Research › Search › Judgment

Calcutta High Court · body

2015 DIGILAW 288 (CAL)

Jogesh Chandra Mondal v. Union of India

2015-03-26

SANJIB BANERJEE

body2015
JUDGMENT : Sanjib Banerjee, J. The petitioner is justifiably aggrieved by what appears to be a series of errors committed, but the petitioner is not entitled to the relief that the petitioner claims. 2. The petitioner was engaged by Balmer Lawrie & Company Limited which had been taken over by the Union. 3. The petitioner was engaged on temporary basis for more than 240 days at least in three consecutive years in 1990, 1991 and 1992 and claimed in a petition filed in this court in the year 1993 that the petitioner ought to have been considered for regularisation. Apparently, the petitioner was required, by a verbal order of December 26, 1992, to not report to his post and it was such verbal order of removal from engagement that the petitioner challenged in CO 2038 (W) of 1993. For reasons that now do not appear to be comprehensible, it was contended by the employer, despite such company having been taken over by the Central Government, that a petition under Article 226 of the Constitution was not maintainable against it. It appears that in another matter filed by another employee or temporary worker in Balmer Lawrie, a Single Bench of this court held that the company was not an authority within the meaning of Article 12 of the Constitution and, as such, no petition under Article 226 of the Constitution could be maintained against it. 4. In this petitioner's previous petition, CO 2038 (W) of 1993, it was submitted at the final hearing that a final view on the status of Balmer Lawrie had been taken by a Bench of coordinate jurisdiction. Notwithstanding such previous decision being brought to the notice of the single Judge in course of final hearing of CO 2038 (W) of 1993, a contrary view was taken and it was asserted in the judgment of March 27, 2001 that Balmer Lawrie was a State within the meaning of Article 12 of the Constitution and, as such, the petition was maintainable. 5. 5. Having held as such which, with respect, was not open to be done in view of the previous decision on such aspect of a Bench of coordinate determination, the factual matrix of the writ petition was considered and assessed as would be evident from the following substantive paragraph in the judgment: "With regard to the factual score I am satisfied about the explanation given by the respondent company in paragraph 4 of the supplementary affidavit as discussed hereinbefore. Hence, I find that no discrimination has been made to the writ petitioner. Hence, the writ petition is liable to be dismissed on the said ground alone. However, the order of dismissal of this writ petition will not preclude the respondent company to consider the case of the writ petitioner in the available vacancy of wielder-cum-fitter or any suitable post as and when vacancy arises in future. It is, however, made clear that such an observation of this court will not in any way be construed a right in favour of the writ petitioner to be absorbed." 6. It is evident that the writ petition was finally disposed of without affording any relief to the petitioner, save requiring the company to consider the case of the petitioner if a vacancy arose in the relevant post. The above paragraph leaves no manner of doubt, despite the apparent ambiguity in the words, that the writ petition stood disposed of thereby. 7. However, despite the lis coming to an end by virtue of the final order on the merits of the matter as pronounced in the judgment of March 27, 2001, the issue as to whether Balmer Lawrie was a State within the meaning of Article 12 of the Constitution was referred to a "larger Bench" in the following paragraph: "However, since I have referred the question of maintainability in the case of Partha Sarathi Banerjee v. Balmer Lawrie & Co. Ltd. (Matter No. 778 of 1992) to the larger bench this case being C.O. No. 2038 (W) of 1993 is also referred to the larger bench to be constituted by the Chief Justice to consider as to whether the Balmer Lawrie & Co. Ltd., the respondent no.1 above named is a "state" within the meaning of Article 12 of the Constitution of India." 8. It is elementary that decisions in adversarial proceedings are not rendered for academic purposes. Ltd., the respondent no.1 above named is a "state" within the meaning of Article 12 of the Constitution of India." 8. It is elementary that decisions in adversarial proceedings are not rendered for academic purposes. A decision is required to be rendered on any issue which is alive. Issues are said to be alive when the lis continues. When a writ petition is disposed of on facts, the lis itself is brought to an end and there is no live issue therein that can be referred - at least by the order disposing of the matter - even for any academic purpose. It has, thus, to be respectfully concluded that the paragraph following the operative portion of the judgment of March 27, 2001 was otiose and could never have been acted upon. 9. Such paragraph has to be read as if it was not included in the order or that no effect could be given thereto. 10. Unfortunately, since several matters had been filed by other employees or persons temporarily engaged by Balmer Lawrie in this court and there was already a difference of opinion as to whether Balmer Lawrie was a State within the meaning of Article 12 of the Constitution, it was such aspect of the matter that engaged the attention of the Division Bench when the appeals from some of the matters or the reference made of the relevant issue were taken up by the Division Bench. 11. The connected matters were taken up by a Division Bench presided over by the then Chief Justice and, in the opinion rendered on the aspect by the then Chief Justice, the first paragraph of the judgment of January 30, 2002 and the opening sentence of the second paragraph thereof are of some relevance: "All these appeals and writ petitions involve common questions of law, therefore, they are being disposed of by a common judgment. "The main question for determination in all these matters is that whether Balmer Lawrie & Co. Ltd is a "State" within the meaning of Article 12 of the Constitution or not?" 12. It may also be profitable to notice the short cause-title appearing at the head of the judgment. There is a reference to C.O. No. 2038 (W) of 1993 along with the reference to an appeal being FMA 301 of 2000 and several writ petitions mentioned thereunder. It may also be profitable to notice the short cause-title appearing at the head of the judgment. There is a reference to C.O. No. 2038 (W) of 1993 along with the reference to an appeal being FMA 301 of 2000 and several writ petitions mentioned thereunder. It is also appropriate to record the peculiar practise followed in this court of a reference not taking an independent number. In other words, if a reference is made by a single Judge to a Division Bench (via the Chief Justice), the reference before the Division Bench carries the same number as the matter before the single Judge which is a serious anomaly in this day of computarised recording. As it is now, so it was in the year 2001 that the reference before the Division Bench carried the number of the writ petition that had been filed by the petitioner. It is significant that no appeal was preferred by any person against the judgment and order of March 27, 2001. 13. Since the only issue that was dealt with by the Judges in the relevant Division Bench was as to whether Balmer Lawrie was a State within the meaning of Article 12 of the Constitution, the other aspects of the various matters may have been lost on the Division Bench or may have been specifically kept away from the pointed discussion on the aspect. Thus, the Division Bench did not notice that the reference in C.O. No. 2038 (W) of 1993 was not maintainable since the writ petition had itself been disposed of by the judgment and order of March 27, 2001. 14. The Judges on the Division Bench differed as to whether the company was a State within the meaning of Article 12 of the Constitution. As a result of the difference, the point of difference was referred to a referee judge under Clause 36 of the Letters Patent. The issue was finally answered as far as this High Court was concerned by the judgment in the reference of December 24, 2002. The point of difference was resolved by holding that Balmer Lawrie was a State within the meaning of Article 12 of the Constitution. The issue was finally answered as far as this High Court was concerned by the judgment in the reference of December 24, 2002. The point of difference was resolved by holding that Balmer Lawrie was a State within the meaning of Article 12 of the Constitution. The order passed by the Division Bench (which was, in effect, the opinion of the referee Judge) was challenged by the company by way of special leave petitions which culminated in Civil Appeal Nos.419-426 of 2004 before the Supreme Court. The appeals were disposed of by the Supreme Court by a judgment of February 20, 2013. Paragraph 2C of the judgment has been placed by the petitioner as the sheet anchor for the relief that the petitioner seeks in the present proceedings: "C. The respondents-employees joined the services of the company at different times. However, for the purpose of deciding this case it would be convenient to take up the facts presented by the respondent, Partha Sarathi Sen Roy." 15. The petitioner suggests that since the Supreme Court dealt with the facts pertaining to one of the matters before it and it would be evident from the operative part of the order that it was the intention of the Supreme Court that similar benefits in accordance with Partha Sarathi Sen Roy's case should be received by the other employees who were respondents before the Supreme Court, the petitioner is entitled to back wages and other benefits. In such context, it is necessary to see the operative part of the Supreme Court order: "Undoubtedly, the High Court has not dealt with the issue on merits with respect to the termination of the services of the respondents herein. However, considering the fact that such termination took place several decades ago, and litigation in respect of the same remained pending not only before the High Court, but also before this Court, it is desirable that the dispute come to quietus. Therefore, we had dealt with the case on merits. In keeping with this, we cannot approve the "hire and fire" policy adopted by the appellant company, and the terms and conditions incorporated in the Manual of Officers in 1976, cannot be held to be justifiable, and the same being arbitrary, cannot be enforced. "thus, we do not find any force in the said appeals. The same are dismissed accordingly." 16. "thus, we do not find any force in the said appeals. The same are dismissed accordingly." 16. It is not in dispute that the civil appeal before the Supreme Court pertaining to C.O. No. 2038 (W) of 1993 was marked as Civil Appeal No.420 of 2004 and was included in the bunch of Civil Appeal Nos.419-426 of 2004 on which the judgment was rendered on February 20, 2013. 17. For reasons which are not necessary to be gone into, Balmer Lawrie sought a review of the order which was rejected by the Supreme Court on August 1, 2013. 18. The petitioner suggests that in view of Partha Sarathi Sen Roy's case being decided by the Supreme Court and the judgment of February 20, 2013 unambiguously requiring the directions contained in such order to be applied to the "respondent-employees" in the other matters, the petitioner ought to receive the back wages in accordance with such order. 19. Regrettably, the petitioner's contention cannot be accepted. Even though Article 142 of the Constitution permits the Supreme Court to pass orders to do complete justice between the parties and in certain cases such orders may be at variance with the law on such aspect, it does not appear that by the operative part of the judgment and order of February 20, 2013 passed in Civil Appeal Nos.419-426 of 2004, the Supreme Court intended the present petitioner to be conferred the same benefits as Partha Sarathi Sen Roy despite this petitioner's writ petition having been dismissed on facts by the order of March 27, 2001. 20. As far as this petitioner is concerned, C.O. No. 2038 (W) of 1993 ended with the order of March 27, 2001, notwithstanding the mistaken reference of an issue already decided by such order and the reference being taken up and the order therein being carried by way of an appeal before the Supreme Court without either the Division Bench or the Supreme Court noticing that the writ petition had stood determined and concluded by the order of March 27, 2001. 21. It was open to the petitioner to prefer an appeal against the order passed on merits disallowing the reliefs sought by the petitioner by the judgment and order of March 27, 2001. In the petitioner not taking such step, the matter stood concluded and the principle of res judicata became applicable. 21. It was open to the petitioner to prefer an appeal against the order passed on merits disallowing the reliefs sought by the petitioner by the judgment and order of March 27, 2001. In the petitioner not taking such step, the matter stood concluded and the principle of res judicata became applicable. As is elementary, the operation of res judicata does not depend on the correctness of a decision, it is a matter of public policy that gives a quietus to an issue upon the decision on the issue having attained a finality. 22. There is no doubt that if the petitioner had not instituted the previous petition or the order dated March 27, 2001 had not been passed thereon, subject to grounds of delay, the petitioner may have cited the Supreme Court judgment of February 20, 2013 to obtain the same benefits as a similarly-placed colleague in the same organisation. But the doctrine of precedents does not apply in derogation of the principle of res judicata. The rationale for the same is that res judicata brings an end to the issue, irrespective of whether the decision on such issue is correct or not. 23. An apology is due to the petitioner, who may have waited for several decades in the hope that he would be ultimately entitled to some relief. But the petitioner's fate was sealed upon the order of March 27, 2001 being pronounced and the petitioner not carrying an appeal therefrom. 24. W.P. 5769 (W) of 2015 is dismissed. 25. There will be no order as to costs. 26. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities. Petition Dismissed.