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2025 DIGILAW 772 (CAL)

Tamal Chatterjee v. State of West Bengal

2025-11-07

SMITA DAS DE, SUJOY PAUL

body2025
JUDGMENT : SMITA DAS DE, J. 1. The instant intra-court appeal is preferred by the appellants in W.P. No. 4842(W) of 2017 against an Order dated June 8, 2018 challenging inter alia the order passed by the Learned Single Judge wherein the issue involved encompasses with regard to the denial of joining on the post of Junior Engineer at the office of Divisional Engineer, Berhampore even after accepting the offer of appointment and submission of the joining report. 2. Apropo the facts of the case, the petitioners (being the appellants herein) applied for the post of Junior Engineer in pursuance of an advertisement published on 30.12.2015 by the Managing Director, West Bengal State Minor Irrigation Corporation Ltd. (hereinafter referred to as W.B.S.M.I.C. Ltd. for the sake of brevity and convenience being the Respondent Corporation herein) for filling up the post of the Junior Engineer. The last date of submission of the application was scheduled to be January 15, 2016 but the same was further extended to July 15, 2016 vide notice dated June 27, 2016. 3. From records it appears that on two occasions i.e. on August 4, 2016 and August 31, 2016 the call letters for interview were issued to the appellants fixing the date and time of the interview on August 28, 2016 at 11:30 a.m. and September 15, 2016 at 11 a.m. respectively. Thereafter, on October 17, 2016 and October 21, 2016 the Respondent No. 3 by a letter offered the appellants the post of Junior Engineer on contractual basis for a period of 12 months with the total monthly remuneration of Rs. 18,000/-. 4. On October 25, 2016 the appellants submitted the copy of their joining letter as per the direction of the Managing Director and also informed the same accordingly to the Divisional Engineer stating inter alia that the appellants did not receive the posting order till date. The representation dated October 28, 2016 was made by the appellants before the Divisional Engineer for consideration with regard to the issuance of the posting order. In reply thereto the Divisional Engineer informed the appellants that they shall receive the posting order very shortly. 5. In the meantime, on October 04, 2016, the Meeting no. 159 of the Board of Directors was convened wherein various decisions were taken by the Board of Directors including the appointment of the appellants. 6. In reply thereto the Divisional Engineer informed the appellants that they shall receive the posting order very shortly. 5. In the meantime, on October 04, 2016, the Meeting no. 159 of the Board of Directors was convened wherein various decisions were taken by the Board of Directors including the appointment of the appellants. 6. The appellants espouses that despite they were selected and empanelled some other candidates were offered the appointment and have been allowed to join who are still working with the approval of the Chairman of the said post. The appellants take the plea of being discriminated for not been given any posting order even after accepting the offer of appointment and submission of joining report. Being aggrieved by this the appellants filed a writ petition before this Hon’ble High Court being W.P. No. 4842 (W) of 2017. The matter was heard at length by the Hon’ble the then Justice Subrata Talukdar on June 8, 2018. The Learned Single Judge was pleased to observe as follows:- “Accordingly, noticing the weight in the view that the Corporation also may not have continued with the contractual appointment beyond the initial period of 12 months, although the petitioners are not entitled to a restoration of their appointments at this stage, with the expiry of their contractual period in 2017, the petitioners are entitled to be compensated for their loss of earnings for the failure on the part of the Corporation to take their appointments to a logical conclusion.” Appellant’s contention:- 7. The Learned Counsel on behalf of the appellants submits that as per the appointment letters, one year’s employment contract entails scope of continuation until further orders by virtue of Clause 6, which gains significance in view of the fact that such contractual employments were made in jobs of perennial nature in view of Respondent’s filling up of huge number of vacant posts with permanent recruitment due to paucity of finance. 8. The respondents admitted by way of an affidavit by the present Managing Director of WBSMIC that a recruitment process was initiated due to heavy retirement of staff which created huge demand of job requirement in the company for the posts in question. 9. Learned Counsel on behalf of the appellant submits that it is apparent from the 156th Meeting of the Board of Directors that the erstwhile Managing Director was empowered to finalize the selection process for contractual appointments. 9. Learned Counsel on behalf of the appellant submits that it is apparent from the 156th Meeting of the Board of Directors that the erstwhile Managing Director was empowered to finalize the selection process for contractual appointments. The minutes of the 156th Meeting of the Board of Directors was signed by the Chairman himself. As such, the allegation of lack of competence of the erstwhile Managing Director is contrary to the admission apparent from records. It was further submitted that the recruitment process was decided by Board of Directors in its Meeting No. 157 signed by the Chairman himself in which it was decided that “in case of young unemployed generation inter-department notice for Oral Test has to be circulated’. In view of the Board Resolution vide Meeting No. 157 the appellants substantive right had already been accrued by virtue of their selection and issuance of appointment letters. 10. Learned Counsel on behalf of the appellant submits that vide Agenda No. 1 of the 157th Minutes, the Board of Directors had resolved as follows:- “The whole matter was discussed thoroughly and it was resolved in the meeting that the management of this corporation could absorb minimum skeleton of staff on contractual Basis in the interest of poor, small and marginal beneficiaries of the total 653 M.I Owned Scheme which suits, the comments of the Finance Department in the latest file. The contractual staff means the staff from young unemployed generations after 18 years and efficient retired employees of this corporation" 11. The appellants also submit that in view of the resolution, the appellants applied and were issued in favour of them. Since several documents were found to be lost and due to absence of signatures in the meeting No. 158 and 159 of the Board of Directors of meetings the respondent Corporation registered an FIR against the respondent no. 3 and as a result of which the decision taken by the Board of Directors in the said meetings could not be held to be valid and became a nullity. Consequently, due to such misconduct of the part of the respondent no. 3, the appellants were debarred from joining the post in question. 12. 3 and as a result of which the decision taken by the Board of Directors in the said meetings could not be held to be valid and became a nullity. Consequently, due to such misconduct of the part of the respondent no. 3, the appellants were debarred from joining the post in question. 12. The subject matter of the challenge of the instant appeal filed by the appellants is with regard to the observation of the Learned Single Judge, failing thereby to appreciate the factum of the case in the context of resolution of the meetings by wrongly altering/substituting the term of clause 6 of the contract in spite of arriving at a finding that the appointment letters have been proved validly. 13. Learned counsel on behalf of the appellant in support of his contention has placed reliance on averments wherein the Respondent Corporation has admitted on paragraphs ‘G’ & ‘H’ of the Affidavit-in-Opposition and the same is reproduced hereunder:- “g) It is a fact that the original documents relating to minutes of 157th Meeting of the Board of Directors of this Corporation held on December 30, 2015 was traceable in the office of the West Bengal State Minor Irrigation Corporation Limited" “h) It is a fact that the Minutes of the 158th and 159th of the Board of Directors meeting held on June 27, 2016 and October 4, 2016 respectively cannot be taken into account in view of the fact that there is no signature of the Chairman i.e. Prof (Dr.) Saumen Kumar Mahapatra, Minister-in-Charge, W.R.I.& D.D., Government of West Bengal, in those minutes of the said purported decision taken in those meetings is treated to be a nullity and as such any recruitment of personnel in office support service to the said Corporation being proceeded on the basis of such purported resolutions is treated to be an illegal and/or void one. Apart from the fact that in absence of Chairman, there cannot be any validly constituted Board of the said Corporation Limited and the same is lacking herein with regard to purported Minutes of the 158th and 159th of the Board of Directors meeting purportedly held on June 27, 2017 and October 4, 2016 respectively." 14. Learned counsel for the appellants submit that the Board Meeting Nos. Learned counsel for the appellants submit that the Board Meeting Nos. 158 and 159 respectively stands to be in continuation of the decision for appointment of contractual employees in perennial nature of work as held in Meeting Nos.156 and 157 which were duly signed by the Chairman. As a result of which the appellants right accrues thereby creating a legitimate expectations for being treated at par with other contractual employees in terms of the conditions of the employment contained in the contract. 15. It is further submitted that the Respondent Corporation doesn’t deny that the persons named in the minutes of the 158th and 159th meeting were not present in such meeting. Moreover, from the written compliant of alleged theft of documents also, it stands admitted that the Board Meeting Nos. 158 and 159 were in fact held with full coram of Board of Directors. Such Board Meetings having been held in full coram in which the Chairman was present, therefore, the allegation of the Chairman not signing the same is inconsequential. The Hon'ble Single Judge has also come to a finding that the continuation in the serial numbers demonstrates the validity of the previous meeting. 16. Learned counsel on behalf of the appellant also submits that the entire recruitment process cannot be vitiated solely on the ground that the minutes of meeting did not contain the signature of the Chairman. The appellant also takes the plea the offer of appointment issued to other candidates who were similarly situated and similarly circumstanced which runs contrary to the principle of natural justice by not allowing the appellants to join the similar posts. It was stated that from the records it appears that similarly situated and similarly circumstanced were issued similar type of offer of appointment to join service who are still continuing to be in service. The appellants also counters the fact of registering FIR on the ground that the then Managing Director had stolen the minutes of 156th, 157th, 158th and 159th of the Board Meeting. Since it is evident from the affidavit vouched by the newly appointed Managing Director that all the minutes were available in the office which were subsequently cancelled by him. 17. Since it is evident from the affidavit vouched by the newly appointed Managing Director that all the minutes were available in the office which were subsequently cancelled by him. 17. The Learned Counsel appearing on behalf of the appellants submits that the Respondent Corporation adopted a Resolution being the 162nd Resolution from which it transpires that there is a continuation in the serial number of Board meeting upto 162nd meeting which amply proves the validity of the previous meetings. The allegations of lack of competence of the erstwhile Managing Director is contrary to the stand taken in the affidavit by the Respondent Corporation. Respondent’s contention: 18. Per contra, the Learned Counsel appearing on behalf of the respondents submits that the original documents relating to minutes of meeting No. 156 held by the Board of Directors of the Respondent Corporation on 15th May, 2015 was not traceable in the office of the WBSMIC. It was further submitted that the minutes of meeting No. 159 cannot be held to be valid in view of the fact that the minutes was not at all signed by the respondent No. 2 as required under the rules of the Respondent Corporation’s business. It was further submitted that the appointment of the appellants were not preceded by any advertisement. 19. The respondent further submits that Sri P. R. Santra joined the Corporation as Managing Director on April 8, 2015. Sri P. R. Santra, Ex. Managing Director of WBSMIC had initiated action for filling up some vacancy purely on temporary basis. The paper advertisement was made on January 4, 2016 in "Darpan of India" and in "Janata Express". On October 26, 2016, Shri Prasanta Ranjan Santra was released from the post of Managing Director, WBSMIC Ltd. and Sri Tarun Kanti Ranga assumed charge as Managing Director, WBSMIC Lid. Shri Tarun Kanti Ranga who had assumed charge as Managing Director on October 26, 2016 did not allow them to join the post as he found that some original files/ documents were missing from the office of the Corporation. 20. Shri Tarun Kanti Ranga who had assumed charge as Managing Director on October 26, 2016 did not allow them to join the post as he found that some original files/ documents were missing from the office of the Corporation. 20. It was also submitted that in l62nd meeting dated May 30, 2017 the Managing Director appraised the board about the Writ Petition being moved before this Hon'b1e Court by some persons who were not allowed to join in the service of WBSMIC Ltd. The board resolved to cancel the earlier appointment process initiated by Shri P. R. Santra, Ex-MD except those who had filed the Writ petition before this Hon’ble Court and approved fresh recruitment. As per the decision of the Board of Directors in its meeting No. 162 dated May 30, 2017, WBSMIC issued further advertisement for cancellation of recruitment notice initiated by the erstwhile Managing Director. 21. Learned Counsel on behalf of the respondent also submits that it is a fact that the Minutes of the 158th and l59th of the Board of Directors Meeting held on June 27, 2016 and October 4, 2016 respectively couldn’t be taken into account in view of the fact that there was no signature of the Chairman Prof (Dr.) Saumen Kumar Mahapatra, Minister-in-Charge W.R.I & D.D., Government of West Bengal. Unless the signatures feature in the minutes of the meetings, the purported decisions taken in those meetings tantamounts to a nullity. Apart from the fact that in the absence of the Chairman, there cannot be any validly constituted Board of the said Corporation Limited. Minutes of the 158th and 159th of the Board of Directors Meeting purportedly held on June 27, 2017 and October 4, 2016 lacks competence and become invalid. 22. Against the backdrop of the case the issue which arises is as follows:- I. Whether the WBSMIC was right in not allowing the appellants to join their respective posts of Support Staff / Junior Engineers as per the offers of appointment issued to the appellants by the Respondent Corporation by dint of 17.10.2016 and 21.10.2016 respectively. Analysis : 23. 22. Against the backdrop of the case the issue which arises is as follows:- I. Whether the WBSMIC was right in not allowing the appellants to join their respective posts of Support Staff / Junior Engineers as per the offers of appointment issued to the appellants by the Respondent Corporation by dint of 17.10.2016 and 21.10.2016 respectively. Analysis : 23. After hearing the rival contentions of the parties and considering the materials available on records, we are of the considered view that the Learned Single Judge was right in arriving at a finding that the meeting No. 159 appears to be in continuation of the minutes/resolution corresponding from the meeting No. 156 held by the Board of Directors of the Respondent Corporation but from the record it reveals that in all the meeting Nos. 156 – 159 the respondent corporation took a conscious stand to recruit candidates as “support staff” on contractual basis which the appellants had agreed upon to adhere to the terms and conditions for such appointment. It also appears from the record that the Chairman being the respondent No. 2 herein also signed the Minutes No. 162 on 13th June 2017. Therefore, it is apparent from the sequence of maintaining the Serial numbers, that the previous serial numbers of the minutes being Nos. 156 – 159 remains to be valid and also does not project that the then Managing Director of the Respondent Corporation had acted in a manner which de hors the intention of the Board of Directors of the Respondent Corporation to recruits such staff staffs. The resolution No. 156 to 158 ultimately permitted vide resolution No. 159, the engagement / appointment of a person on a purely temporary contractual basis to meet the shortfall in the vacancies as held by the Learned Single Judge. Since in the order dated 29.02.20216 passed by the erstwhile Managing Director of the respondent corporation held that those who have completed minimum one year of satisfactory and continuous service will be declared as skilled contractual appointed persons and their remuneration would be paid as per the oldest order of Labour Department, Government of West Bengal and revised rate to be declared by them from time to time. It is also appears from the minutes of the meeting No. 162 held on 30.05.2017 by the Chairman of the respondent corporation, (a) that the earlier appointment process initiated by the Ex- Managing Director of the respondent Corporation shall stand cancelled save and except those candidates who filed writ petitions before the Hon’ble High Court at Calcutta and secondly to approve the fresh recruitments. The Chairman of the respondent corporation was authorized not only by the Board for assessing the requirements of the respondent corporation but also to finalize/complete the recruitment process at the earliest. 24. From the records it is apparent that in pursuance of such resolution a cancellation notice dated 5.7.2017 as widely published by way of an advertisement once in ‘Times of India’ on 7.7.2017 declaring that the earlier notices of recruitment published in ‘Janata Express’ and ‘Darpan of India’dated 30.12.2015 respectively stood cancelled due to unavoidable available circumstance with immediate effect save and except who filed the writ petition before the Hon’ble High Court at Calcutta. It is pertinent to note that since the writ proceedings were pending before the Hon’ble High Court the Chairman could not take appropriate decision with regard to the appellants (being the writ petitioners herein). 25. In the conspectus of the above, we find that the contention of the appellants regarding the letters of appointment dated 17.10.2016 and 21.10.2016 respectively ought to have been considered for arriving at a logical conclusion. The appellants could have continued to the respective appointments at the best of their abilities for the contractual period of 12 months before such appointment falling to the consideration of the respondent corporation for renewal. It is reiterated that the entire appointment process initiated by the Ex-Managing Director of the Respondent Corporation stood cancelled as per the resolution adopted by the board of the directors in the meeting No. 162 convened on 30.5.2017 save as except the candidates who filed the writ petition before the Hon’ble High Court at Calcutta. Since all the relevant documents were found not to be traceable resultant which the relevant minutes of the meeting Nos. 157 to 159 tantamounts to be executed illegally. Due to absence of the signature of the Chairman of the respondent Corporation in the minutes the writ petitioners were not allowed to join despite being appointed. Since all the relevant documents were found not to be traceable resultant which the relevant minutes of the meeting Nos. 157 to 159 tantamounts to be executed illegally. Due to absence of the signature of the Chairman of the respondent Corporation in the minutes the writ petitioners were not allowed to join despite being appointed. Under such pretext the documents perse cannot be held to an authoritative document and be considered valid. It invalidates the evidentiary value for substantiating the locus of the appointment of the appellants to continue in service for the said post. 26. It is trite that an appointment made by the managing director without the proper approval of the Board of Directors and shareholder as required by the Companies Act is considered invalid. The absence of the chairman’s signature in the minute of the Board meeting, while serious procedural irregularity with potential penalties for the company and officers, serves as key evidence that proper authorization was lacking and the appointee’s continuity of service can be barred. While minor procedural defects in a valid appointment might be excused under circumstances. A complete lack of proper board resolution and shareholder approval for a key appointment like a managing director(or a key employee appointment if the power rests solely with the board) is a substantive violation. If the company or the appointee becomes aware that the appointment was invalid, any actions taken after gaining such knowledge are not protected. The company can refuse to allow the individual to join or continue service once the lack of valid appointment is established. In the scenario described the combination of a delinquent managing director and the lack of a chairman’s signature on the minutes would lead a court to likely rule the appointment invalid. The appointee’s claim for continuity of service would probably be rejected because the fundamental legal requirements for the appointment were not met, making the appointment void from the beginning (void ab initio).The individuals recourse might be to sue the delinquent managing director personally for damages, rather than enforcing the void contract against the company. 27. In the present case the appellant employee who had been appointed under the advertisement dated 31.12.2015, does not have any right on the subject post once it is concluded that the advertisement itself is void and is declared illegal and unconstitutional. 27. In the present case the appellant employee who had been appointed under the advertisement dated 31.12.2015, does not have any right on the subject post once it is concluded that the advertisement itself is void and is declared illegal and unconstitutional. The candidate’s right to continue on such posts is contingent upon the legality of the advertisement and the recruitment process conducted in pursuance thereof. At this juncture before parting, we deem it fit to note that the minutes of Board meeting lacks competence which thereby creates no vested rights upon the candidates to join the appointment. 28 . Affirming the impugned order, we find that the reasoning given by the Learned Single Judge, suffers no legal infirmity which warrants any interference. In all fairness, the Learned Single Judge was quite clear to express his plausible views that the Respondent Corporation ought not to have proceeded with the contractual appointment beyond the initial period of 12 months, although the appellants have lost their locus of being restored back to their respective posts at the stage with the contractual period in 2017. The Learned Single Judge keeping in mind the gravity and the weightage of the principles propriety and equity of justice was right in observing that the appellants were entitled to be compensated for their loss of earning for the failure on the part of the Respondent Corporation to take their appointment to the logical conclusion. 29. However, the judgment and the Order of the Learned Single Judge is modified to the extent that the respondents shall pay the salaries of the appellants at the amount at which the letter of appointments were respectively issued in favour of the appellants for the period of 12 months inclusive of interest bearing at 5% per month not exceeding the relevant 12 months of period in question. The respondent corporation shall forthwith pay the calculated amount to the appellants within a period of four weeks from the date failing which the consequential proceedings shall be followed accordingly. The Chairman is also directed to take an independent decision within 90 days from date with regard to the appointment of the appellants since similarly situated persons under similar circumstances were offered same type of work and still remains to continue to be in service. 30. The appeal MAT/687/2018 stands disposed of. No order as to costs. 31. The Chairman is also directed to take an independent decision within 90 days from date with regard to the appointment of the appellants since similarly situated persons under similar circumstances were offered same type of work and still remains to continue to be in service. 30. The appeal MAT/687/2018 stands disposed of. No order as to costs. 31. In view of the observation held above MAT/649/2018 is also disposed of. 32. Urgent Photostat certified copy of this order if applied for, be supplied to the party on priority basis upon compliance upon requisite formalities. Sujoy Paul, A.C.J.-I agree.