Ambuj Tewari vs The State Of West Bengal & Ors
2023 Latest Caselaw 2433 Cal

Item No.32


              IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
                   CONSTITUTIONAL WRIT JURISDICTION
                                APPELLATE SIDE
                              HEARD ON: 11.04.2023

                            DELIVERED ON: 11.04.2023

                              CORAM:
         THE HON'BLE ACTING CHIEF JUSTICE T. S. SIVAGNANAM
                                AND
           THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA

                             W.P.A. (P) 274 of 2021

                                  Ambuj Tewari.
                                       Vs.
                         The State of West Bengal & Ors.


Appearance:-

Mr. Kallol Basu
Mr. Subrata Santra            .... for the petitioner

Mr. Lalit Mohan Mahata
Mr. Rudranil De                ...    for the State.




                                   JUDGMENT

(Judgment of the Court was delivered by T.S. SIVAGNANAM, ACJ.)

1. By way of this public interest writ petition, a teacher,

Mr. Ambuj Tewari, hailing from Purulia District seeks to

protect the rights of the forest dwellers, who have organised

themselves into a committee called Joint Forest Management

Committee (for short, "JFMC"). The case of the writ

petitioner rests upon an order issued by the Government of

West Bengal dated 11th December, 2019. For better

appreciation, the same is quoted hereunder:-

"ORDER

The Governor is pleased to allow the Directorate of Forests to implement the plantation works directly by them by engaging local JFMC members, instead of engaging contractors.

However, the material should be procured after observing necessary tender/quotation procedures and the labour payments should be made as per rate notified by the Labour Department time to time by making direct credit to the respective Bank Account of the labourers by ECS.

This order issues with the concurrence of Finance Deptt's U.O. No. Gr. T/2019-2020/0687 U.O. Date-23.10.2019.

Sd./-

Joint Secretary to the Government of West Bengal".

2. As could be seen from the above order, a direction has

been issued pursuant to the orders of His Excellency the

Governor West Bengal to allow the Directorate of Forests to

implement the plantation works directly by them by engaging

local JFMC members instead of engaging contractors. Further,

it was ordered that the material should be procured after

observing necessary tender/quotation procedure and the labour

payments should be made as per rate notified by the Labour

Department time to time by making direct credit to the

respective bank account of the labourers by ECS. The said

order has been issued with the concurrence of the Finance

Department.

3. It is submitted by the learned Advocate appearing for the

petitioner that pursuant to the Government order dated 11 th

December, 2019, another order was passed on 5th May, 2021 by

the Chief Conservator of Forests, South West Circle, West

Bengal addressed to the Divisional Forest Officer, Purulia

enclosing the Government order dated 11th December, 2019 with a

direction that the procedure stated therein should invariably

be followed in all other wages / labour payments by ECS only.

It is a submission made on behalf of the petitioner that

though such was the Government order, the Directorate of

Forests in utter derogation to the said order has invited e-

tender for allotting the works to contractors.

4. According to the petitioner, such procedure adopted by

the Directorate of Forests is contrary to the Government order

and is illegal. In this regard, several representations were

made by the writ petitioner but none of them had evoked any

response, which necessitated the writ petitioner to approach

this Court by way of a public interest litigation.

5. Pursuant to the directions issued by the Court, a report

has been filed by the Chief Conservator of Forests and in

paragraph 6 of the report, certain difficulties have been

expressed by the Chief Conservator of Forests, which are set

out hereunder:-

6. Though it was thought that this particular G.O of Forest Department in question would help a lot in implementing the Plantation Works, it became difficult in reality due to the following reasons-

I. Earlier while following the G.O No-5400-F(Y) dt 25/6/12 and its subsequent amendment No-2254-F dt 24/4/14 had been followed, Division Office was required to make only bills in favour of contractors either in TR-26 or in TR- 70, as the case maybe, but now, the Division office are required to create a series of wage bills time to time.

II. . Further, as the details of Plantation Labourers such as name, Mobile No, Bank A/c no, IFSC, etc which are mandatory for preparation of the bills, are not known and varies continuously, until and unless these data are collected from the field in a proper manner by the filed staffs, Divisional Forest Officer would not be in a position to entre these mandatory preliminary data in IFMS for preparation of the bill and it becomes time consuming and cumbersome.

III. If any mistake takes place in entering the aforementioned basic data, the payment of those particular Plantation Labourers move to failed transaction. This situation is extremely difficult to tackle with. From the system, it can't be ascertained properly that who the sufferers are. Naturally, these have to be clarified from file by updating the passbooks of the concerned persons. This process creates further delay in making payment to another 15-20 days more.

IV. The DFOs perform the plantation activities departmentally when the tender processes are failed completely. It is not that they have completely ignored the latest G.O of Government LeG.O No FOR-99/185/2019- SECTION (FOR)- Deptt of Forest-1/72515/2019 Dt 11/12/2019( FILE NO FOR-99/185/2019-SECTION(FOR)-Deptt).

V. As fund was placed on percentage basis, next part of the works are hampered drastically due to unwillingness of the concerned JFMC members to carry out the next part of the works. Normally, it took nearly 1/1.5 months to process the bill through muster roll and subsequent payments through DBT (Direct Benefit Transfer). As a result, till the payment of 1" part is cleared, the JFMC members were not willing to take up the next part of the work. Had it been implemented through tender, the concerned contractors would take care of the situation.

VI. Further, the Plantation Workers who are generally the JFMC members have their own other reservations such as-

* They are required to go to Banks to withdraw cash from their accounts and the entire process resulted into 1 day of loss of manday.

* As they are not very conversant with the procedure of withdrawal, they have to depend on some other person who in turn claims money for their service.

* In a district like Purulia, Block Headquarters like Bndwan, Baghmundi, Mnabazar-1 &11, Banks are situated far off from most of the village. Normally communication is a problem and communication during COVID- 19 pandemic situation at those blocks can easily be comprehended.

It is a fact that all the divisions have faced all the aforementioned difficulties during the financial year 2020-21 while implementing the Plantation Works as per the aforementioned G.O of Forest Department. The Matter was brought to the notice of the Appropriate Authority before the implementation of the Plantation works during 2021-22. Simultaneously, Majority of the JFMCs where the plantation works were supposed to be implemented during 2021-22, was consulted. While JFMCs have explained their problems. Appropriate Authority has also made provisions of fund for floating tender and quotation, as the case may be, as per GO No-5400-F(Y) dt 25/6/12 and its subsequent amendment No- 2254-F dt 24/4/14 for creation of plantations. However, in Clause 2 of Analysis of Estimates of Tender Notice it was clearly mentioned that during engagement of labourers priority should be given to the members of concerned JFMC."

6. The writ petitioner has filed a supplementary

affidavit and also an exception to the report filed by the

Chief Conservator of Forests. In the exception to the report,

an office order dated 11th April, 2022 has been annexed, which

is to the following effect:-

"Government of West Bengal Directorate of Forests Office of the Principal Chief Conservator of Forests, Head of Forest Force Aranya Bhawan, Block-LA-10A, Sector-ill, Salt Lake City, Kolkata-700 106 Phone: (033) 2335 8581/7751, Fax: (033) 2335 8756, e-Mail: pccfhoff.office-

[email protected] Visit us at: www.westbengalforest.gov.in

No. 07-CS/C-24011/2022 Dated 11.04.2022

OFFICE ORDER

Whereas it has been observed with great concern that the Annual General Meeting and reconstitution of JFM Committees are not being held regularly;

And whereas it has been noticed that many of the JFM Committees have been continuing without proper elected representatives;

And whereas it was instructed vide this office letter No. 6830/CS/C- 24011 dated 21.12.21 to complete the process of reconstitution of JFMCS within 18.02.2022;

Now, therefore, it is ordered that all the DFOS should take proper initiative to complete Annual General Meeting and election of Executive Committee within 15th May, 2022 positively and report compliance;

It is further ordered that no distribution of JFMS share should be undertaken till the process of Annual General Meeting and election of office- bearers are completed;

For the purpose of the election, procedure to be followed for constitution of Executive Committees of JFMCS, this office order No. 05-MISC/2017 dated 16.01.2017 should be adhered to.

(Dr. J. T. Mathew)

Principal Chief Conservator of Forests & Head of Forest Force, West Bengal"

7. In terms of the above office order, direction has been

issued by the Principal Chief Conservator of Forests to all

his officers that the JFMCs have to be reconstituted after

conducting elections and the District Forest Officers were

directed to take proper initiative to complete annual general

meeting and election of executive committee within 15th May,

2022 positively and report compliance. There was an embargo

placed in the said order stating that no distribution of JFMS

share should be undertaken till the process of annual general

meeting and election of office bearers are completed.

8. It has been almost a year since the above office order

dated 11th April, 2022 has been passed. By now, the annual

general meeting and the election of the executive committee

should have been completed as per the directive issued where

the time limit was fixed as 15th May, 2022. As could be seen

from the Government Order dated 11th December, 2019, there was

a specific direction issued allowing the Directorate of

Forests to implement the plantation works directly by them by

engaging local JFMC members. This Government order having not

been rescinded or superseded, is bound to be followed by the

Directorate of Forests.

9. In the preceding paragraphs, we have extracted the

difficulties, which were pointed out by the Chief Conservator

of Forests. On perusal of those difficulties, we find that

most of them are "procedural in nature". The object behind

the Government order permitting the Directorate of Forests to

implement the plantation works directly by the JFMC is with a

view to rehabilitate those persons, who worked for such

schemes and who do not have any source of employment.

Therefore, the difficulties, which have been pointed out such

as, the mobile numbers, bank accounts, IFSC details, etc. for

the purpose of preparation of bills has to be sorted out by

the Forest Department and that cannot stand in the way of

implementing a welfare scheme to rehabilitate the members of

the JFMCs.

10. In any event, the Principal Chief Conservator of Forests

has issued a directive on 11th April, 2022, which should have

been implemented by now and if the same had been implemented,

we see no impediment or road blocks for the Forest Department

to scrupulously implement the Government order dated 11 th

December, 2019.

11. In the light of the above, the following direction would

meet the ends of justice. There will be a direction to the

concerned officials of the Directorate of Forests to ensure

that annual general meeting and election of the executive

committee of all the JFMCs have been completed and if not

completed in a few JFMCs, the same should be completed within

a period of two months from the date of receipt of the server

copy of this order.

12. If the annual general meeting and election of the

executive committee had already been completed in certain

JFMCs or in all JFMCs, then the Directorate of Forests shall

implement the Government order dated 11th December, 2019

whereby His Excellency the Governor of West Bengal was pleased

to allow the Directorate of Forests to implement the

plantation works directly by them by engaging local JFMC

members instead of engaging contractors.

13. The difficulties or road blocks, which have been pointed

out in the report filed by the Chief Conservator of Forests

shall be resolved by taking necessary assistance from the IT

wing of the Forest Department or the IT wing of the Government

of West Bengal and such issue should not be cited as a reason

for not implementing the Government order dated 11th December,

2019.

14. With the above direction/observation, the writ petition

stands disposed of.

15. There shall be no order as to costs.

16. Urgent photostat certified copy of this order, if applied

for, be furnished to the parties expeditiously upon compliance

of all legal formalities.

( T.S. SIVAGNANAM) ACTING CHIEF JUSTICE

I agree,

(HIRANMAY BHATTACHARYYA, J.)

NAREN/PALLAB(AR.C)