Calcutta High Court (Appellete Side)
Asiatic Society'S Employees' Union & ... vs Lt. Col. Anant Sinha on 27 September, 2024
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
Form J(2) IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Arindam Mukherjee
CPAN/1550/2024
in
WPA/8104/2021
with
CAN/1/2024, CAN/2/2024
Asiatic Society's Employees' Union & Anr.
-Vs.-
Lt. Col. Anant Sinha, Administrator, Asiatic Society,
Kolkata
For the petitioners : Mr. Kallol Basu,
Mr. Suman Banerjee.
For the alleged
Contemnor : Mr. Firdous Shamim,
Mrs. Sayani Roy Chowdhury,
Mr. Rishabh Ahmed Khan.
Heard on Judgement (oral) on : 27.09.2024.
Arindam Mukherjee, J.
1. This contempt application arises out of an order dated 4th
October, 2021 passed in WPA/8104/2021. The operative
portion of the said order dated 4th October, 2021 is as follows:-
"After hearing the parties, the matter requires detailed
scrutiny, which is possible only after affording the
respondents an opportunity to disclose their stand on
affidavits. However, till the writ petition is finally heard
out, the interest of the employees of Asiatic Society are
required to be protected. The respondents are directed to
act strictly in accordance with the order dated 9th June,
2021, till the writ petition is heard on affidavits. The
parties shall be at liberty to bring to the notice of this Court
if there is any change in situation from the order dated 9th
June, 2021, prior to final hearing of the writ petition."
2. The petitioners say that there has been violation of this
operative portion of the order by the alleged contemnor.
Although the contempt application is appearing for the first time
but the alleged contemnor is personally present in Court and
Mr. Firdous Shamim, learned Advocate assisted by Mrs. Sayani
Roy Chowdhury and Rishabh Ahmed Khan appears on behalf of
the alleged contemnor and submits that he has the instruction
to represent the alleged contemnor. Mr. Shamim undertakes
that Mr. Rishav Ahmed Khan shall be filing the Vakalatnama on
behalf of the alleged contemnor in the Department.
3. The petitioners submit that the alleged contemnor despite
being specifically aware of the order dated 4th October, 2021
has prevented some of the employees of Asiatic Society from
entering the office or to record their attendance in the biometric
device after 31st August, 2024. The petitioners say that three
of the employees, namely, Sri Palas Kanti Dutta, Smt. Anita Roy
and Sri Sushil Chandra after having attended the age of
superannuation was granted extension as permissible under the
Asiatic Society Bye Laws particularly under VI(B)-SR 13(6).
The said Bye Laws provide that every employee of the Society
shall retire on completing the age of 60 years but his services
may be extended by the Council for a period not exceeding one
year at a time provided that the total period of such extension
should not exceed five years. The petitioners placed before the
Court the minutes of the meeting of the Council of Asiatic
Society, Kolkata held on 30th July, 2024 and in particular
agenda no. 10 whereunder the prayers of the employees of the
Society received in the month of June, 2024 for extension of
their services was considered. It appears from the minutes that
it was resolved to give Sri Palas Kanti Dutta one year extension
with effect from 4th October, 2024, one year extension to Smt.
Anita Roy with effect from 20th August, 2024 and one year
extension to Sri Shshil Chandra with effect from 19th August,
2024.
4. The petitioners say that these three employees have been
prevented from entering the office or recording their attendance
in the biometric device by the alleged contemnor in violation of
the order dated 4th October, 2021. The petitioners, therefor,
seek an interim order in the contempt application to permit the
said three employees to enter the office premises, record their
attendance and perform their duties as usual to maintain the
status quo situation which prevailed as on 4th October, 2021.
The petitioners have relied upon a Judgment reported in
(2006)1 CLT 355 (Ranjit Kumar Halder -Vs.- State of
West Bengal & Ors.) in support of their contention. Relying
upon paragraph 68 of the said Judgment it is submitted that the
Court even without reaching a finding on contempt can issue an
order of injunction.
5. On behalf of the alleged contemnor it is submitted that the
funds for operation and management of the Asiatic Society is
received from Government of India, Ministry of Culture. The
Ministry has issued a circular on 9th July, 2024 wherein under
Clause X it is stated "extension of services of the employees
beyond 60 years should be stopped immediately. The
instruction issued by the Ministry in this regard has to be
strictly followed" as the salary/remuneration to be paid to the
employees under extension will come from the Ministry and as
such the funds will not be released for paying the remuneration
or salary of the employees under extension. In view of such
circular it is submitted by the alleged contemnor that the three
persons, namely, Sri Palas Kanti Dutta, Smt. Anita Roy and Sri
Sushil Chandra are beyond the age of 60 years cannot be
permitted to continue with work. That apart and in any event,
the tenure of the extended period of each of the three persons
named hereinabove has expired on 31st August, 2024. It is
further submitted on behalf of the alleged contemnor that if
these persons are allowed to work then their remuneration
cannot be disbursed in view of the specific stipulation in the
notification/circular dated 9th July, 2024. These three persons,
therefor, were not allowed to enter the office after 31st August,
2024.
6. After perusing the minutes of the Council held on 26th July,
2024 it is apparent that the circular/notification dated 9th July,
2024 was placed before the Council. The Council took note of
such circular and thereafter extended the tenure in respect of
Sri Palas Kanti Dutta, Smt. Anita Roy and Sri Sushil Chandra
subject to, however, approval of the Ministry.
7. This Court is apprised that the minutes of the Council
dated 26th July, 2024 has been sent to the Ministry and till date
there is no approval as to the extension granted to above three
persons. Unless there is specific approval to the extension of
the tenure these three persons cannot be allowed to work at
the Asiatic Society. There is as such no violation of the order
dated 4th October, 2021 as per the alleged contemnor and no
contempt proceedings also lies in respect thereof.
8. It is well settled principle of law that in contempt
jurisdiction no fresh order can be passed if it is found that the
same relates to fresh cause of action. However, to preserve the
dignity of the Court orders may be passed so that settled
position directed to be maintained by the order under contempt
cannot be altered unless the subsequent events compel
variation of the order under contempt. In the instant case, if
the facts are chronologically noted it will appear that at the time
when the order dated 4th October, 2021 was passed all the
three persons, namely, Sri Palas Kanti Dutta, Smt. Anita Roy
and Sri Sushil Chandra were on extension. This will be clear
from the minutes of the Council dated 26th July, 2024 where Sri
Palas Kanti Dutta is on his fifth and final year of extension, Smt.
Anita Roy is on her fourth year of extension and Sri Sushil
Chandra is on his third year of extension. The three persons,
therefor, subsequent to the order dated 4th October, 2021
continued to work in Asiatic Society under the extended tenure
which is permissible in view of VI B - SR 13(6) of the Bye Laws
of Asiatic Society. There is no dispute that the Council on 26th
July, 2024 was competent to grant the extension. The Council
has taken note of the circular notification dated 9th July, 2024
and as such has provided for a caveat that the extensions are
subject to approval by the Ministry. The approval for extension
has not yet been either allowed or refused. It is also not in
dispute that Asiatic Society functions through its Council. The
discussion of the Council, therefor, cannot be over ruled by the
administrator appointed on the Council having been defunct. In
the event, the three persons, namely, Sri Palas Kanti Dutta,
Smt. Anita Roy and Sri Sushil Chandra are not allowed to work
as per the extension granted to them by the Council in its
meeting held on 26th July, 2024 has to be carried out till the
same is expressly over-ruled by a competent authority. The
decision of the Council after taking note of the circular dated 9th
July, 2024, therefor, cannot be ignored. The ministry is
competent to issue circulars but the ministry cannot sit on
appeal over the decision of the Council. Moreover, the decision
to grant extension taken by the Council in its meeting dated
26th July, 2024 has also not been disapproved by the ministry.
Their claim for remuneration will not be there if they are not
allowed to work. The administrator in this factual matrix cannot
prevent the three persons from entering the office or perform
their duties to bye-pass the order dated 4th October, 2021 by
which a status quo position was directed to be maintained in
the context of a particular state of affairs. None of the three
persons have been given extension beyond the period
permissible under the by-laws of the Society. Even if the said
three persons received their remuneration for the period they
rendered their services on the extended period they will not be
receiving remuneration without performing their duties. The
said three persons were employees of Asiatic Society prior to
reaching their age of superannuation. So, the Asiatic Society or
the Ministry for that matter will not be prejudiced as they can
pray for appropriate steps against the three persons in the writ
petition which is pending final disposal.
9. In the light of the discussion hereinabove, I hold that
these three persons should not be prevented from entering the
office of Asiatic Society on and from 1st October, 2024 till the
extension period as granted by the Council in its meeting held
on 26th July, 2024 expires or till such time the extension is
interjected by a decision of a competent authority.
10. Since the alleged contemnor has appeared and elaborate
submissions have been made on his behalf and considering the
same I do not find that there has been a deliberate violation of
the order dated 4th October, 2021. It may be at the highest an
act as per his interpretation of the circular of the ministry dated
9th July, 2024 which has not fallen for scrutiny of a competent
authority as yet. For the reasons recorded hereinabove the
contempt petition is disposed of.
Urgent photostat certified copy of this judgment and order, if
applied for, be supplied to the parties on priority basis after
compliance with all necessary formalities.
(Arindam Mukherjee, J.)
Srimanta
A.R.(Court).
