Calcutta High Court (Appellete Side)
Commodities Supply Corporation ... vs Falguni Jana & Ors on 19 January, 2021
19.01.2021
Item No. 08 to 12
15 to 23
Ct. No. 04
PG
F.M.A. 698 of 2019
West Bengal Essential
Commodities Supply Corporation Ltd. & Anr.
Vs.
Falguni Jana & Ors.
Mr. Kalyan Bandyopadhyay, sr. adv.
Mr. Susovan Sengupta
Mr. Sanjay Saha
Mr. Subhasish Bhattacharya
Ms. Sharmila Basu
.....for appellants
Mr. Pushpal Chakraborty
Mr. Arkadipta Sengupta
Mr. Subhajit Das..........for respondents
Mr. Bandyopadhyay, learned senior advocate
appears on behalf of appellants. At the outset he
refers to prayers in the writ petition, more particularly
prayer (a), set out below:
"a) A writ of or in the nature of
mandamus, commanding the respondents,
their men, agents, assigns and subordinates
to forthwith consider the
representations/mass prayers/demand of
justice made by the petitioner along with some
other similarly placed employees being
Annexure "P-8" in accordance with law and
on being satisfied to regularize the service of
the petitioner appointed on compassionate
ground with retrospective effect from
01.04.2010."
He submits, by impugned judgment dated 28 th
February, 2018 regularisation has been directed
usurping administrative power. He then points out
there is also finding that some persons earlier
similarly engaged had been duly regularized, for
application of article 14 in the Constitution of India to
respondents/writ petitioners. Said finding is also
beyond scope of the writ petition. He then proceeds to
further argue on merits.
Interrupting Mr. Bandyopadhyay, we record
our prima facie view, on perusal of the writ petition
and affidavit in opposition. It is a fact that
respondents had made representation, which did not
result in consideration. Secondly, by paragraph 12 in
the affidavit in opposition appellants said:
"12. With regard to statements made in
paragraphs 12, 13, 14 and 15 of the said
application, I say that the same are mostly
matters of record and I deny anything
contrary to the admitted records. Even it is
assuming but not admitting that any person
has been regularized illegally by WBECSC
Ltd, the petitioner cannot seek direction upon
WBECSC Ltd. to repeat the said illegality for
his benefit. In this regard I say that Article 14
of the Constitution of India cannot be invoked
for negative equality."
The two points taken by Mr. Bandyopadhyay at the
outset, though technical but are likely to be answered
in favour of his clients. We say likely because we have
not yet heard respondents. However, in event the
appeal is allowed on technicality, the consequence
will be that appellants will reject the representation(s)
on decision of policy, had in the meantime, that goes
against the claims of respondents. Respondents
would then be compelled, if they can, to mount fresh
substantial challenge against such probable decision
and would also have to include with the challenge,
contention that earlier appointments were not duly
made. Court is not inclined to compel respondents to
such a course of action, which would also lead to
multiplicity of judicial proceedings. Hence, we require
documents to be produced by appellants to enable us
to pronounce judgment. Mr. Chakraborty, learned
advocate appearing on behalf of respondents points
out from order dated 12th March, 2015 (made in the
writ petition) directing Managing Director of
appellants to file further report, inter alia, indicating
names of Directors of the Corporation at the time
when the perceived irregular regularisation was
allowed and the Managing Director to produce all
papers pertaining to the perceived irregular
regularisation of concerned employees so that
appropriate measures can be taken against wrong
doers even if the regularisation cannot be undone.
The reports filed are not part of the paper book.
Appellants will file supplementary affidavit
furnishing documentary evidence regarding their
contention of earlier irregular regularisation. Copy of
the affidavit must be served on petitioners by 12 th
February, 2021. The affidavit will be accepted on
adjourned date.
List on 18th February, 2021.
(Arindam Sinha, J.)
(Suvra Ghosh, J.)
