioned by an order of this Court passed in the writ petition initiated by the petitioner and as such, the finding of the inquiry authority cannot be questioned on that ground. He strenuously submits that even if the Chairman, District Primary School Council could not have doubted the issuance of the certificates but the aforesaid Act got sanctioned by an order of this Court passed in the writ petition initiated by the petitioner and as such, the finding of the inquiry authority cannot be questioned on that ground. Lastly, he submits that the petitioner could not produce any document from which it would be evident that the finding recorded by the inquiry authority is perverse and as such, this Court should not interfere with the impugned report in exercise of the power of judicial review. The learned Advocate appearing for the District Primary School Council, Malda adopts the submission of Mr. Bhattacharya. Having considered the submissions made above, the inquiry report which is impugned in the writ petition is the resultant effect of the various order being passed in an earlier writ petition. It is no doubt true that the Chairman, District Primary School Council, Malda have no authority to challenge the recording of satisfaction of the another authority regarding the varsity of the contents of the certificate except the genuinity thereof. The subjective satisfaction of the another authority cannot be questioned by the other authority as it does not have the appellate power, the Co-ordinate Bench in case of Mizanur Rahaman (supra) held: “ After considering the submissions made by the learned advocates for the parties, this Court is of the view that when the concerned Employment Exchange has registered the name of the petitioner under the ex-census category, it is the concerned Employment Exchange alone which can doubt the eligibility of the petitioner of being so empanelled; for it is the concerned Employment Exchange which has empanelled the petitioner upon scrutiny of his particulars and it is not within the competence of the Council or for that matter any other authority of the State to doubt such competence of the concerned Employment Exchange. In this regard, the observations made by this Court in an earlier order passed in W.P. 6339 (W) of 2004 dated 21st April, 2004, may be relied upon. The said judgment and order was rendered by this Court in a case where the petitioners claiming to be land evictees and registered as exempted category candidates by the concerned Employment Exchange, were denied to be treated as such by the concerned District Primary School Council. The said judgment and order was rendered by this Court in a case where the petitioners claiming to be land evictees and registered as exempted category candidates by the concerned Employment Exchange, were denied to be treated as such by the concerned District Primary School Council. The contention of the Council was negated by the Court with certain observations, as rendered in the judgement and order dated 21st April, 2004.” There is a special fact in the present case. In the first writ petition, in which a direction was made upon the Director of Employment, Labour Department, Government of West Bengal to consider the application of each of the petitioners relating to their enrollment under the Exempted Category as Ex-Census Worker, the petitioners were registered under the Exempted Category as Ex-Census Worker on the basis of the certificate issued by a competent authority. Subsequently, in another writ petition, the District Magistrate, Malda was directed to make an inquiry relating to the genuineness of the certificate. The petitioner did not challenge the said order and accepted the same which could be inferred from the filing of the contempt application by the petitioner. Having accepted the order by which an inquiry is contemplated, the petitioner cannot take a rebound and contend that it was beyond the competence of an authority of the District Magistrate to make an inquiry after registration of the name of the petitioners with the Employment Exchange of Exempted Category. After having acquiesced and accepted the order, the petitioners have submitted themselves to resultant of the inquiry report. In a subsequent writ petition, although the authorities candidly took the stand that the certificate was genuine but the same was issued after being misled by the petitioner. The Court ordered the further inquiry to be made on the basis of the two documents namely the attendance register and the acquittence role/payment sheet. The inquiry report impugned in the writ petition reveals that the attendance register does not reflect the name of each of the petitioners but shows the name of some other persons. On perusal on the impugned report, it is categorically observed that Hem Kumar Barman, the petitioner in W.P. No. 21447 (W) of 2010 claim to have worked at Mauza JL No. 253 (enumeration block-202, house listing block-201) but the attendance register shows the name of one Santanu Sarkar instead of the said petitioner. On perusal on the impugned report, it is categorically observed that Hem Kumar Barman, the petitioner in W.P. No. 21447 (W) of 2010 claim to have worked at Mauza JL No. 253 (enumeration block-202, house listing block-201) but the attendance register shows the name of one Santanu Sarkar instead of the said petitioner. Similarly, the name of Mosimuddin Sarkar, the petitioner in W.P. No. 25756 (W) of 2010 does not find place in the attendance register whereas the name of one Rahimuddin Sarkar is recorded therein. The aforesaid finding is made on the basis of the relevant documents which cannot be disbelieved in absence of any counter documentary evidence. Therefore, I do not find any merit in both the writ petitions. Both the writ petitions are dismissed. However, there shall be no order as to costs.