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2014 DIGILAW 818 (CAL)

Kabita Pramanik (Patra) v. State of West Bengal

2014-08-26

R.K.BAG, TAPAN KUMAR DUTT

body2014
JUDGMENT : R.K. Bag, J. 1. These appeals no. M.A.T. 1731 of 2011 and M.A.T. 1730 of 2011 at the instance of the writ petitioners arise out of order dated 22.07.2011 passed in W.P. No.11291 (W) of 2009 and W.P. No.11292 (W) of 2009 respectively, by which the Learned Single Judge was pleased to dismiss the writ petitions. It is submitted from the Bar that the facts of both the appeals are similar and as such both the appeals are disposed of by this common judgment. 2. The appellants joined as Anganwadi Helper in the month of November, 2003 under Child Development Project Officer, Khejuri-I Panchayat Samity for doing voluntary work on monthly honorarium of Rs. 500/- and additional honorarium of Rs. 200/- per month. While the appellant of M.A.T. 1731 of 2011 joined in Centre No.119 Katari Bidyarthi Club, the appellant of M.A.T. 1730 of 2011 joined at the Centre No.120, Katari Prathmik Vidyalaya. The case of the appellants is that they were unable to attend to their respective Centres due to political disturbance. On 17.06.2009 the appellants submitted representation to the respondent no.3 praying for necessary arrangement, so that they can report to their respective Centres for performance of duty on the ground that their houses were demolished and they were driven out from their residence. On 22.06.2009 the appellants again submitted representation to the respondent no.3 praying for protection, so that they may report to their respective Centres for performance of duty on the ground that they have been driven out from their residence and they have been residing in the relief camp. On 24.06.2009 the appellants submitted a representation before the respondent no.6 praying for granting leave of 15 days on the ground that they are unable to attend to the Centre due to political disturbance and that they have been residing in the relief camp. Ultimately, the appellants filed separate writ applications praying for providing protection to the appellants to attend the Centres for performance of duty as Anganwadi Sahayika and for direction to the respondents to dispose of the representation submitted by the appellants praying for leave for a period of 15 days. The writ applications were dismissed by the Learned Single Judge by passing order on 22.07.2011. 3. The writ applications were dismissed by the Learned Single Judge by passing order on 22.07.2011. 3. The relevant portion of the order passed by the Learned Single Judge in the writ petitions on 22.07.2011 is as follows:- "The report of the District Magistrate, Purba Medinipur, be kept on record. Upon perusing the same it appears that upon receipt of the writ petitioner's representation dated 17th June, 2009, the District Magistrate had directed the concerned Child Development Project Officer, being the respondent no.6, to look into the matter and came to know that except two Anganwadi workers and three helpers out of 137 Anganwadi workers and 137 helpers, all others continued their services at the concerned Centre, being Centre No.119, Katari Bidyarthi Club. It is further stated by the District Magistrate that the writ petitioner did not leave any communicating address to the concerned Child Development Project Officer. So far as reinstatement of Voluntary Workers is concerned, the latest modified Government Memorandum dated 10th December, 2009, clearly states that no Voluntary Worker can enjoy leave for more than one year. That too, the same is applicable only in case of serious ailments warranting necessity of hospitalization or confinement to bed. The District Magistrate in his report has also specifically stated that as per existing Government Order reinstatement of the writ petitioner is not permitted. Having regard to the report of the District Magistrate, Purba Medinipur, as elucidated above, there is no scope for this Court to grant any relief to the writ petitioner for allowing her to attend the Centre where she was earlier working. The writ petition is liable to be dismissed and is accordingly dismissed." 4. Admittedly, the writ petitions filed by the appellants were disposed of almost after two years of filing of the said petitions and as such the reliefs claimed in the writ petitions have become almost infructuous. Relying on the decision of "Rameshwar and Ors. v. Jot Ram and Ors." reported in AIR 1976 SC 49 , Mr. Anindya Lahiri, Learned Counsel for the appellants, contends that the right of the appellants must be determined by the facts as they exist on the date of filing of the writ petitions and the appellants should not suffer for the delay in the hearing of the writ petitions. Anindya Lahiri, Learned Counsel for the appellants, contends that the right of the appellants must be determined by the facts as they exist on the date of filing of the writ petitions and the appellants should not suffer for the delay in the hearing of the writ petitions. The case of "Rameshwar v. Jot Ram" relates to the right of the tenant to purchase land from the landowner under Section 18(4) of the Punjab Security of Land Tenures Act, 1953. The tenants shall be deemed to have become the owners of the land due to deposit of instalments of payment to the landowners and the subsequent death of the landowner during the pendency of appeal by him against the order for purchase and the devolution of the right of the landowner on his heirs will not affect the rights of ownership already acquired by the tenants under the said Act of 1953. In the instant case the appellants have prayed for leave before the authority concerned on the ground that they were driven out of their houses due to political violence. So, the facts of the said reported case are clearly distinguishable from the facts of the present case where the appellants have prayed for protection to attend the place of work and disposal of the representation for obtaining leave. Accordingly, the ratio of the decision reported in AIR 1976 SC 49 cannot be made applicable in the facts of the present case. 5. Mr. Lahiri, contends that the Learned Single Judge did not give the writ petitioners opportunity to deal with the report submitted by the respondent no.3. Mr. Lahiri further contends that the certificate issued by the Saha Sabhadhipati marked Annexure P-6 to the writ petition was not taken into consideration by Learned Single Judge, wherein Saha-Sabhadhipati of Khejuri-I Panchayat Samity certified that on 08.06.2009 some miscreants burnt the house of the writ petitioner and they were compelled to reside in the relief camp. By annexing photocopy of F.I.R. No.181 of 2009 dated 22.06.2009 of Khejuri Police Station and charge sheet No.97 of 2010 dated 24.06.2010 to the application (CAN 10118 of 2012), Mr. By annexing photocopy of F.I.R. No.181 of 2009 dated 22.06.2009 of Khejuri Police Station and charge sheet No.97 of 2010 dated 24.06.2010 to the application (CAN 10118 of 2012), Mr. Lahiri has urged this court to consider that the husband of the appellant Smt. Kabita Pramanik (Patra) started one criminal case on 22.06.2009 on the allegation that some miscreants armed with lathi, iron rod and other weapons trespassed into the house of the appellants and threatened them with dire consequences and thereby the appellants and members of their family left the house out of fear. The police investigated the case and submitted charge-sheet against some persons under Section 147/148/149/448/323/506 of the Indian Penal Code. According to Mr. Lahiri, the appellants had no intention to abandon the job, but they were compelled to remain absent from the Centres due to political violence. Mr. Lahiri relied on the decision of "G.T. Lad and Ors. v. Chemicals and Fibres India Ltd." reported in AIR 1979 SC 582 in support of his above contention. 6. Mr. Tapan Kumar Mukherjee, Learned Counsel appearing on behalf of the State respondent has referred to the affidavit-in-opposition filed by the District Magistrate, the respondent no.3, wherein it is specifically stated that there was no relief camp in the district during the period under reference and that all 142 Anganwadi Centres under Khejuri-I ICDS Project were running smoothly, but the appellants did not join the Centre for performance of duty and did not disclose their communicating address in order to contact them. 7. Having heard Learned Counsels representing both parties and on consideration of the materials on record, it appears that the criminal case started by the husband of the appellant, Smt. Kabita Pramanik (Patra) on 22.06.2009 does not indicate that the house of the appellants was demolished or burnt and the offence alleged to have been committed in connection with the incident on 08.06.2009 is not serious in nature. The contention of the writ petitioners is that they were compelled to reside in the relief camp and as such they could not attend the Centres for performance of duty. The contention of the writ petitioners is that they were compelled to reside in the relief camp and as such they could not attend the Centres for performance of duty. The certificate issued by Saha-Sabhadhipati of Khejuri-I Panchayat Samity cannot be taken into consideration by this court as the said Saha-Sabhdhipati of Panchayat Samity is not authorised under any law to issue the certificate in respect of criminal offence which is alleged to have taken place in the house of the appellants on 08.06.2009. Nor is the Saha-Sabhadhipati of Khejuri-I Panchayat Samity is a party to the writ petitions. On the other hand, the affidavit-in-opposition submitted by the District Magistrate, the respondent no.3 is a statement on oath given by a responsible officer looking after the administration of the entire district. It appears from the said affidavit-in-opposition of the respondent no.3 that there was no relief camp in the district during the period when the writ petitioners claimed to have stayed in the relief camp after being driven out from their houses due to the incident on 08.06.2009. It also appears from the said affidavit-in-opposition of the respondent no.3 that the writ petitioners did not disclose their communicating address in the office, though they have collected their honorarium from the office till 30.06.2012. In the absence of any reliable materials placed before this court by the appellants, we can safely hold that there was no political disturbance for which the appellants could not attend the Centres for performance of duty. 8. The appellants submitted representation dated 17th June, 2009 before the Child Development Project Officer, the respondent no.6 for the purpose of extending the leave already granted in favour of the writ petitioners. Mr. Lahiri, Learned Counsel has contended that the appellants will be governed by the leave rules of 1984 and not by the leave rules of 2009 as observed by Learned Single Judge in the order under challenge. On consideration of the leave rules of 1984 annexed to the affidavit-in-opposition filed on behalf of the respondent no.1 to 6, it appears that the Anganwadi Workers of ICDS Project are entitled to casual leave for 12 days in a calendar year and leave without honorarium may be sanctioned for six months at a time, but during the said period of absence of any regular Anganwadi Worker, leave substitute may be posted. It appears from the order under challenge that the representation submitted by the writ petitioners on 17.06.2009 was considered by the Child Development Project Officer, the respondent no.6, but the leave was not granted in favour of the writ petitioners/appellants. It is relevant to point out that leave is not a matter of right. The appellants are not holding any post on temporary or permanent basis. They were appointed to discharge the duty as voluntary worker by accepting fixed monthly honorarium. Learned Single Judge did not give any relief to the appellants by allowing them to attend the Centres where they were earlier working. 9. The proposition of law laid down by the Supreme Court of India in paragraph 6 of the decision of "G.T. Lad and Others v. Chemicals and Fibres India Ltd." reported in AIR 1979 SC 582 cited on behalf of the appellants is as follows:- "Under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. Thus whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case." Since the appellants were absent from the Centres for prolonged period of time on the plea of political violence and since the plea taken by the appellants is not substantiated from the materials on record, we are constrained to hold by following the above proposition of law that the appellants had the intention to abandon the voluntary work of Anganwadi Sahayika. In view of the above findings we can not persuade ourselves to interfere in the order passed by Learned Single Judge. 10. Both the appeals are, thus, dismissed. The applications are also disposed of. The order dated 22.07.2011 passed in W.P. No.11291 (W) of 2009 & W.P. No.11292 (W) of 2009 is hereby affirmed. There will be no order as to costs. 10. Both the appeals are, thus, dismissed. The applications are also disposed of. The order dated 22.07.2011 passed in W.P. No.11291 (W) of 2009 & W.P. No.11292 (W) of 2009 is hereby affirmed. There will be no order as to costs. Urgent certified xerox copy of this judgment, if applied for, be given to the parties expeditiously after compliance with all necessary formalities. I agree.