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2016 DIGILAW 509 (CAL)

Utpal Prasad Roy v. State of West Bengal

2016-06-27

DEBASISH KAR GUPTA, MD.MUMTAZ KHAN

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JUDGMENT : Debasish Kar Gupta, J. The above two appeals are arising out of a common order of dismissal dated August 7, 2014 of two writ petitions bearing W.P. No.14893 (W) of 2005 and W.P. No.12414 (W) of 2006 respectively filed by the appellant. 2. The former one was relating to regularization of service of the appellant and the later one was filed by the appellant challenging a decision of the Electro Medical & Allied Industries Limited not to renew the service of the petitioner in the post of Manager (Personnel & Administration) beyond December 31, 2006, communicated under memo no. EMA/101/2006/6933 dated June 6, 2006. In view of the above both the appeals are taken up analogously. 3. The appellant, while working for gain in the substantive post of Factory Manager under the West Bengal Sugar Industries Development Corporation, submitted his application for the post of Manager (Personnel & Administration) of the Electro Medical & Allied Industries Limited (the Government of West Bengal undertaking) (respondent no.3) in response to an advertisement of the respondent no.3 published in “The Statesman” on June 5, 1994. The appellant further participated in an interview held on July 26, 1994, in connection with his above application. 4. By a communication dated December 8, 1994, issued by the respondent no.5, the appellant was informed that pursuant to the recommendation of the standing selection Board of the Public Enterprise Cell, Government of West Bengal, as also on the basis of his performance in the interview, he had been selected for appointment in the aforesaid post of Manager (Personnel & Administration) under the respondent no.3. According to the above communication he would be on contractual service for a period of three (3) years with effect from the date of his joining. Renewal of the period of his above contractual service was depending on satisfactory performance of duties during the aforesaid period of his service. The appellant joined in the above post under the respondent no.3 in terms of the above letter of appointment with effect from December 13, 1994. 5. By office order dated December 9, 1997, the above service under the respondent no.3 was renewed for a further period of three (3) years with effect from December 13, 1997. The appellant joined in the above post under the respondent no.3 in terms of the above letter of appointment with effect from December 13, 1994. 5. By office order dated December 9, 1997, the above service under the respondent no.3 was renewed for a further period of three (3) years with effect from December 13, 1997. Though the above contractual appointment was renewed once again for a period of three (3) years with effect from December 13, 2003, by an order dated October 30, 2003, the above period of renewal of his service was modified for a period of one (1) year only with effect from December 13, 2003, by virtue of a subsequent order dated January 8, 2004, passed by the authority of the respondent no.3. The appellant submitted a representation dated February 12, 2004, to the respondent no.5 praying for regularisation of his service to the post of Manager (Personnel & Administration) permanently claiming that on the basis of verbal assurance to permanent service, he had accepted the offer of contractual service under the respondent no.3. Thereafter, the contractual service of the appellant was further renewed for a period of one (1) year only with effect from January 1, 2005, by virtue of an order dated December 31, 2004. 6. In the meantime, the appellant prayed for a lien in connection with his erstwhile employment under the West Bengal Sugar Industries Development Corporation. His prayer for granting lien in respect of his erstwhile service under the West Bengal Sugar Industries Development Corporation was also pending at that point of time. 7. The appellant filed an application under Article 226 of the Constitution of India bearing W.P. No.14893 (W) of 2005. Though the above writ application was admitted, no interim relief was granted in favour of the appellant in connection with the above writ application. The appellant preferred an appeal bearing MAT 4640 of 2005 arising out of the above writ application. The above appeal was disposed of by a Division Bench of this Court by an order dated December 27, 2005, with a direction upon the respondent no.3 to take a decision formally after examining the past performance of the appellant as to whether the renewal of his service should be granted or not. 8. The above appeal was disposed of by a Division Bench of this Court by an order dated December 27, 2005, with a direction upon the respondent no.3 to take a decision formally after examining the past performance of the appellant as to whether the renewal of his service should be granted or not. 8. During the pendency of the writ application and without prejudice to the rights and contentions of the parties to the above writ application, the respondent no.3 informed the appellant by its communication dated February 6, 2006, that upon consideration of the performance of the appellant the Board of Directors of the respondent no.3 had decided not to renew the contractual service of the appellant beyond December 31, 2006. The appellant filed the second writ application bearing W.P. No.12414 (W) of 2006, challenging the same. 9. After analogous hearing of the aforesaid writ applications the same were dismissed by virtue of the impugned judgment. Hence this appeal. 10. It is contended by Mr. Arabinda Chatterjee, learned Senior Advocate appearing on behalf of the appellant that he was appointed in the post of Manager (Personnel & Administration) under the respondent no.3 on contract basis for a period of 3 years with the verbal assurance for his permanent absorption in the above post. It was extended till December 2005 by virtue of several orders after due consideration of his satisfactory performance. 11. It is also contended that the learned Single Judge did not take into consideration that the benefit of EMAIL (Revised pay and allowances) Rules, 2001 (the benefits of 4th pay Commission) which was normally allowed in connection with permanent service of a Manager under the respondent no.3, had been allowed to the appellant by the respondent no.3. 12. According to Mr. Chatterjee, the learned Single Judge further ignored the fact that the appellant accepted the employment under the respondent no.3 after tendering his resignation from permanent service of West Bengal Sugar Industries Development Corporation, which was also a public undertaking. 13. 12. According to Mr. Chatterjee, the learned Single Judge further ignored the fact that the appellant accepted the employment under the respondent no.3 after tendering his resignation from permanent service of West Bengal Sugar Industries Development Corporation, which was also a public undertaking. 13. It is further contended that the Special Secretary to the Government of West Bengal, and Industries Department requested the principal secretary to the Government of West Bengal Public Enterprises Department under his communication dated April 21, 2005 to look into the matter taking into consideration the observation of the Finance Department as communicated under a communication dated December 27, 2000 to the effect that he might be absorbed in the public undertaking concerned. 14. It is finally contended that in view of the above, the legitimate expectation of the appellant should have been taken into consideration by the learned Single Judge. 15. Mr. Chatterjee relies upon the decisions of Secretary, State of Karnataka & Ors. vs. Umadevi (3) & Ors., reported in (2006) 4 SCC 1 , State of Karnataka & Ors. vs. M.L. Kesari & Ors., reported in (2010) 9 SCC 247 , State of Jharkhand & Ors. vs. Kamal Prasad & Ors., reported in (2014) 7 SCC 223 and Oil and Natural Gas Corporation Limited vs. Petroleum Coal Labour Union & Ors., reported in (2015) 6 SCC 494 in support of his above submissions. 16. On the other hand, it is submitted by Mr. Himadri Kumar Barua that the appellant was offered an appointment by letter dated December 8, 1994 in the post of Manager (Personnel & Administration) mentioning therein specifically that the above appointment would be on a contract basis for a period of 3 years with effect from the date of his joining to the above service. According to Mr. Barua, the petitioner joined the service under respondent no.3 after availing of the opportunity of lien in connection with of his past service under the West Bengal Sugar Industries Development Corporation, keeping his right to continue with his aforesaid permanent service. After completion of the period of his contract service under the respondent no.3. According to Mr. Barua, the prayer of the appellant for his permanent absorption under the respondent no.3 was considered in the meeting of its Board of Directors held on September 10, 2002. After completion of the period of his contract service under the respondent no.3. According to Mr. Barua, the prayer of the appellant for his permanent absorption under the respondent no.3 was considered in the meeting of its Board of Directors held on September 10, 2002. After due consideration of legal opinion of the company’s advocate, the Board arrived at a conclusion that changing of terms and condition attached to the service of the appellant for switching over from contractual service to permanent service was not permissible. 17. It is finally submitted by Mr. Barua that there was no promise held to the appellant for absorbing him permanently under the respondent no.3. 18. We have heard the learned Counsels appearing for the respective parties at length and have considered the facts and circumstances involved in these appeals carefully. 19. It is not in dispute that an offer was made to the appellant by the respondent no.5 on behalf of the respondent no.3 by a communication dated December 8, 1994 for appointment in the post of Manager (Personnel & Administration) under the respondent no.3 purely on contractual basis for a period of 3 years with effect from the date of his joining. 20. The petitioner accepted the above offer by joining in the post under reference on December 12, 1994. There was no assurance for absorption of the appellant in the said post on permanent basis. Undoubtedly, the service of the appellant was contractual in nature. The terms and conditions of the employment under reference were mentioned in the letter of appointment dated December 8, 1994. None of the above terms and conditions ensured conversion of the nature of above employment of the petitioner into a permanent one. On each and every occasion of extension of the tenure of the above contract service of the appellant a specified period was mentioned. 21. According to the settled principles of law that an authority which is a “State” within the meaning of the Constitution of India can be made subject to the equitable doctrine of promissory estoppel in a case where because of representation of the authority concerned the party claiming estoppel has changed its position and provided such an estoppel is not contrary to any statutory provision. Reference may be made to the decision of Pawan Alloys and Casting Pvt. Ltd. vs. UP State Electricity Board & Ors., reported in (1997) 7 SCC 251 and the relevant portion of the above decision is quoted below:- “10. It is now well settled by a series of decisions of this Court that the State authorities as well as its limbs like the Board covered by the sweep of Article 12 of the Constitution of India being treated as “State” within the meaning of the said article, can be made subject to the equitable doctrine of promissory estoppel in cases where because of their representation the party claiming estoppel has changed its position and if such an estoppel does not fly in the fact of any statutory prohibition, absence of power and authority of the promisor and is otherwise not opposed to public interest, and also when equity in favour of the promisee does not outweigh equity in favour of the promisor entitling the latter to legally get out of the promise.” 22. After taking into consideration the facts and circumstances involved in the present appeals, we are of the opinion that no promise had been held by the respondent no.3 to the appellant on the basis of which the petitioner changed his condition to his prejudice. Therefore, we do not find any infirmity in the decision making process of the learned Single Judge in holding that the appellant was not entitled to get any relief on the basis of the doctrine of promissory estoppel. 23. Though the benefit of EMAIL (Revised pay and allowances) Rules, 2001 (the benefits of 4th pay Commission) were extended to the appellant in connection with his service under reference, we find no promise or assurance as a consequence thereof for absorption of the appellant in a permanent post. We do not find any material on record in support of the aforesaid submission made on behalf of the appellant. 24. The action on the part of the appellant in tendering resignation from permanent service under his erstwhile employer, West Bengal Sugar Industries Development Corporation, it was an act of volition on his part and not an act under any compulsion. 24. The action on the part of the appellant in tendering resignation from permanent service under his erstwhile employer, West Bengal Sugar Industries Development Corporation, it was an act of volition on his part and not an act under any compulsion. Such an action on the part of the appellant could not create any legally enforceable right in his favour to compel the respondent no.3 to absorb him in a permanent post converting his contractual appointment to permanent one. 25. It will not be out of context to mention here that though the petitioner had tendered resignation to his permanent service under the West Bengal Sugar Industries Development Corporation the appellant did not take proper steps in accordance with law for enjoying the benefit of lien in connection with his erstwhile service. It had no nexus with his contractual service to claim a benefit of his absorption in the service under the respondent no.3. The above claim, in our opinion was misconceived. 26. With regard to the communication dated December 27, 2000 of the Special Secretary to the Government of West Bengal, Commerce & Industries Department, we find no error or infirmity in the decision making process of the learned Single Judge to hold that the respondent no.3 was an autonomous body being a public undertaking and it was free to act on the basis of its policy decision. As a result, it has rightly been held by the learned Single Judge that such observation has no manner of binding effect on the respondent no.3 to absorb the appellant in a permanent post under the respondent no.3. 27. While dealing with the irregular appointments (not illegal appointments) in Umadevi (3) (supra) the Hon’ble Supreme Court directed the State authorities to take steps to regularise the irregular appointments (not illegal appointments) as a one-time measure. The benefit of the above exception contained in the case of Umadevi (3) (supra) was further extended by the Hon’ble Supreme Court in the case of M.L. Kesari (supra) to the effect that (i) the employee concerned should have worked for 10 years or more in duly sanctioned post without benefit or protection of the interim order of any Courts or Tribunals. (ii) Where such person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection. 28. (ii) Where such person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection. 28. The benefit of regularisation were extended by the Hon’ble Supreme Court to the employees concerned in the matters of Kamal Prasad (supra) and Oil and Natural Gas Corporation Ltd. (supra) assessing their respective claims in the light of the decisions of Umadevi (3) (supra) and M.L. Kesari (supra). 29. But in view of the peculiar facts and circumstances involved in the present case the appellant does not stand in the same footing to that of the employees concerned in the aforesaid cases. Therefore, none of the aforesaid judgments helps the appellant in any way. 30. These appeals are therefore dismissed. However, this order will not stand in the way of releasing the money due and payable to the appellant arising out of his service under reference without delay. 31. There will be, however, no order as to costs. Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis. I agree : Md. Mumtaz Khan, J.