Gitgobinda Nad vs Prova Das

S.B. Sinha, J.—The Petitioner has filed this contempt application for willful disobedience of the Court's order dated January 15, 1993 passed by P.K. Mukherjee J. in C.O. No. 2956(W) of 1993.

This case depicts a sordid state of affairs.

The Petitioner claimed that he was appointed by the Block Development Officer, Binpur-ll Block. He holds a diploma in Engineering. He was initially appointed on a purely temporary basis by the B.D.O. Binpur-ll Block by an order dated March 7, 1983. The said appointment was made in reference to his own application dated January 6, 1983 on a consolidated pay of Rs. 20 per day on no work no pay basis from January 25, 1983 for the execution of Sakhabhanga cannel scheme. He was again engaged as a work charge sub-assistant Engineer on daily wage basis under the Executive Officer, Binpur-ll Panchayat Samiti on a purely temporary basis.

The Petitioner claimed that keeping in view the fact that he had been working for a long time as a work charge S.A.E. his service should be regularised.

The Petitioner filed a writ application earlier in this Court and Monoranjan Mallick, J. granted an order of status quo as regards the service of the Petitioner. The matter thereafter came up for hearing before Mohitosh Majumder, J. and the said learned Judge upon hearing the parties passed an order directing the B.D.O. Binpur-ll Block to embark upon an adjudication as regards the grievance of the Petitioner for his regularisation in the post of Sub-Assistant Engineer within a period of four weeks from the said date. The said order is contained in annexure "G" to the writ application. Thereafter by an order dated March 7, 1992 the Petitioner's application was rejected. He filed another writ application and by reason, of an order dated January 15, 1993 P.K. Mukherjee, J. upon taking into consideration the respective pleas of the parties directed the Respondent to regularise the service of the Petitioner within a period of six months from the date of communication of the order. The said writ application appears to have been filed on January 14, 1993 and appeared to have listed before P.K. Mukherjee J. on January 15, 1993. The said writ application was disposed of on the first day of hearing without giving any notice to the Executive Officer, Binpur-ll Panchayat Samiti or other Respondent Notice merely was served upon the Legal Remembrance.

Mr. Sadananda Ganguly, Learned Counsel appearing on behalf of the Petitioner has raised a short question in support of the application for contempt.

The Learned Counsel submits that keeping in view the fact that this Court passed a mandatory order as against the condemner/Respondent, they are bound to comply with the said order and it is futile to urge as has been sought to be done in the affidavit-in-opposition filed by the alleged condemner/Respondent that the Petitioner was not an employee of the State but was an employee of the Binpur-ll Panchayat Samiti.

The Learned Counsel contends that the principle of res judicata shall be attracted in the instant case, inasmuch as, a finality must be reached in the order particularly in view of the fact that the Respondents after a long time purported to be aggrieved by and dissatisfied with the said order dated January 15, 1993 preferred an appeal along with an application u/s 5 of the Limitation Act but the said application for condonation of delay having been rejected the entire appeal stood dismissed.

The Learned Counsel in this connection has drawn my attention to a decision of the Supreme Court in State of Uttar Pradesh Vs. Brahm Datt Sharma and Another, and submits on the basis thereof that in such a matter the principles of constructive res judicata shall apply. The Learned Counsel, however, contends that keeping in view the provision of Sub-section (3) of the Section 36 of the West Bengal Panchayat Act the State is the appointing authority in respect of the employees of the Panchayat Samiti also and in that view of the matter no illegality has been committed by the B.D.O. in appointing the Petitioner as a Sub-Assistant Engineer in Binpur-ll Panchayat Samiti. According to the Learned Counsel this Court while adjudicating any contempt proceeding shall only consider the question as to whether the Respondent has willfully and deliberately violated the order passed by this Court or not. In support of the aforementioned contention strong reliance has been placed by Mr. Sadananda Ganguly, Learned Counsel, upon a decision reported in Ranjugopal Mukherjee v. Ramapada Mahalder 1991 (II) C.H.N. 174.

The Learned Counsel for the Petitioner submits that the Petitioner has the requisite qualification and thus in the event the Petitioner's service is regularised, the State shall not be prejudiced at all.

Mr. Mukherjee, Learned Counsel for the condemner, however, submits that unfortunately in the writ proceeding the attention of the learned Judge was not drawn to the fact that the B.D.O. appointed the Petitioner only in his capacity as Executive Officer of the Panchayat Samiti and not as an employee of the State of West Bengal. According to the Learned Counsel from the various annexures annexed to the Affidavit-in-opposition filed by the Respondent/condemner it would appear that the Petitioner was engaged by the Binpur-ll Panchayat Samiti for execution of various development schemes and not by the State and thus the contention that the order was passed by P.K. Mukherjee J. without taking into consideration such vital fact must be held to be a nullity and the condemner cannot be said to have willfully and deliberately violated the Court's order.

From a perusal of the writ application it appears that annexure "B" to the writ application which is equivalent to annexure ''X-1'' to the affidavit-in-opposition affirmed by one Sri Nrayan Chandra Samanta that the Petitioner was appointed as a work charge Sub-Assistant Engineer under the Binpur-N Panchayat Samiti. The said offer of appointment was signed by the Executive Officer, Binpur-ll Panchayat Samiti. In terms of Section 119(1) of the West Bengal Panchayat Act Block Development Officer is an ex officio Executive Officer of the Panchayat Samiti. Sub-section (1) of Section 119 of the Act provides that the Block Development Officer shall be recalled by the State Government if a resolution to that effect is passed by the Panchayat Samiti at a meeting specially convened for the purpose by a majority of the total number of the members holding office for the time being.

Sub-section (2) of Section 119 empowers the Panchayat Samiti to make appointment of such other officers and employees as may be required by it. It also empowers the Panchayat Samiti to fix the salaries to be paid to the persons so appointed. In terms of Sub-section (3) of Section 119 of the Act the State Government has been empowered to make Rules relating to the method of recruitment and the terms and conditions of service including the pay and allowances superannuation, provident fund and gratuity of the employees of the Panchayat Samiti. From a perusal of the circular letter dated August 11, 1983 it appears that the Executive Officer should not put his signature on the offer of appointment. From the affidavit-in-opposition it appears that the Petitioner was not engaged in a perennial type of work. Be that as it may, from the records it is evident that the Binpur-ll Panchayat Samiti which is a juristic person was not added as Respondent in the writ petition. The Executive Officer of the Binpur-ll Panchayat Samiti although was added as Respondent but no notice was served on him. Even no notice was served upon the Block Development Officer. Notice of the writ application was served only on the learned Legal Remembrance.

The Learned Counsel for the State could not have represented the Panchayat Samiti nor could have represented the Executive Officer of the Binpur-ll Panchayat Samiti.

In this view of the matter, the order passed by Paritosh Kumar Mukherjee J. is not binding upon the said Panchayat Samiti. The Petitioner, as indicated hereinbefore, himself accepted the fact that he was appointed by the Executive Officer of the said Panchayat Samiti. It was not and could not be his case that he was appointed by the B.D.O. as an employee of the State Government. It appears from the writ application itself that some certificates have been issued by the B.D.O. in his favour but he must have done so in his capacity as ex officio Executive Officer of the Panchayat Samiti. The offer of appointment of the Petitioner was made in relation to a" particular project and the Petitioner can not claim to be regularised in the service in view of the fact that admittedly he was later on appointed in terms of the resolution adopted by the aforementioned Panchayat Samiti on December 22, 1988. Pursuant to the said resolution, the Executive Officer, Binpur-ll Panchayat Samiti, issued the offer of appointment on December 28, 1988.

16, The submission of Mr. Ganguly, Learned Counsel for the Petitioner to the effect that in terms of Sub-section (3) of Section 36 of the West Bengal Panchayat Act, the State Government becomes the appointing authority does not appear to be correct. Sub-section (1) of Section 36 of the Act empowers the Gram Panchayat to make appointment of employees as may be required. Sub-section (2) of Section 36 of the Act empowers the State Government to place at the disposal of the Gram Panchayat the services of such officers or other employees serving under it as it may think fit. Sub-section (3) of Section 36 of the Act merely empowers the State Government to make Rules relating to the method of recruitment and the terms and conditions of service including the pay and allowances, superannuation, provident fund and gratuity of the employees of the G.P. Similar provision, as noticed hereinbefore, exists in Section 119 of the said Act which falls under Chapter-X thereof relating to Establishment of the Panchayat Samiti.

In any event as indicated hereinbefore the order passed by Paritosh Kumar Mukherjee J. was not binding upon Binpur-ll Panchayat Samiti as the said Panchayat Samiti has not been impleaded as party Respondent in the writ application and as such the said Panchayat Samiti could not be held responsible for willful violation of the Court's order dated January 15, 1993. It is true that this Court in normal situation when adjudicating upon in a contempt proceeding cannot add or alter the order passed by the Court but the fact of the matter in the instant case, as indicated hereinbefore, is absolutely different in view of my finding aforementioned that the order passed by this Court is a nullity so far as Panchayat Samiti is concerned. The Executive Officer can sign the offer of appointment under the provision of the West Bengal Panchayat Act but in terms of the aforementioned Circular letter dated February 15, 1983 as referred to hereinbefore he is neither the appointing authority nor the disciplinary authority. He also could not have regularised the service of the Petitioner.

Mr. Ganguly, Learned Counsel, is correct when he submits that despite the order passed by this Court, the Petitioner has not got justice.

However, it must be borne in mind that keeping in view the definition of civil contempt as contained in Clause 2(b) of the Contempt of Courts Act, 1971 this Court cannot impose any punishment upon the condemner unless and until it arrives at a finding that the condemner has committed contumacious acts by violating the Court's order. Disobedience on the part of the B.D.O., Binpur-II Block, if any, in the peculiar facts and circumstances, cannot be said to be willful as he has nothing to do in the matter of appointment and/or other condition of service of the Panchayat Samiti.

Further more contempt is a matter between the Court and the condemner. A contempt proceeding cannot be taken recourse to for the purpose of execution of the Court's order. The jurisdiction of this Court to punish the condemner is limited. Such an order can only be passed in the event a definite finding of fact is arrived at by the Court that the Respondent is guilty of willful disobedience of the Court's order.

For the reasons aforementioned, I am of the view that it is not a fit case in which the condemner can be punished. However, keeping in view the facts and circumstances of the case I am of the view that the Panchayat Samiti may consider the matter sympathetically for appointment of the Petitioner upon compliance with the relevant Recruitment Rules, if any, and upon taking into consideration the fact that he has requisite qualification and worked for a long time.

Mr. Ganguly, Learned Counsel for the Petitioner submits that in view of my finding aforementioned, the Petitioner may be given an opportunity to pursue his alternative remedy, if any.

It goes without saying that the Petitioner may do so. For the reasons aforementioned, the contempt application is dismissed.