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Judgment
Dipankar Datta, J.—A Committee viz. Suri Bus Stand Committee (hereafter the said Committee) was formed some time in 1978. It comprised of the following members:
1) Additional District Magistrate, Birbhum - Chairman;
2) Sub-divisional Officer, Sadar, Suri and ex-officio Executive Officer, the Municipality;
3) Divisional Engineer, (Birbhum-O.& M. Divn.), W.B. State Electricity Board,
4) Executive Engineer, PWD, Birbhum Dn.;
5) Two non-official members of the Regional Transport Authority (to be nominated by them from amongst themselves);
6) Deputy Superintendent of Police (Headquarters), Birbhum, Suri;
7) A representative of the Bus Owners'' Association;
8) A representative of the Local Passengers'' Association;
9) A representative of the Local Motor Workers'' Association;
10) Deputy Collector (Treasurer), Birbhum; and
11) Regional Transport Officer, Birbhum (Convenor & Secretary).
The petitioner was appointed as Cashier-cum-Caretaker by the Chairman of the said Committee and Additional District Magistrate, Birbhum, vide order dated 25.7.1980. The appointment was purely temporary, on consolidated pay of Rs. 450/- and on other terms and conditions mentioned therein. By a memo dated 5.1.1983, the Secretary of the said Committee informed the petitioner that he had been confirmed in the post of Cashier-cum-Caretaker with effect from 1.7.1982 retrospectively.
While the petitioner was serving as Cashier-cum-Caretaker, he was placed under suspension by order dated 9.12.1996 issued by the Sub-divisional Officer, Sadar, Suri, Dist. Birbhum and Secretary of the said Committee in contemplation of disciplinary proceedings. It is not disputed that a charge-sheet dated 8.1.1997 was issued against the petitioner and that the District Panchayat and Rural Development Officer, Birbhum was appointed Enquiry Officer. He had submitted his report of enquiry dated 24.8.1999 holding that:
*****
During course of enquiry it transpired that the letter of appointment of Sri Ashim Ghosh in the post of Caretaker-cum-Cashier of the Suri Bus Stand Committee could not be produced from either side. On the other hand Sri Ghosh stated in his deposition that he is not a Govt. servant and bore in the Govt. establishment and paid from Govt. exchequer, the petitioner was not a Government employee, the matter of initiating proceedings against Sri Ghosh falls on the wrong tract and in my opinion it will be an futile attempt to bring home the charges framed against Sri Ghosh and no further enquiry in this respect is worthwhile and it will serve no purpose. If the Bus Stand Committee does not require the service of Sri Ghosh any more, it may take other suitable measure in this regard as it may deem fit and proper. *****
By an order dated 16.7.2009, I directed the State respondents to file an affidavit bringing on record the aforesaid enquiry report and also to indicate whether any final order in connection with the disciplinary proceedings had been passed or not. An affidavit dated 30.7.2009 has since been filed annexing thereto copy of the enquiry report but it has not been averred there that the disciplinary proceedings reached a logical conclusion by reason of a final order being passed in connection therewith.
The issue of handing over charge, control and management of Suri Bus Stand from the said Committee to Suri Municipality (hereafter the Municipality) had exercised the consideration of the District Magistrate, Birbhum. He had by his order dated 31.12.2002 refused to transfer Suri Bus Stand to the Municipality. Such order of the District Magistrate was subjected to challenge by certain councillors of the Municipality by filing a writ petition before this Court, registered as W.P. No. 1181(W) of 2003. That writ petition was allowed by this Court by an order dated 11.11.2003 wherein, inter alia, it was directed as follows:
*****
In view of the aforesaid subsequent decision of the competent authority of the State of West Bengal in the matter of transfer of Suri Bus Stand to Suri Municipality, earlier order passed by the District Magistrate, Birbhum, on 31st of December, 2002, being annexure ''P/9'' to the writ petition, cannot be sustained and the same is accordingly quashed. The respondents- authorities are directed to take immediate appropriate steps to transfer the control of Suri Bus Stand to Suri Municipality.
In compliance with the aforesaid order, Suri Bus Stand was transferred to the Municipality. The record of proceedings prepared on the occasion of transfer of Suri Bus Stand to the Municipality is part of the counter-affidavit filed on behalf of the Municipality in this proceeding. Particulars of staff of Suri Bus Stand who on being treated as its regular employees would have their services transferred to the Municipality were mentioned therein. However, it is noted that the list of employees did not contain the name of the petitioner, who at that point of time and even today is under suspension. With effect from the date of transfer, the subsistence allowance that was earlier being paid to the petitioner was stopped.
The petitioner had the occasion to invoke this Court''s writ jurisdiction by filing W.P. No. 15302(W) of 2005 feeling aggrieved by non-payment of subsistence allowance by the Municipality. That writ petition was disposed of on 4.10.2005 by a learned Judge of this Court with a direction upon the Chairman of the Municipality to consider the petitioner''s representation dated 3.4.2004, being Annexure P/30 of the writ petition, in the manner directed therein within 7 weeks from date of communication thereof.
It is noted that despite service of copy of the writ petition on the Municipality, none had appeared before this Court when the writ petition was disposed of.
In compliance with the order of Court, the Chairman of the Municipality duly heard the petitioner and passed an order on 9.l.2006 (contained in memo dated 13.1.2006) holding, inter alia, as follows:
***** In my opinion the issues raised by the writ petitioner has to be decided by the erstwhile Suri Bus Stand Committee as it falls within its jurisdiction and all relevant files should be with the Secretary, Suri Bus Stand Committee and Sub-Divisional Officer, Suri, Sadar. Under such circumstance, I am not in a position to extend any relief to the writ petitioner as prayed for and the petition dt.3.4.04 of the writ petitioner is considered and disposed of in compliance of the order dt.4.10.05 of the Hon''ble High Court, Calcutta passed in W.P. No. 15302(W) of 2005.
This order of the Chairman of the Municipality is the subject matter of challenge in this writ petition wherein the following relief has been claimed:
a) A declaratory writ declaring that the petitioner is an employee of Suri Bus Stand now under the Control and Management of Suri Municipality;
b) A writ in the nature of Mandamus commanding the respondent No. 4 to forward the name of the petitioner as an employee of Suri Bus Stand Committee to the Municipality;
c) A writ in the nature of Mandamus commanding the respondents Suri Municipality to treat the petitioner as an employee of Suri Bus Stand after forwarding the name of the petitioner by the respondent No. 4 and allow the petitioner to enjoy service benefits under Control and Management of Suri Municipality;
On 9.1.2007, while admitting the writ petition, a learned Judge of this Court had directed the Additional District Magistrate, Birbhum, being the respondent No. 4 herein, to pay unpaid subsistence allowance due and payable to the petitioner by 31.1.2007. The order was passed without prejudice to the rights and contentions of the parties.
Counter-affidavit filed on behalf of the respondents 1 to 5 reveals a belated effort on their part to comply with the order of Court dated 9.1.2007. The Additional District Magistrate, Birbhum by his memo dated 14.3.2008 addressed to the Chairman of the Municipality observed that since Suri Bus Stand had been taken over by the Municipality and on the relevant date i.e. 1.4.2004, the petitioner was still an employee of the said Committee, the direction of the Court for payment of unpaid subsistence allowance has to be met out of the funds of the said Committee which presently is under the control of the Chairman. It was indicated therein that total amount of Rs. 6,23,402.36p (lying in the bank account and in cash) was handed over to the Municipality and, therefore, the District Administration has no fund to disburse subsistence allowance to the petitioner.
On receipt thereof, the Chairman of the Municipality replied to the Additional District Magistrate, Birbhum by his memo dated 28.4.2008. On perusal of the relevant official records, it was observed that documents regarding the petitioner''s appointment, service and suspension could not be traced and that at the time of transfer of control and management of Suri Bus Stand to the Municipality, no such documents were furnished to his office. Since he was in the dark regarding the matter, he requested the Additional District Magistrate to furnish the office records, service book etc. for complying with the order of the Court.
This letter was responded to by the Additional District Magistrate by his memo dated 28.6.2008. It was observed therein that the service records of the petitioner were not in his office. However, certain other letters referred to therein were forwarded to the Chairman of the Municipality with a request to consider the case of the petitioner and for taking necessary steps for payment of subsistence allowance to him immediately.
Nothing fruitful has since transpired and the order regarding payment of arrear subsistence allowance has not yet been complied with.
On exchange of affidavits, the present petition appeared before me for final disposal. The parties have been heard at length.
There appears to be no dispute that the petitioner was appointed on temporary basis by the said Committee in 1980, his service was confirmed in 1983 retrospectively with effect from 1982 and that he was suspended from service in contemplation of disciplinary proceedings. In view of the undisputed fact that no final order was passed, I have no hesitation in proceeding on the premise that there was no valid termination of the disciplinary proceedings and that the petitioner continued to remain under suspension, drawing subsistence allowance till 31.3.2004 as claimed by him.
In the meantime, in compliance with this Court''s order dated 11.11.2003, charge, control and management of Suri Bus Stand has been taken over by the Municipality on 1.4.2004. The document at page 8 of the counter-affidavit filed by the Municipality being the record of proceedings dated 1.4.2004 at the time of transfer of Suri Bus Stand to the Municipality reveals, inter alia, the following decision:
All assets including the fund operated by Bus Stand Committee, all liabilities including the employees of Suri Bus Stand are also being transferred to the Municipality.
It would be evident from the above that all assets and liabilities of Suri Bus Stand including employees thereof stood transferred to the Municipality w.e.f. 1.4.2004. At this juncture of handing over charge, management and control of Suri Bus Stand to the Municipality, the said Committee did not bring to the notice of the Municipality the status of the petitioner as a suspended employee of Suri Bus Stand. I have no doubt in my mind that had the petitioner''s status been disclosed by the said Committee to the Municipality, he would have also been taken over by it like all other staff, albeit as a suspended employee. The fact that the petitioner was duly appointed by the said Committee, that he was placed under suspension in contemplation of disciplinary proceedings and that his service had not been terminated as on date of transfer of Suri Bus Stand to the Municipality being undisputed facts, these are considered sufficient material for this Court to hold that had he not been suspended, transfer of his service to the Municipality would have been an automatic process and, thus, he would have been entitled to be treated as an employee of the Municipality w.e.f. 1.4.2004.
Mr. Mookerjee, learned Counsel appearing for the Municipality contended that one Cashier-cum-Caretaker had already been appointed by the said Committee in place and in stead of the petitioner and, therefore, the Municipality would not be in a position to employ two employees on one post. This submission has justification to this extent that two employees cannot work on one post but in all fairness, the said Committee (which included the Sub- divisional Officer, Sadar, Suri, who was the ex-officio Executive Officer of the Municipality as a member) while handing over charge, control and management of Suri Bus Stand to the Municipality ought to have disclosed the status of the petitioner so as to enable it take the petitioner on its rolls as a regular employee. However, by not disclosing such fact, the said Committee acted to the petitioner''s detriment and prejudice. I am of the further considered view that for such mistake committed by the said Committee, the petitioner cannot suffer. It is worth noting that the writ petition for handing over charge, control and management of Suri Bus Stand to the Municipality had been filed by some of the councillors of the Municipality. Once the Court directed transfer of Suri Bus Stand and the Municipality intended to take charge, control and management thereof including all its assets and liabilities together with all the employees of the same, it could have no other option but to treat the petitioner as its employee. Erroneous exclusion of the petitioner''s name from the list of employees who had been employed by the said Committee and were working under it at the relevant point of time cannot usefully be cited as a justification not to treat him as an employee of the Municipality.
At the same time, I cannot overlook the Municipality''s interest. It was not aware of the status of the petitioner as on date of transfer. To saddle the Municipality with the liability of making payment of arrear subsistence allowance since the date of transfer would definitely work out prejudice to the Municipality, which is one of the cash-starved municipalities of the State as contended by Mr. Mookerjee. Having regard to the peculiar facts and circumstances of this case, the petitioner is entitled to partial relief as indicated hereafter and to balance the equities, the following directions are issued:
(i) The petitioner shall be treated to be a regular employee of Suri Municipality w.e.f. 1.4.2004;
(ii) The petitioner shall be accommodated in any vacant post in the Municipality commensurate with his qualification on terms and conditions which govern employees holding similar posts. If there is no vacancy in any such post, the Municipality shall approach the respondent No. 1 for creation of a supernumerary post. Such post shall be personal to the petitioner and shall stand abolished on his attaining the age of superannuation. If the Municipality makes an approach, the respondent No. 1 shall sanction creation of supernumerary post within a month;
(iii) Since the action of the Municipality in denying subsistence allowance to the petitioner is not totally unjustified, he shall not be entitled to any payment till re-engagement;
(iv) The petitioner''s service in the Municipality shall be counted from 1.4.2004 for the purpose of computation of retiral benefits; and
(v) The disciplinary proceedings initiated against the petitioner shall be deemed to have been abandoned. Exercise as directed above to engage the petitioner shall be undertaken as early as possible but not later than 2 (two) months from date of receipt of certified copy of this order.
The writ petition, accordingly, stands disposed of without order for costs.
Urgent photostat certified copy of this order, if applied for, shall be furnished to the applicant expeditiously.