Research › Search › Judgment

Tripura High Court · body

2016 DIGILAW 105 (TRI)

Gopinath Bhowmik v. Partha Sengupta

2016-04-15

S.TALAPATRA

body2016
JUDGMENT : The petitioner who filed a writ petition being WP(C) No. 35 of 2008 seeking a direction on the UCO Bank and its officers to appoint him as a regular driver or in the sub-staff cadre wherever the vacancy is available in terms of the judgment and decree dated 20.05.2000 in Title Suit 44 of 1998, by the Civil Judge, Senior Division, Court No.2, West Tripura, Agartala, filed this petition under Section 12 of the Contempt of Courts Act read with Article 215 of the Constitution of India alleging deliberate violation of the judgment and order dated 31.03.2014 delivered in the said writ petition. The operative portion of the judgment and order dated 31.03.2014 runs as under: "9. In view of above, the respondent No.1 is directed to consider the petitioner for appointment to the post of the Bank Driver against those vacancies which have been filled up by the persons whose names appear in para 14 of the additional counter-affidavit filed by the respondents, namely (1) Sri Man Bahadur, (2) Sri Birendra Kumar Das (respondent No.4) and (3) Si Syed Ali. If it is found that the petitioner is suitable for appointment to the post of the Driver, the petitioner has to be appointed as a Bank Driver from the date when the respondent No.4 was appointed as the Bank Driver. The petitioner’s case also may be considered by the respondent No.1 against the vacancy of the Sub-staff (Peon) borne in the Grade-IV from the date when the respondent No.5 was appointed. The appointments of the respondents No. 4 and 5 shall be subject to the outcome of such consideration as stated. If it is found that the petitioner is suitable for either of the posts, the appointments of the respondents No. 4 and 5 may be in jeopardy. However, the respondent No.1 is granted liberty to consider the appointment of the petitioner in the post of the Driver or in the cadre of the Sub-staff by creating a supernumerary post, if they are so inclined to save the appointments of the respondents No.4 and 5 and another person as mentioned. The entire exercise has to be completed within a period of 4(four) months from the date of placing the certified copy of this order to the respondents. It is made clear that the direction for consideration cannot be construed as direction for appointment. The entire exercise has to be completed within a period of 4(four) months from the date of placing the certified copy of this order to the respondents. It is made clear that the direction for consideration cannot be construed as direction for appointment. The Bank authority shall consider the suitability of the petitioner for purpose of appointment to the post of the Driver Sub-staff (Peon) in terms of the said decree dated 20.05.2000. 10. Accordingly, this petition stands allowed to the extent as indicated above. However, in the circumstances of the case, there shall be no order as to costs.” 2. It is to be noted that in Title Suit No. 44 of 1998 the Civil Judge, Senior Division, Court No.2, West Tripura, Agartala issued the following decree in favour of the plaintiff, the petitioner herein and the writ petitioner in WP(C) 35 of 2008 : “In view of my above findings over the seven issues the suit is partly decree. As per decree the claim of the plaintiff to declare him as a regular bank employee and bank wages is dismissed. But his claim for consideration and entitlement to be considered for appointment against the regular vacancy of the bank driver as and when the posts are available is allowed. As an eligible candidate case may be considered by the bank authority for appointing him in the regular post, Grade-IV Sub-Staff cadre as and when post are available.” The judgment and order dated 31.03.2014 is unambiguously based on the said decree. 3. Initially the notice was issued to Sri Partha Sengupta, Zonal Manager, now posted at Bhubaneswar Zonal Office, UCO Bank by the order dated 20.06.2015 on the premises that the petitioner's suitability for the post of driver was not considered and his suitability was considered for appointment in the post of sub-staff (peon) without taking any option from the petitioner in violation of the said judgment and order dated 31.03.2014. In reply to the said notice, the said respondent has stated that there was no deliberate violation of the said judgment and order dated 31.03.2014 inasmuch as the petitioner was given opportunity to appear in the written test which was held on 28.12.2014 and personal interview (viva voce) which was held on 09.03.2015 and 10.03.2015 for recruitment to the post of sub-staff (peon). Though the petitioner was age-barred but he was allowed to appear in the interview for assessing his suitability on relaxation but according to the rules the petitioner was not found suitable for the post of peon. Thereafter, by filing an additional counter affidavit on 04.01.2016 the said respondent has further clarified that during the service period of the said respondent with effect from 30.01.2012 to 06.05.2015, there was no regular vacancy against the post of driver either at Agartala or any other sub division of the state and hence he had no scope to consider the suitability of the petitioner in the said post. In the para 3 of the said additional counter affidavit he revealed that the persons whose names have been referred to, in the para 9 of the judgment dated 31.03.2013, were never appointed as the driver in the bank. In the paras 3, 4 and 5, the following has been averred by the said respondent : "3. That as a matter of fact, (1) Sri Man Bhadur, (2) Sri Birendra Kumar Das and (3) Si Syed Ali have been appointed against regular vacancies in the posts of Peon-Cum-Farash in the Bank by the Head Office-2, Personal services department, Kolkata-700064 of UCO Bank observing Guidelines together with procedure issued from time to time by the Appropriate Authority of UCO Bank. But above name Sl No. 1 to 3 persons have not been appointed by UCO Bank as Drivers. In this regard, photo copies of the respective appointment letter being Nos. PER/MPTP/COM/33/2007 dated 05.07.2007, PER/MPTP/COM/33/2007 dated 05.07.2007 and PSD/MPTP/COM/110/2008 dated 07.03.2008 are Annexed hereto and marked as Annexure-R/I(series). 4. That as per relevant papers and documents during recruitment process of (1) Sri Man Bhadur, (2) Birendra Kumar Das, and (3) Si Syed Ali it seems to deduce that all the above named persons had more than 5(five) years previous service/work experience as personal Drivers of the respective officials of UCO Bank and their concerned applications were taken into consideration for facing necessary interview as per guide line of the UCO Bank against the post of Peon-Cum-Farash under UCO Bank; but in case of the petitioner of the instant case, he had been performing works under the Chief Manger w.e.f. 01.06.1989 to 29.01.1993 and naturally the petitioner was not eligible/qualified for the post of Peon-Cum-Farash of UCO Bank. In this connection photo copies of the relevant service experience certificate dated 23.06.2007 issued by the Chief Officer under Regional Office Guwahati-781008 in favour of Sri Man Bahadur, service experience certificate dated 23.06.2007 issued by the Senior Manager, Agartala Branch, Tripura infavour of Birendra Kumar Das and certificate issued by Bank’s Official in favour of Si Syed Ali are annexed hereto marked as Annexure-R/II(series). 5. That it would reveal from the respective certificates that Sri Man Bahadur had been working as personal Driver from January, 1990 and Sri Birendra Kumar Das had been working w.e.f. 20.05.1990 it means both of them had over 15(fifteen) years working experience as personal drivers to the respective Officials of UCO Bank during consideration of their prayer for during recruitment process of UCO Bank." Those statements were the basis for contending that even those persons were not appointed as the drivers, but as the sub-staffs and hence there had been no violation of the said judgment and order dated 31.03.2014. Moreover, the petitioner has failed to prove his suitability in the selection process for recruitment to the sub-staff (peon). 4. Mr. D.K. Biswas, learned counsel appearing for the petitioner has contended that the petitioner was not considered in the vacancy of the Bank Driver despite a specific direction from this court. Mr. Biswas, learned counsel has further contended on the basis of the petitioner's statement made in the additional affidavit filed on 06.01.2016 that when Sri Man Bahadur, Sri Birendra Kumar Das and Si Syed Ali who were similarly circumstanced, being the personal drivers of the Managers, were not required to go through any process of selection for their appointment as Farash or sub-staff. The civil court decree, which was issued on 20.05.2012, was much prior to their appointment. It has been further asserted that on retirement of one regular driver, namely Tapash Kumar Roy who was working in the Agartala branch of the bank one post of the driver has fallen vacant but there had been no endeavour to consider the petitioner in the said post in terms of the said decree based on which the judgment and order dated 31.03.2014 was passed. Annexure-X to the said additional affidavit is a communication dated 03.12.2015, which shows that one Tapash Roy has retired from the service. 5. Annexure-X to the said additional affidavit is a communication dated 03.12.2015, which shows that one Tapash Roy has retired from the service. 5. In view of the said submission, by the order dated 02.03.2016 the notice was issued to the Managing Director, namely Ravy Krishan Takkar in the contempt proceeding inasmuch as Mr. Sengupta, one of the respondents, has stated by filling the additional counter affidavit on 10.02.2016 as under : "Besides, the respondents states that the higher authority of the UCO Bank will decide regarding filling up the vacancy, modalities of consideration and selection against the post thereof and as such the statements and claim of the petitioner as depicted above is not tenable as per provisions of law." 6. Mr. Takkar, the Managing Director of the UCO Bank, has submitted that he had no knowledge of the said judgment and order inasmuch as at the relevant point of time when the said judgment dated 31.01.2014 was delivered he was holding the post of the Executive Director, Dena Bank and on 02.11.2015 he has been appointed as the Managing Director and Chief Executive Officer of the UCO Bank. Even the said judgment and order dated 31.03.2014 was not placed in the records. As a result only when he received the notice from this court on 14.03.2016 he came to know about the said judgment and order which has been alleged to have been violated. Despite that he had tendered unconditional apology for any omission. He has almost replicated the stand of Mr. Sengupta, one of the respondents in this proceeding that there had been no violation of the judgment and order dated 31.3.2014. He has categorically stated that “the petitioner is making a far-fetched allegation that the bank have committed violation of the Hon’ble court’s order also not considering him for the post of bank driver, as none of the private respondents were appointed as bank driver”. 7. Mr. Takkar, the Managing Director and Chief Executive Officer of the UCO Bank, has further stated that if the petitioner is aggrieved by his rejection in the selection process for the post of sub-staff he should have approached the competent forum, but his action for contempt proceeding is not a tenable remedy. In the para 15 of his reply he has stated that: “15. In the para 15 of his reply he has stated that: “15. Without prejudice to the aforesaid, I most humbly submit, if it finally appears that there has been any violation of the order dated 31st March, 2014, I undertake to carry out afresh the exercise to consider the petitioner’s prayer for appointment in terms of the solemn order dated 31st March, 2014, provided the time to carry out such exercise is enlarged very graciously by this Hon’ble Court by a reasonably sufficient time.” 8. Mr. T.K. Roy, learned counsel appearing for Mr. Takkar, the Managing Director and Chief Executive Officer of the UCO Bank, has stated that the petitioner has failed to make out any case for drawing up contempt proceeding against the respondents inasmuch as in order to punish a contemnor it has to be established that disobedience of the order is “wilful”. There is no wilful disobedience inasmuch as there is no vacancy in the post of driver at the relevant point of time and in terms of the direction the petitioner was assessed his suitability for appointment to the post of sub-staff(peon). Even the bank authority had relaxed the upper age limit without being asked by the court. This action stands to show that the respondent-bank, in the writ petition, did not leave any stone unturned to comply the direction of this court. Finally Mr. Roy, learned Senior Counsel has relied on a decision of the apex court in Ram Kishan versus Tarun Bajaj and Others reported in (2014) 16 SCC 204 , where the apex court has observed : “12. Thus, in order to punish a contemnor, it has to be established that disobedience of the order is "wilful". The word "wilful" introduces a mental element and hence, requires looking into the mind of a person/contemnor by gauging his actions, which is an indication of one's state of mind. "Wilful" means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental bona fide or unintentional acts or genuine inability. Wilful acts does not encompass involuntarily or negligent actions. The act has to be done with a "bad purpose or without justifiable excuse or stubbornly, obstinately or perversely." Wilful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. Wilful acts does not encompass involuntarily or negligent actions. The act has to be done with a "bad purpose or without justifiable excuse or stubbornly, obstinately or perversely." Wilful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part. Even if there is a disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished. "Committal or sequestration will not be ordered unless contempt involves a degree of default or misconduct." [Emphasis added] 9. Having appreciated the records and the submission advanced by the learned counsel for the parties, this court is of the view that there had been no wilful disobedience in complying the judgment and order dated 31.03.2014 and hence this proceeding is closed at this stage and the notices issued against the respondent, Mr. R.K. Takkar, the Managing Director and Chief Executive Officer of the UCO Bank, and Mr. Partha Sengupta, Zonal Manager, Bhubaneswar Zonal Office, UCO Bank are hereby discharged. It is expected that Mr. R.K. Takkar, the Managing Director and Chief Executive Officer of the UCO Bank shall carry out a fresh exercise to consider the petitioner's case in terms of the decree dated 20.05.2000 as issued in Title Suit No. 44 of 1998 for recruitment of the petitioner, on extending due regard to his undertaking as extracted above. It is disposed, however, without costs.