Calcutta High Court (Appellete Side)
Diptish Chandra Tarafder & Ors vs State Of West Bengal & Ors on 18 August, 2023
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
WP.ST 471 of 2013
IA NO: CAN/1/2015(Old No:CAN/606/2015)
Diptish Chandra Tarafder & ors.
Vs.
State of West Bengal & ors.
with
WP.ST 139 of 2018
IA NO: CAN/1/2019(Old No:CAN/4960/2019)
Diptish Chandra Tarafder
Vs.
State of West Bengal & ors.
For the Writ petitioners : Mr. Kallol Basu. Advocate
Mr. Suman Banerjee, Advocate
Mr. Krishnendu Bera, Advocate
For the State : Mr. Tapan Kr. Mukherjee,
Sr. Advocate & A.G.P.
Mr. Pinaki Dhole, Advocate,
Mr. Somnath Naskar, Advocate
in WPST 471 of 2013
Mr. Tapan Kr. Mukherjee,
Sr. Advocate & A.G.P.
Mr. Pinaki Dhole, Advocate,
Mr. Avishek Prasad, Advocate
in WPST 139 of 2018
2
Hearing on : 18.08.2023
Judgment on : 18.08.2023
DEBANGSU BASAK, J.:-
1.
Two writ petitions are taken up for analogous hearing as they
involve the same parties.
2. WP.ST 471 of 2013 is the first in point of time. It is directed
against the order of the Tribunal dated March 7, 2013 passed in O.A.212
of 2011 by the West Bengal Administrative Tribunal, negating the claim
of the writ petitioners therein for regularisation.
3. WP.ST 139 of 2018 is at the behest of one person, directed against
an order dated August 2, 2018 passed in O.A.232 of 2016 by the West
Bengal Administrative Tribunal, upholding the decision of discharge from
service of such person.
4. In WP.ST 471 of 2013, there are number of writ petitioners which
includes the writ petitioner in WP.ST 139 of 2018.
5. We enquired from the learned advocate appearing for the writ
petitioners as to whether, all writ petitioners of WP.ST 471 of 2013 are
proceeding with the writ petition or not. He takes instruction from the
writ petitioner of WP.ST 139 of 2018 and submits to the Court that apart
from writ petitioner of WP.ST 139 of 2018 who is a party writ petitioner
in WP.ST 471 of 2013, other writ petitioners are not interested therein.
6. In such circumstances, apart from the writ petitioner of WP.ST 139
of 2018 who is a party in WP.ST 471 of 2013, the writ petition being
WP.ST 471 of 2013 is dismissed as not pressed as against the other writ
petitioners therein.
7. We are, therefore left with a common writ petitioner in the two writ
petitions.
8. The writ petitioner in the two writ petitions was engaged as Part
Time Workshop Instructor by a letter dated February 4, 2005.
9. By a writing dated August 31, 2015, he was informed that the
terms of engagement as Part-time Workshop Instructor was discontinued
for the academic session July 2015 onwards.
10. Learned advocate appearing for the writ petitioner submits that,
the letter dated August 31, 2015, contains stigma as against the writ
petitioner and therefore, provisions of Article 311 of the Constitution of
India are attracted.
11. No show-cause notice, disciplinary proceeding, personal hearing or
a right of representation being granted to the writ petitioner, the entire
proceedings for termination of services of the writ petitioner stands
vitiated, in view of breach of principles of natural justice and the
termination being in violation of Article 311 of the Constitution of India.
In support of his contentions he relies upon AIR 1958 Supreme Court
36 (Purshotam Lal Dhingra vs. Union of India) and AIR 1964 SC 449
(Jagdish Mitter vs. The Union of India).
12. Relying upon (1999) 3 Supreme Court Cases 60 (Dipti Prakash
Banerjee vs. Satyendra Nath Bose National Centre For Basic
Sciences, Calcutta and others) learned advocate appearing for the writ
petitioner submits that since the initial termination of service of the writ
petitioner was vitiated, the writ petitioner is entitled to reinstatement
with back wages.
13. With regard to the claim of the writ petitioner for regularisation,
learned advocate for the writ petitioner relies upon various authorities
and submits that, one opportunity should be given to the writ petitioner
for the purpose of absorption through a scheme for regularisation as the
writ petitioner was appointed prior to the decision of (2006) 4 SCC 1
(Secretary, State of Karnataka & ors. vs. Uma Devi (3) and ors.).
14. Learned advocate for the writ petitioner relies upon other
authorities in support of his contention with regard to the claim of
regularisation.
15. Learned Senior Advocate appearing for the State submits that, the
claim for regularisation of the writ petitioner will survive only if, the
discharge of the writ petitioner from the services is set aside. The writ
petitioner stood discharged from services by the writing dated August 31,
2015. He contends that, the no stigma was attached to the writ
petitioner. The letter dated August 31, 2015 does not speak of any
stigma as against the writ petitioner. Therefore, the ratio of the
Purshotam Lal Dhingra (supra) or Jagdish Mitter (supra) are not
attracted. Consequently, the question of reinstatement of the writ
petitioner with back wages in terms of the Dipti Prakash Banerjee
(supra) also does not arise.
16. Learned advocate appearing for the writ petitioner draws the
attention of the Court to a Memorandum bearing No. 2966-F (P) issued
by the Finance Department, Audit Branch of the State of West Bengal
dated April 23, 2010 and submits that, casual/daily rated workers may
be engaged till they attend the age of 60 years. Their period of
engagement may be terminated in the event the incumbent is found to be
involved in criminal case/ misconduct/delinquency/incapacitation.
According to him, none of the conditions for termination of service as
contemplated by the Memorandum dated April 23, 2010 exist so far as
the writ petitioner is concerned. Therefore, the writ petitioner is entitled
to be engaged till attaining the age of 60 years. The relief with regard
thereto should be granted to the writ petitioner.
17. Learned advocate appearing for the State submits that, the
Memorandum dated April 23, 2010 is not attracted to the writ petitioner
simply on the ground that the writ petitioner was engaged as a part-time
Workshop Instructor and not as a casual daily rated worker.
Consequently, the writ petitioner is not entitled to claim engagement till
attaining the age of 60 years.
18. As noted above, the writ petitioner was engaged as a part-time
Workshop Instructor on February 4, 2005 in a particular institution. He
was transferred to another institution subsequently. Thereafter, by a
writing dated August 31, 2015, the writ petitioner was informed that the
term of engagement as a part-time Instructor would be discontinued
from the academic session July 2015 onwards. Not a word in the writing
dated August 31, 2015 can be construed to stigmatise the writ petitioner
in any manner.
19. The writing dated August 31, 2015 refers to a department Memo
No.1905-TET(Poly)/10M-74/2015 dated August 25, 2015.
20. The memo dated August 25, 2015, is an intra department memo
with copy thereof not being made over to the writ petitioner. The memo
emanated from the Joint Secretary, Government of West Bengal and was
addressed to the Director of Technical
Education & Training, West Bengal with copy forwarded to the Principal
of the Polytechnic. There in such memo, another memo of July 15, 2015
was referred to and it was found that, the writ petitioner was guilty of
dereliction of duty as a part-time Instructor. Steps were directed to be
taken to discontinue the engagement of the writ petitioner.
21. Since, the letter of discharge dated August 31, 2015, does not
allude to any misconduct on the part of the writ petitioner and its speaks
mainly of discontinuation of service of the writ petitioner with effect from
academic session July 2015 onwards, we are of the view that, the letter
dated August 31, 2015 does not cast any aspersion or stigma on the writ
petitioner.
22. Purshotam Lal Dhingra (supra) and Jagdish Mitter (supra) are of
the view that a government employee even if engaged on temporary basis
is entitled to the protection under Article 311 of the Constitution of India,
if , his services are sought to be terminated by attaching a stigma to him.
They also observed that, in the event, the termination of the services of
the temporary government servant is founded in the right flowing from
contract or the service rules, then Article 311 of the Constitution of India
is not attracted.
23. In the facts and circumstances of the present case, since, there is
no stigma attached to the writ petitioner in the letter dated August 31,
2015, and since he was appointed part time and on contractual basis, we
are of the view that writ petitioner is not entitled to claim protection
under Article 311 of the Constitution of India.
24. Consequently, since the order of discontinuance of service of the
writ petitioner not being held to be invalid the ratio laid down in Dipti
Prakash Banerjee (supra) is not attracted.
25. The memo dated April 23, 2010 of the Government relates to the
casual and daily rated workers. In the present case, writ petitioner was
engaged as a part-time Workshop Instructor. Moreover, as noted above,
his discontinuation from services was without any stigma attached to
him.
26. In such circumstances, we are of the view that, the writ petitioner
is not entitled to claim the protection of memo dated April 23, 2010.
27. In view of the discussions above, we find no merit in the WP.ST
139 of 2018.
28. Since the writ petitioner is no longer in service, the question of
regularisation of the writ petitioner does not arise. Therefore, we refrain
from entering into a detailed discussion with regard to all the contentions
raised by the parties in WP.ST 471 of 2013.
29. WP.ST 471 of 2013 and WP.ST 139 of 2018 along with
connected applications are disposed of without any order as to costs.
(Debangsu Basak, J.)
30. I agree.
(Md. Shabbar Rashidi, J.)
CHC
