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Nirendra Kumar Banerjee and anr. Vs. Commissioner, Corporation of Calcutta and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Judge
Reported in(1968)IILLJ220Cal
AppellantNirendra Kumar Banerjee and anr.
RespondentCommissioner, Corporation of Calcutta and anr.
Excerpt:
- .....disputes between the corporation of calcutta and its employees, including employee in the food supply department of the corporation, were referred to an industrial tribunal for adjudication, as far back as february 1948 and the award of the tribunal was published in the calcutta (sic) the on 23 july 1948. there may have been some tardiness in notifying acceptance of the award. ultimately, however, on 2 september 1948, the administrative officer of the corporation of calcutta passed the following orders:i have gone through the petition of the calcutta corporation employees' association, dated 28 august 1948, asking for the continuance of the existing food concession to the employees. the employees' association has stated in the petition that none of the parties on the employees'.....
Judgment:

B.N. Banerjee, J.

1. Certain industrial disputes between the Corporation of Calcutta and its employees, including employee in the Food Supply Department of the Corporation, were referred to an industrial tribunal for adjudication, as far back as February 1948 and the award of the tribunal was published in the Calcutta (sic) the on 23 July 1948. There may have been some tardiness in notifying acceptance of the award. Ultimately, however, on 2 September 1948, the Administrative Officer of the Corporation of Calcutta passed the following orders:

I have gone through the petition of the Calcutta Corporation Employees' Association, dated 28 August 1948, asking for the continuance of the existing food concession to the employees. The employees' association has stated in the petition that none of the parties on the employees' side; who represented in the dispute, has accepted the award of the tribunal. This attitude on the part of the employees is not proper. The tribunal's award is binding on bath the parties, the employers and the employees. As far as the Corporation is concerned, I have already passed orders accepting the award in toto. I am also prepared to consider real cases of anomalies and genuine grievances arising out of the award. In fact, I have already passed orders to put up to me such cases without delay....

2. The two petitioners say that they became eligible to benefits under the inward. This is. however, denied in the affidavit-in-opposition, in which it is stated that all clerks in the Food Supply Department being already in the grade of Rs. 70-220, there was not a single clerk in the lower grade mentioned in the award and consequently the question of implementing the award in the Food Supply Department did mot arise. With this controversy, however, I am not concerned in this rule.

3. Long after the publication of the award, on 26 April 1968, the Corporation of Calcutta, at its meeting, passed a resolution granting some personal benefits to certain employees as herein below quoted:

I. (a) That the following staff, who are working on deputation to the Food Supply Department, should revert to their original posts on scales of pay noted against each with higher initial salary in certain cases where recommended and merging their special pay with the salary in placing them in the new grade in all other cases as per annexure A attached to this resolution, it being former recommended that the new scales of pay recommended should come into effect on and from 1 March 1861, the schedule of establishment as contemplated in Section 78 of the Act being amended accordingly.

(b) That in consideration of the fact that a large number of employees in the Food Supply Department hold no perm-anent appointment but are working in temporary posts, the Sub-Committee recommends that the temporary posts held by the incumbents should be made permanent with effect from 1 August 1948, the designations of the posts being also changed with effect from that date to the designations as noted against each and that they be granted the scale of pay as recommended in the annexure B with effect from 1 March 1961, the schedule of establishment as contemplated in Section 78 of the Act, being amended accordingly.

II. That the incumbents whose existing pay shall exceed the scale of pay recommended by the Sub-Committee shall draw their existing pay, the same being personal to them.

III. That all posts that are now vacant in the Food supply Department should be abolished with effect from the date on which vacancies occured and that the schedule of establishment as contemplated in Section 78 of the Act the amended accordingly.

IV. That in case the posts in the parent departments held by the employees as in Para. 1(a) above, are already filed up by temporary appointment, each employees will remain as surplus on the pay recommended by the Committee, to be absorbed as soon as vacancies occur in their parent department or elsewhere in comparable posts.

[Names omitted.]

4. The petitioners say that they became entitled to the benefits under the resolution.

5. On 80(sic) April 1963, there was an attempts made for rescission(sic) of the resolution, which attempt, however, failed for want of req(sic) number of signatories sponsoring the resolution.

6. Thereupon, the Standing Finance Committee passed the following resolution on 5 August 1963, asking the respondent-Commissioner not to give effect to the resolution of 26 April 1963. The material portion of the resolution or the Standing Committee in hereinbelow quoted:

Inviting the attention of the Committee to the resolution passed by the Corporation on 26 April 1963, in connexion with the matter relating to the Food Supply Department, the Chairman suggested that since the matter was pending reconsideration by the Standing Finance Committee, the Commissioner might be requested to postpone implementation of the said resolution of the Corporation for a short while.

The Committee agreed.

The Chairman further suggested that copies of the above decision of the Committee might also be forwarded to the D.O.I. and the F.O. and Chartered Accountant for their information.

7. The Committee agreed.

8. Thereafter, on 16 December 1963, the Standing Finance Committee passed a resolution recommending 'supersession' of the Corporation resolution dated 26 April 1963 ('partial modification' according to the petitioners) in the following language:

I. (1) That all poets exleting on 1 August 1948, in the Food Supply Department be made permanent with effect from that date as per Corporation resolution, dated 26 May 1959. As the department in going to be abolished, the question of allotment of upper subordinate clerical grade will not arise.

(2) That holders of these posts appointed directly in the Food Supply Department be made permanent in their respective posts on existing grade and pay, with effect from the dates of their substantive or temporary appointment! and then transferred to other departments in equivalent or comparable posts.

(3) That permanent employees of other department transferred to Food Supply Department be allowed merger of special pay with their basic pay as a special case and be made permanent in their existing posts in the Food Supply Department and then transferred to other departments in equivalent or comparable posts.

(4) That in case the existing pay of any employee exceeds the maximum of the grade by merger of special pay, such pay shall be deemed as personal to such employee against the standard grade.

(5) That employees appointed in vacancies caused due to the transfer of permanent employees to the Food Supply Department, be also made permanent in their respective posts from the date of their appointment in such posts.

(6) That standard grades attached to Food Supply Department which were not reviled by the Corporation as pep resolution, dated 14 August 1959, be revised in the manner as was done in cases of similar posts in the Corporation resolution, dated 22 January 1960.

(7) That the mazdoors of the Food Supply Department who have read up to class VIII be absorbed in the posts of peons, bearers, etc., in the grade of Rs. 40-60 plus usual allowences.

(8) That employees of the Food Supply Department already appointed temporarily in different posts in other departments be allowed revision of grades equivalent to such posts to facilitate their permanent absorption in such posts.

II. That the schedule of establishment an contemplated in Section 78 of this Act be amended accordingly.

The Corporation, at its meeting held on 14 February 1964, is said to have passed a resolution adopting the recommendation of the Standing Finance Committee in the following language:

1. That with a view to removing certain anomalies and omissions arising out of the Corporation resolution dated 26 April 1963, regarding the Food Supply Department, it be recommended in partial modification of the resolution of the Corporation dated 26 April 1963.

[Clauses I (1) to (8) and Clause II of the resolution of the Standing Finance Committee repeated].

9. The respondent-Commissioner is said to have issued a circular, dated 31 March 1964, giving effect to the last resolution. The material portion of the circular is hereinafter quoted:

1. That with a view to removing certain anomalies and omissions arising out of the Corporation resolution, dated 26 April 1963, regarding the Food Supply Department, it be recommended in superaession of the resolution of the Corporation dated 28 April 1963.

[Corporation resolution, dated 14 February 1964, repeated,]

I hereby direct that the existing arrangements regarding the employees of the Food Supply Department who have been transferred to various depertments of the Corporation to work there as an administrative measure, do continue excepting the staff placed under the Special Deputy Commissioners and Sri Gopal Chandra Roy and Sri Shushil Kumar Bose now working in the Vigilance Department (separate orders regarding them have been passed by me) pending absorption in equivalent or comparable posts.

Heads of departments and offices under whom such employee of the Food Supply Department have been transferred to work as an administrative measure, are hereby requested to submit list showing the partionars(sic) of the posts against which they are working, within seven days from the date hereof to me positively.

They are also requested to submit a separate list of existing employees as enumerated in the Corporation resolution No. (5) quoted above showing the particulars or the posts in which they were appointed, within seven days from the date hereof.

10. The two petitioners allege that the resolution, dated 14 February 1964, and the circular, dated 31 March 1964, unlawfully deprived the petitioners of the benefits under the resolution dated 26 April 1963 and the award of 1848.

11. Aggrieved by the resolution dated 14 February 1964, and the circular; dated 31 March 1964, the petitioners moved this Court, under Article 226 of the Constitution, praying for a writ of mandamus directing the respondents not to give effect to the circular, dated 31 March 1961, (sic) to give effect to the resolution, dated 26 April 1963 and the award of 1948, for a writ of prohibition prohibiting the respondents from giving effect to the circular, dated 31 March 1964, and for a writ of certiorari quashed the said circular and the resolution dated 14 February 1964 in so far an they controverted the resolution of 26 April 1963 and obtained this rule.

12. Two points were urged in support of the rule. The first point argued was a point as to the competency of the Corporation to pass the resolution, dated 14 February 1964, regard being had to the provisions contained in the rules of business, framed under Section 97 of the Calcutta Municipal Act, 1951. Reliance in this context was placed on rules 18(7) (a) and 18(7)(b) which read as follows:

(7) (a) No motion to alter any resolution or any portion of a resolution which has been passed by the Corporation within the proceeding six months shall be considered until such resolution or the portion sought to be altered has first been rescinded. No motion to rescind such resolution or a portion of it shall be considered unless

(1) previous notice has been given under this rule by a member supported by nine other members, and

(2) a majority of the members present and voting first give permission to the member to move it:

Provided that if a Standing Committee which ordinarily deals with the subject-matter of the resolution recommended such rescission of alteration of the previous resolution within the period of six months, the same shall be considered by the Corporation:

Provided further that such, motion or recommendation shall not refer to a resolution to which effect has already been given or on which action has already been taken:

Provided also that no motion to alter any resolution or any portion of a resolution which relates to election of a person or persons can be moved.

(b) When one such motion or recommendation has been disposed of by the Corporation, it shall not be admissible to make a similar motion or recommendation within a further period of six months except with the consent of therefourths of the number of members present and voting.

13. It was contended that the respondent-Corporation passed a resolution on 26 April 1963, which should have survived for at least six months thereafter. But certain Councillore unlawfully tabled a resolution for rescission of the earlier resolution, on 30 April 1963, which the Corporation duly rejected at its meaning held on 2 August 1963. No resolution for resolution of the resolution dated 23 April 1963, it was contended, could be considered unless after the expiry of six months thereafter find except in accordance with the procedure prescribed by Rule 18(7)(a). The motion by the Standing Finance Committee, for rescisation of the resolution, dated 28 April 1963, was passed on 16 December 1963, within six months of 2 August 1963. Such a resolution, it was contended, should not have been taken up for consideration by the Corporation, before the expiry of the time-limit. Then again the procedure for consideration of the resolution, at in Rule 18(7)(a). was not followed. That, it was contended, made it incompetent for the Corporation to consider the resolssion resolution.

14. This argument is misconceived. The resolution, dated 26 April 1963, was rescinded on 14 February 1964; that was beyond the six months' limit. Assuming for the sake of argument that the time was to run from 2 August 1963, when the unlawful resolution for resclssion(sic) tabled by some member of the Corporation was rejected by the Corporation, even then, 14 February 1964, when the resscission resolution was actually passed. was beyond the period of six months prescribed by Rule 18(7)(a). The real infirmity in the argument, however, is that it ignores the first proviso to Rule 18(7)(a), which permits the Corporation to consider a resolution, within the period of six months, if sponsored by the relevant Sub-Committee. In this case the (sic) resolution was recommanded by the Standing Finance Committee which was the relevant Sub-Committee, on 16 Dec-ember 1963. The Corporation was empowered to consider this resolution even within six months.

15. The other argument, in support of the rule; was that the resolution, dated 14 February 1961, 'partially modified' the resolution; dated 26 April 1963, but the respondent-Commissioner's circular, dated 31 March 1964, misdescribed the resolution as superseding the resolution dated 28 April 1963 and that such a circular should not be sustained. This argument is wrong. The original resolution both of the Standing Finance Committee, dated 16 December 1963, and of the Corporation, dated 14 February 1964, were produced before me and were marked respectively as Ext. 2 and 1. They go to show that there ware typographical errors in the printed copy of the resolution and the words ' in partial modification' were corrected as ' in super-session.' This is also what is pleaded in Para. 13 of the affidavit-in-opposition.

16. It was, however, contended on behalf of the petitioners that the certified copy of the resolution, dated 14 February 1964, supplied to the petitioners (Ex. A) went to show that the words used were ' In partial modification.' Certified copy no doubt supports the petitioner but the certified copy being at variance with the original must be ignored, however bad it may be on the part of the respondent-Corporation to issue incorrect or misleading certified copies to applicants for copies.

17. Both the arguments in support of the rule fail and I discharge the rule. Regard being had to the fact that the petitioners may have been considerably missed by the wrong certified copy supplied to them, I make no order as to costs.


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