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2017 DIGILAW 934 (CAL)

Mrinal Kanti Das v. Mitali Ghose

2017-11-30

DEBASISH KAR GUPTA, SHEKHAR B.SARAF

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JUDGMENT : 1. This is an application arising out of an appeal preferred against an order dated August 22, 2017 passed in the writ application. By virtue of the order impugned to the appeal, direction for exchanging affidavits in the writ application was given with a further interim order directing the respondent authorities to maintain status quo ante the order of reversion of the respondent/ writ petitioner. 2. Having heard the learned Counsels appearing for the respective parties as also after considering the facts and circumstances involved in this appeal, we find that the appellant was promoted to the post of Senior Labour Officer (IR) under the Board of Trustees for the Port of Kolkata with effect from February 17, 1994. The respondent/ writ petitioner was promoted to the above post with effect from April 25, 2006. A vacancy for the post of Deputy Labour Adviser and IRO/PO under the respondent Port Trust arose on June 26, 2013. The respondent/ writ petitioner was promoted to the above post on July 18, 2014. 3. On receipt of a complaint, a review departmental promotion committee was constituted which made its recommendation on April 20, 2017 for promotion of the appellant to the above post of Deputy Labour Adviser and IRO/PO. The recommendation got its approval from the respondent no. 3. By an order dated August 9, 2017, the appellant was promoted to the post of Deputy Labour Adviser and IRO/PO after reverting the respondent/ writ petitioner back to the post of Senior Labour Officer under the respondent Port Trust. Accordingly, a seniority list was prepared on August 11, 2017. 4. An application under Article 226 of the Constitution of India was affirmed by the respondent/ writ petitioner on August 18, 2017. The respondent Port Trust issued an order regarding the distribution of work amongst the officers of Labour and Industrial Relation Department on August 21, 2017. 5. The writ petition was taken up for consideration on August 22, 2017. After considering the submissions made by the rival parties, the impugned order was passed. 6. The respondent Port Trust issued an order regarding the distribution of work amongst the officers of Labour and Industrial Relation Department on August 21, 2017. 5. The writ petition was taken up for consideration on August 22, 2017. After considering the submissions made by the rival parties, the impugned order was passed. 6. On perusal of the impugned order, we find that the prima facie considerations behind granting the interim relief for maintaining status quo ante so far as the respondent/writ petitioner was concerned were as follows:- (i) There was violation of rules of principles of natural justice in passing the order of reversion without giving an opportunity of hearing to the respondent/ writ petitioner. (ii) The respondent Port Trust was an enthusiastic litigant to overreach the Court, or in other words, steps were taken to revert the respondent/ writ petitioner back to the post of Senior Labour Officer (IR). 7. After considering the aforesaid dates of promotion of the appellant and the respondent/ writ petitioner, we find that on receipt of a complaint, the review departmental promotion committee was constituted which made its recommendation on April 20, 2017. The above recommendation got its approval on August 8, 2017. The order of promotion of the appellant after reverting the respondent/ writ petitioner back to the post of Senior Labour Officer (IR) was passed on August 9, 2017. It is not in dispute that the seniority list was prepared accordingly thereafter. Admittedly, the writ application was filed by the writ petitioner thereafter. So it is not in dispute that there was no scope of pendency of the writ application during the period from the order of promotion of the appellant/ respondent and the order of reversion of the respondent/ writ petitioner till August 18, 2017. Therefore, the above facts and circumstances lead to a conclusion that the above steps were not taken by the respondent Port Trust in a haste to overreach the Court. The above finding of the learned Single Judge is based on no evidence. 8. Taking into consideration the aforesaid facts and circumstances of this case, we are of the opinion, that in order to grant an interim relief to a litigant the following considerations are to be looked into. i. A strong prima facie case; ii. The balance of convenience and/or inconvenience; and iii. The irreparable loss which may be suffered by the litigant. 9. i. A strong prima facie case; ii. The balance of convenience and/or inconvenience; and iii. The irreparable loss which may be suffered by the litigant. 9. So far as the question of strong prima facie case is concerned, even assuming that the aforesaid two other criteria are not fulfilled, one is not entitled to get an interim relief far less than that of status quo ante. 10. In the light of the above settled principles of law, we find that the allegation of violation of principles of natural justice is the subject matter which could be resolved finally at the time of disposal of the writ application. With regard to the question of balance of convenience and/or inconvenience, it is not in dispute that there will be no reduction in pay of the respondent/ writ petitioner in case of her reversion to the post of Senior Labour Officer (IR). The question of suffering of irreparable loss and/or injury does not arise because in the event of success in the writ application, the respondent/ writ petitioner will get full and complete relief in the writ application. 11. The only question which may arise that in the event the respondent/ writ petitioner is compelled to work under the appellant during the pendency of the writ application, she may be subjected to humiliation and in the event the scope of further promotion arises before disposal of the writ application, she may suffer. Once the aforesaid aspects are taken care of, there is no scope for the Court to pass an exceptional order of maintaining status quo ante in a proceeding. 12. In view of the above, the impugned order so far as it relates to direction upon the respondent authority to maintain status quo ante is concerned, is modified to the extent that the respondent Port Trust shall act on the basis of the order of promotion of the appellant/ respondent and the order of reversion of the respondent/ writ petitioner dated August 9, 2017 and the seniority list dated August 11, 2017 during the pendency of the writ application without prejudice to the rights and contentions of the parties in the writ application and the respondents are restrained from compelling the respondent/ writ petitioner from working under the appellant/ respondent till disposal of the writ application. 13. 13. Since the writ petition is ready for hearing and the same has been appearing in the list of a learned Single Judge, the Court concerned is requested to dispose of the above writ application expeditiously and preferably within three months. 14. Since no useful purpose will be served keeping the appeal pending, the same is treated as on the day’s list, the appeal and the application are disposed of accordingly. 15. Since there is direction for exchanging affidavits in the impugned order, liberty is granted to the parties to exchange the affidavits before the writ application is taken up for hearing.