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2019 DIGILAW 164 (CAL)

Manoranjan Chakraborty v. Meghna Bhattacharya

2019-02-01

BIBEK CHAUDHURI, DIPANKAR DATTA

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JUDGMENT : Dipankar Datta, J. A simple case having taken somewhat of a complex turn in course of hearing is being dealt with by this judgment. 2. The petitioner had applied for compassionate appointment upon the death-in-harness of his father on March 21, 2012. At the time of his death, the father of the petitioner was a Senior Assistant of the West Bengal Housing Board (hereafter the Board) and had less than two years left for retirement. 3. The claim of the petitioner for compassionate appointment was rejected by the Housing Commissioner of the Board by an order contained in memo dated June 18, 2015. Such order was challenged by the petitioner before a learned Judge of this Court. The challenge failed, and his writ petition was dismissed by an order dated January 6, 2016. 4. The order of rejection was carried in appeal by the petitioner. A Hon'ble Division Bench of this Court upon hearing the parties was of the opinion that the petitioner's case, in the interest of justice, required a fresh consideration. Accordingly, the appeal was disposed of by an order dated June 7, 2016 by setting aside the order of the writ court under challenge and by directing the Housing Commissioner to consider the petitioner's "claim for compassionate appointment afresh on the basis of the notifications which are applicable for such claim". An enquiry was directed to be conducted within three months with further direction to intimate the petitioner the result thereof within a further period of seven days. 5. The Board accepted the aforesaid order dated June 7, 2016, resulting in the same attaining finality. 6. Upon due communication of the order of the Hon'ble Division Bench dated June 7, 2016, an enquiry committee was constituted. Despite such committee having commenced its enquiry, the enquiry report was not forthcoming. This resulted in presentation of this contempt application on December 9, 2016. Copy of the contempt application was directed to be served on an Additional Government Pleader who was present in Court by an order dated March 24, 2017 and the matter was directed to be listed on April 7, 2017. 7. This resulted in presentation of this contempt application on December 9, 2016. Copy of the contempt application was directed to be served on an Additional Government Pleader who was present in Court by an order dated March 24, 2017 and the matter was directed to be listed on April 7, 2017. 7. Close on the heels of such order, the Housing Commissioner of the Board by an order [contained in his memo dated March 29, 2017] purported to inform the petitioner that the report of enquiry was affirmative on the basis of income criteria and that the "office has been directed to take necessary steps for appointment". The petitioner has since brought such memo on record by filing a supplementary affidavit dated October 25, 2017. 8. An order dated February 16, 2018 passed by a coordinate Bench of this Court on the contempt application revealed that the said Bench was pleased to call upon the contemnors-respondents to show-cause, within a period of two weeks, why rule under the Contempt of Courts Act, 1971 shall not be issued for alleged disobedience of the order dated June 7, 2016 and why they shall not be punished in the event of being found guilty of committing contempt. No cause was, however, shown. 9. The application for contempt was listed before this Bench on November 13, 2018. The supplementary affidavit of the petitioner was taken on record by an order of even date passed by this Bench. It was found on perusal of such affidavit that despite the petitioner having been found entitled to appointment on compassionate ground and that appointment would follow shortly, nearly eighteen months had passed without the offer of appointment reaching the petitioner. A prayer for adjournment for two weeks was made by the learned Additional Government Pleader, who was then appearing for the alleged contemnors-respondents for issuance of the offer of appointment in favour of the petitioner. While expressing its view that an order having been made more than eighteen months back by the Housing Commissioner and that it was for such commissioner to ensure that his office implements his order without any further delay, the expectation of this Bench that the offer of appointment (to be issued in favour of the petitioner) would be produced by November 15, 2018, i.e., the next date of hearing, was also recorded. 10. 10. The contempt application was considered next on November 15, 2018, as directed earlier. The order passed on that day went on to record the submissions made on behalf of the alleged contemnors-respondents by Mr. Subhabrata Dutta, learned Junior Government Advocate, as well as a different stand having been taken by him when confronted with queries posed by this Bench, and lastly grant of a prayer for adjournment till November 19, 2018. An observation was made that if positive steps were not taken for issuance of the letter of appointment in favour of the petitioner by the next date of hearing, this Bench would have no other alternative but to make such orders as considered appropriate for maintaining the dignity, prestige and majesty of this Court. 11. An application for modification of the orders dated November 13 and November 15, 2018 followed (CAN 9040 of 2018), at the instance of the alleged contemnors respondents. It was pleaded therein that in view of the order passed by the Housing Commissioner dated March 29, 2017, violation of the order dated June 7, 2016 cannot and does not arise. It was also pleaded that there being no direction in the order dated June 7, 2016 for issuance of appointment letter, the terms of the order dated November 13, 2018 and November 15, 2018 of this Bench amount to material alteration of the order for alleged disobedience of which its contempt jurisdiction was invoked. It is on such ground that the prayer for modification was based. 12. These developments in the backdrop, this Bench was greeted with the advent of Mr. Kishore Datta, the learned Advocate General for this State. His main argument was that the order of the Hon'ble Division Bench dated June 7, 2016 had been complied with by the Housing Commissioner and hence, this Bench ought to drop the proceedings for contempt. Without waiving the aforesaid contention, the learned Advocate General was heard to advance certain alternative arguments. First, the petitioner was ineligible for compassionate appointment and that the Housing Commissioner may not have been posted with relevant facts while complying with the order of the Hon'ble Division Bench dated June 7, 2016. Secondly, the petitioner has been listed at serial no.31 of a list of candidates who are waiting for being appointed on compassionate ground and that till such time his turn arrives, the petitioner cannot be offered appointment. Secondly, the petitioner has been listed at serial no.31 of a list of candidates who are waiting for being appointed on compassionate ground and that till such time his turn arrives, the petitioner cannot be offered appointment. Thirdly and finally, even though the Housing Commissioner may have ruled in favour of the petitioner, offering an appointment is exclusively within the domain of the Board and its authorities and having regard to the financial crunch the Board is facing, the petitioner may not be offered appointment at all if the situation so demands. 13. In support of his submission that a Court may not pass a supplemental order to the main order passed in the writ petition in exercise of contempt jurisdiction, reliance was placed by the learned Advocate General on the decision Sudhir Vasudeva, Chairman and Managing Director, Oil and Natural Gas Corporation Limited and ors. v. M. George Ravishekaran and ors. reported in, (2014) 3 SCC 373 . 14. Responding to the contentions advanced by the learned Advocate General, Mr. Dalapati, the petitioner's learned advocate contended that although the Hon'ble Division Bench in its order dated June 7, 2016 did not direct issuance of an offer of appointment in favour of the petitioner, an offer of appointment should have been the direct and immediate consequence of the finding returned by the Housing Commissioner recorded in the said memo dated March 29, 2017 that the petitioner was eligible for compassionate appointment and that the offer would be issued shortly. The decision [Achhan Rizvi (II) v. State of Uttar Pradesh and ors. reported in, (1994) 6 SCC 752 ] has been relied on for the proposition that it is the duty of this Bench to exact obedience of the order of Court in an appropriate manner. It was, accordingly, prayed that this Bench ought to obtain an assurance from the alleged contemnors-respondents that follow-up action to appoint the petitioner would be taken soon. 15. It has been pointed out to this Bench on behalf of the petitioner by Mr. Dalapati that the list of 31 candidates prepared by the officials of the Board, waiting for their turn for compassionate appointment, has names of candidates at serial nos. 1 to 24 who are the dependents of deceased employees of the Board who passed away between June 30, 2000 and March 20, 2009, i.e., death having occurred in the last decade. Dalapati that the list of 31 candidates prepared by the officials of the Board, waiting for their turn for compassionate appointment, has names of candidates at serial nos. 1 to 24 who are the dependents of deceased employees of the Board who passed away between June 30, 2000 and March 20, 2009, i.e., death having occurred in the last decade. Out of those above the petitioner, i.e., from serial nos. 25 to 30, the dates of birth of four of the candidates are absent. 16. Referring to the said list, it was sought to be contended that keeping in mind the object of compassionate appointment and the fact that the candidates above the petitioner may not have initiated legal action to enforce their rights of being offered appointment upon inclusion of their names in the list of candidates found suitable for appointment, the mere fact of the petitioner standing at serial no.31 should not be regarded as a bar for offering him appointment. Mr. Dalapati has, accordingly, prayed that the learned Advocate General may be called upon to inform the Court the time period likely to be taken by the alleged contemnor respondent for issuance of offer of appointment in favour of the petitioner, and to dispose of the contempt application accordingly with suitable directions. 17. The law laid down in Sudhir Vasudeva (supra) is reiteration of a settled legal proposition. It is not open to a Court in exercise of its contempt jurisdiction to travel beyond the four corners of the order which is alleged to have been flouted or to enter into questions that have not been dealt with or decided in the order, violation of which is alleged. 18. Albeit belatedly, the order of the Hon'ble Division Bench dated June 7, 2016 has been complied with by the Housing Commissioner by holding that the petitioner is eligible for compassionate appointment and that the letter of appointment would be issued shortly. It is indeed true, in view of the order of the Housing Commissioner, evident from the letter dated March 29, 2017 which has been annexed to the supplementary affidavit, that the one and only course open to this Bench is to dispose of the contempt application recording that the order dated June 7, 2016 has been complied with, but belatedly. 19. 19. The necessity of continuing to write this judgment, however, arises because of the alternative submission advanced by the learned Advocate General. Although it is settled law that while considering a plea of contempt the power available to the Court in other corrective jurisdictions should not be trenched upon, this Bench considers it appropriate to deal with certain issues which have surfaced in course of hearing of the contempt application with the innate desire to curb further litigation. 20. The points that had been raised by the learned Junior Government Advocate for the consideration of this Bench on November 15, 2018 were these:- (i) There is no scheme for compassionate appointment framed or adopted by the Board and, therefore, employment under died-in-harness category on compassionate ground cannot be offered. Reference was made to a communication that such advocate received from the Senior Law Officer of the Board dated November 14, 2018; (ii) That the Board had not framed any scheme for appointment on compassionate ground and hence appointments cannot be offered by the Board to any candidate seeking such appointment was considered by a learned Judge of this Court very recently on March 21, 2018. While dismissing WP153 of 2018 (Debolina Debnath v. The West Bengal Housing Board and ors.), the learned Judge observed that without any scheme for compassionate appointment, the respondent Board shall not consider any application; (iii) Lack of vacancies has contributed to the Board not making any appointment on compassionate ground; and (iv) The petitioner cannot expect offer of appointment to reach him unless the 30 (thirty) candidates before him are offered employment. 21. The contentions urged by the learned Junior Government Advocate were clearly self-contradictory. If indeed there was no scheme for compassionate appointment framed or adopted by the Board, there was no question of enlisting candidates to be offered appointment on compassionate ground. That apart, the contention that the Board is not governed by any scheme for compassionate appointment was shown by the Bench to the learned Junior Government Advocate to be fallacious. The West Bengal Regulation of Recruitment in State Government Establishments and Establishments of Public Undertakings, Statutory Bodies, Government Companies and Local Authorities Act, 1999 was brought to his notice to demolish the stand of the Board that there was no scheme for appointment on compassionate ground. The West Bengal Regulation of Recruitment in State Government Establishments and Establishments of Public Undertakings, Statutory Bodies, Government Companies and Local Authorities Act, 1999 was brought to his notice to demolish the stand of the Board that there was no scheme for appointment on compassionate ground. The Board is a statutory body and, therefore, covered by the Act as well as the notifications issued thereunder from time to time. It was only subsequently that the learned Advocate General did not dispute that the Board was covered by the Act and the notifications issued thereunder, and that appointments on compassionate ground would be guided by the terms thereof. However, pointing out a particular notification dated June 6 2005 issued in exercise of power conferred by section 3(c) of the Act, the learned Advocate General sought to contend that the petitioner is not eligible for compassionate appointment. It is this submission that triggers the need for making certain observations to preserve the majesty and dignity of institutions, which are the creatures of the Constitution, and their interrelationships essential to the preservation of the chosen way of life of the Indian people under the Constitution. While the alleged contemnors-respondents seek not to be scathed by submitting on the one hand that the order of the Hon'ble Division Bench dated June 7, 2016 has duly been complied with by reason of the order contained in memo dated March 29, 2017, this Bench cannot allow a submission advanced on their behalf (though it is an alternative submission) to be accepted that the order may not have been passed in conformity with the qualifications for compassionate appointment enumerated in a notification dated June 6, 2005. This is because a party cannot blow hot and cold at the same time. 22. This Bench finds from the list of 30 (thirty) candidates who have been placed above the petitioner that the one Smt. Debalina Debnath is at serial no.11. Her claim for compassionate appointment, raised consequent upon death of her father Kalidas Debnath on March 22, 2005, was found to be in order. Smt. Debalina Debnath was the petitioner in WP 153 of 2018, referred to above, which came to be dismissed by a learned Judge of this Court. We are informed that the order of dismissal has not been carried in appeal. Smt. Debalina Debnath was the petitioner in WP 153 of 2018, referred to above, which came to be dismissed by a learned Judge of this Court. We are informed that the order of dismissal has not been carried in appeal. It is indeed unfortunate that despite the Act being in existence and governing appointments to be made by the Board, the same was not brought to the notice of the learned Judge. 23. Be that as it may, what stands out is that apart from Smt. Debalina Debnath, none of the other 29 (twenty-nine) candidates above the petitioner in the said list have considered it necessary to enforce their rights arising out of enlistment of their names as candidates who deserve compassionate appointment according to the guidelines governing such appointment. It has been years since such candidates were enlisted. A presumption may reasonably be drawn that those candidates are either not in financial distress after the death of the concerned employee or may have, over the years, tide over the financial crisis arising out of sudden death of the sole bread earner for the family or may have lost interest upon in pursuing their claim further. The petitioner having lost his father on March 21, 2012 and having diligently pursued the remedy made available to him by law coupled with the fact that he has been found deserving of an appointment on compassionate ground ought to have been appointed. However, this Bench does not propose to proceed further with the contempt application in view of the decision in Sudhir Vasudeva (supra). It is disposed of together with the application for modification without exercising the jurisdiction to punish the alleged contemnors-respondents for contempt. 24. However, this Bench does not consider expressing hope and trust that the ground on which the alleged contemnors-respondents have succeeded in persuading this Bench to drop the proceedings would not be followed by an exercise of re-visiting the decision whereby the petitioner was found deserving of compassionate appointment, and that such expression is beyond its competence. It does not materially alter the order, contempt of which has been alleged. While so expressing, it is made clear that in the event there be any attempt in that direction, the liberty of the petitioner to bring it to the notice of this Bench is reserved. It does not materially alter the order, contempt of which has been alleged. While so expressing, it is made clear that in the event there be any attempt in that direction, the liberty of the petitioner to bring it to the notice of this Bench is reserved. Insofar as issuance of offer of appointment in favour of the petitioner is concerned, no specific order is required on the contempt application and should no appointment be issued in the near future, the petitioner is left free to pursue his remedy in accordance with law. 25. There shall be no order as to costs.