Smt. Soma Goswami v. The State Of Tripura And 7 ORS

Case No :WP(C) 0000411/2013 Party Name : Smt. Soma Goswami Vs The State Of Tripura & 7 Ors THE HONBLE MR. JUSTICE S.TALAPATRA

Smt. Soma Goswami, wife of Sri Satyendra Chakraborty and daughter of late Ramendra Narayan Goswami, resident of village Kalachari, P.O. Garadtilla, P.S. Kamalpur, District : Dhalai, Tripura presently residing at:

Village -Netaji Nagar, P.O. and P.S. Ambassa, District : Dhalai Tripura .................petitioner

VERSUS

1. The State of Tripura, represented by its Secretary-Cum-Commissioner to the Department of Youth Affairs and Sports, Government of Tripura, P.O. Kunjaban, P.S. Kunjaban Out Post, District : West Tripura

2. The Director, Department of Youth Affairs and Sports, Government of Tripura, P.O. Agartala, P.S. West Agartala, District : West Tripura

3. The Sub Divisional Youth Affairs and Sports Officer, Head of Office and Drawing and Disbursement Authority, Government of Tripura, P.O. Kamalpur, District : Dhalai, Tripura

4. Sri Madhab Sabdakar, son of Unknown, resident of Village Fulchari, P.O. Kamalpur, District : Dhalai

5. Smt Mitali Dutta, wife of Sri Dipak Bhattacharjee, village and P.O. Kamalpur, District : Dhalai, Tripura

6. Smt Shiuli Das, wife of unknown, resident of village Unakuti,District Youth Affairs and Sports Office, P.O. Kailasahar, District : Unakuti

7. Sri Nripendra Chandra Das, son of Rajendra Das, resident of village Harerkhola, P.O. Kamalpur, District : Dhalai, Tripura

8. Smt Swapna Dey, wife of Sri Tamal Dutta, resident of Vijoy Kumar School, P.O. Agartala, P.S. West Agartala, District : West Tripura .............Respondents For the petitioner : Mr. A.Bhowmik,Advocate For the respondents : Mr. T.D.Majumder,G.A.

B E F O R E THE HON'BLE MR. JUSTICE S. TALAPATRA 26.11.2015 Heard Mr. A. Bhowmik, learned counsel appearing for the petitioner as well as Mr. T.D. Majumder, learned Government Advocate appearing for the respondents. The petitioner filed a writ petition being WP(C)No.183 of 2013 earlier canvassing the same grievance and that writ petition was disposed of, with a direction that : " it would meet justice if the petitioner is directed to submit a representation to the respondent No.2, the Director, Department of Youth Affairs and Sports, Govt. of Tripura within a period of 15 days from today, and the respondent No.2 shall dispose of the same within a period of two months form the date of receipt of the representation, if any filed, by a reasoned order." In terms of the said order, the respondent No.2 by the memorandum dated 06.09.

2013, Annexure-P/12 to the writ petition, regretted to give the petitioner the benefits- firstly, inducting her as the Casual Worker and thereafter, as the DRW,Group-D with effect from 10.08.2005, when the respondents No. 4,5,6,7 and 8 were given the same benefits. Being aggrieved by the said memorandum dated 06.09.2013, hereinafter referred to as the impugned memorandum, this second writ petition has been preferred by the petitioner. Mr. A. Bhowmik, learned counsel appearing for the petitioner has at the beginning submitted that the premise for consideration of the representation filed by the petitioner was entirely inappropriate inasmuch as irrelevant consideration has been taken whereas the relevant consideration was left out. It is not in dispute that the private respondents namely Madhab Sarkar(the respondent No.4) and Smt.

Mitali Dutta(the respondent No.5) were appointed as the Scout Master or Folk Leader by the memorandum dated 28.10.1986(Annexure-P/1). But the said memorandum does not speak of any remuneration for such engagement. However, they had allotted schools where they would discharge their responsibility either as the Scout Master or as the Folk Leader and that would be apparent from the memorandum dated 28.10.1986 itself. Mr. Bhowmik, learned counsel for the petitioner having referred to a certificate dated 27.07.2013 issued purportedly by one Assistant Head Master and Head of the Office and D.D.O., Kalachari S.B. School(now Kalachari Class XII School) has asserted that from 01.11.1986 to 04.09.2006, the petitioner worked as the Bulbul teacher in the said senior basic school. From the memorandum dated 27.09.

1988, Annexure-P/3, it transpires that the petitioner was given charge of running Bulbul in Harerkhola S.B. School. For the first time, in the memorandum dated 27.09.1988, the following observation has been made : "It may be noted here that, if higher authority accord sanction of honourium/in favour of Smt. Swapna De then she will be allowed to run two units as per rules." But in respect of the petitioner there is no such observations. At least, no such records has been placed. Mr. Bhowmik, learned counsel has brought to the notice of this court another "Duty Certificate" dated 16.05.2013, Annexure P/4 to the writ petition issued by the Teacher-in-charge, Harerkhola High School, Kamalpur, Dhalai, Tripura, showing that since 29.09.1988 till date i.e. 16.05.

2013, the petitioner has been working as the Flock Leader(trained) in the said school sincerely and honestly. This is really surprising that how the petitioner has worked in the two schools on the same time as from the memorandum dated 27.09.1988, it clearly appears that the petitioner was given the charge of running Bulbul in Harerkhola S.B. School. This creates serious doubt about the genuineness of the certificate issued by the Assistant Head Master of Kalachari Class XII School, Annexure P/2 and the certificate issued by the teacher-in-charge Harerkhola High School, Annexure P/4. Another certificate has been issued by the Head Master, Manikbhander S.B. School, Kamalpur, Dhalai, Tripura to the effect that since 06.09.2006 @@@@@till date@@@@@ i.e. 17.05.

2013, the petitioner was discharging the duty as the flock leader with full satisfaction of the authority of the said school. The said certificate Annexure P/5, again comes in conflict with the content of the "Duty Certificate" dated 16.05.2013. There is no explanation in this regard in the writ petition. In the year 2005, as Mr. Bhowmik, learned counsel for the petitioner has pointed out, by the memorandum dated 14.09.2005 Annexure P/6, the private respondents namely Madhab Sabdakar and Shiuli Das were engaged as the casual worker Grade-C and they were given posting respectively in the office of the Sub-Divisional Youth Affairs & Sports Office, Kamalpur and East Dalucherra High School by the same memorandum. The petitioner did not react to such memorandum till she filed the writ petition being WP(C) No.183 of 2013.

Thereafter, by the memorandum dated 26.08.2013, the private respondents were made DRW by converting their engagement of the casual worker. But this time also the petitioner was left out. However, the petitioner has reacted by filing this writ petition. However on 04.05.2013, the petitioner filed one representation (Annexure P/9 to the writ petition) where she asserted as under : "That Sir, from year 1995 to 05.09.2006 I was seriously ill and took treatment continuously and later, after completion of my treatment I also informed to the Authority in proper time for doing the needful. It is also noted that I have joined and done various programmes randomly as per order of the Department time to time.

And during this above period above noted persons got another order from your end that the persons are appointed as casual worker but except me. In this position, I am unable make out why I have not getting the same order from your kind end and immediately. These are also got the very suitable order of "permanent in service" in the said dept. That Sir, I suppose in other hand, the Dept. also took step, like violation of Indian Constitution by giving service in Employment of a Minor aged person in the said Dept. Prove shall be fleshed if it is necessary in future the Department has ran over the constitution of India very roughly." [Emphasis supplied] Having confronted with the said representation by the order dated 10.11.2014, this court passed the following order : "Heard Mr. A.

Bhowmik, learned counsel appearing for the petitioner substantially as well as Mr. T.D. Majumder, learned Govt. Advocate appearing for the state. It appears from the record that the Director of Youth Affairs & Sports, Tripura had entrusted the Head of Office & D.D.O, Sub-Divisional Youth Affairs & Sports, Kamalpur, Dhalai Tripura, to ascertain whether the petitioner worked continuously for ten years as the Volunteer (Folk Leader) when the Memorandum dated 14.09.2005 (Annexure-P/6 to the writ petition) was issued in favour of the private respondents, declaring them to be treated as Casual Workers w.e.f. 10.08.2005. On perusal of the report filed by the said Head of Office and D.D.O., it transpires that the petitioner had served for the requisite period under consideration.

Despite such preliminary observation made by the said officer, by the impugned order dated 06.09.2013 (Annexure-P/12 to the writ petition), the Director of Youth Affairs & Sports, Tripura has observed that on the basis of the petitioner's own representation dated 04.05.2013 (part of Annexure-R/2 to the affidavit-in-opposition filed by the official respondents), the petitioner herself has admitted that from the year, 1995 to 05.09.2006 she was absent from duty. As such,since the petitioner does not fulfil the requisite period of service as Volunteer, her representation for declaring the status as has been so conferred to the private respondents, has been denied. From the representation dated 04.05.2013, it cannot be definitely inferred that the petitioner did not serve on that period even though there are some indication to that effect.

What has surprised this court is that the assertion made in the said representation was not even enquired into by the Head of Office & D.D.O., Sub-Divisional Youth Affairs & Sports, Kamalpur, Dhalai Tripura at the time of making the report to the Director of Youth Affairs & Sports, Tripura. To obviate that equivocality /confusion, the Director of Youth Affairs & Sports, Tripura shall make further investigation in respect of absence of the petitioner, as purportedly she has admitted in her representation dated 04.05.2013. The said report shall be furnished to this court on or before 11.12.2014." Mr. T.D.Majumder, learned Government Advocate appearing for the respondents No.1,2 and 3 has submitted that there is no reliable record to show that the petitioner worked since 28.10.1986 till date. From the communication dated 23.12.

2013, made by the Sports Officer Scouts and Guides section, Annexure R/1 to the counter affidavit filed by those official respondents No.1,2 and 3, it appears clearly that the petitioner was under the disposal of the Jt. Secretary of Dhalai District, Kamalpur and was working as the volunteer but there is no record regarding his engagement in the Scouts & Guide Section of the Directorate. One of the physical instructors of Fulchari High School by the communication dated 20.12.2013, has also apprised the Director, Youth Affairs & Sports, Government of Tripura. in this regard. The District Organising Commissioner, Kamalpur, Bharat Scouts & Guides has observed that the petitioner occasionally performed the duties in the Harerkhola High School and Manik Bhander S.B. School as the unpaid volunteer. Mr. T.D.

Majumder, learned government advocate has further submitted that in terms of the order of this court dated 10.11.2014, the Director of Youth Affairs & Sports has carried out an inquiry and finally observed that the petitioner was absent from the activities of the Scouts & Guides or as the Flock Leader during the period from 1995 to 05.09.2006 and as such the relief as claimed in this writ petition is not tenable. In reply, Mr. Bhowmik, learned counsel appearing for the petitioner has submitted that the said inquiry report has not dealt with the relevant materials, placed with the writ petition. In this regard he has referred a communication made to the Director of Youth Affairs & Sports, Government of Tripura, Agartala by B.C. Sutradhar, Head of Office & D.D.O.

Subdivisional Youth Affairs & Sports, Kamalpur, Dhalai Tripura, Annexure P/11 to the writ petition, where he has categorically stated that the petitioner has done her works since 01.11.1996 to 04.09.2006. The said Head of Office is the same person who has submitted the report to the Director of Youth Affairs & Sports on 04.05.2013, Annexure R/2 to the counter affidavit. It is no denying fact that the memorandum dated 11.01.2013 which has been dwelled upon in the said report contends a policy of the government as to the engagement of the DRWs. The same officer filed another report on 29.12.2014, Annexure R/4 to the additional counter affidavit, filed by the respondent No.1,2 and 4. In that report, the said officer has observed as under : "Moreover, I would like to inform you that Smt. Goswami was seriously ill w.e.f.

1995 to 2006 & she could not continue her works, after 2006, after she was partially involved in the departmental programme when called for without honorarium." The Director of Youth Affairs & Sports has also observed that on 14.01.2015 a communication was made to the petitioner to appear on 17.01.2015 in person as the petitioner was not given any opportunity earlier, but the petitioner did not appear before the Director of Youth Affairs & Sports and did not submit any document in support of her claim. From the Annexure- E, which is a reply dated 17.01.2015, by a lawyer engaged by the petitioner, it appears that the petitioner did not file any document to the Director of Youth Affairs & Sports as the petitioner has submitted all the required documents with the writ petition. Mr.

Bhowmik, has finally submitted that the observation that the petitioner was absent from the duties since 1995 to 05.09.2006 is not based on any foundation but on assumption on the basis of the representation filed by the petitioner on 04.05.2013. According to Mr. Bhowmik, learned counsel no where in the said representation petitioner has stated that she was absenting from the duty. It appears that the scheme as adopted by the Government was to declare the part time workers who were engaged prior to 31.03.2003, and had completed 10 years of service as on 30.11.2012 as the DRW, Group- D with effect from 10.08.2005. The private respondents by virtue of that policy, contained in the memorandum dated 11.01.2013, Annexure R/3 to the writ petition, were made the DRWs.

Even the petitioner nowhere asserted that she was a paid volunteer, part-time or full-time casual worker. On the contrary, the documents relied by the petitioner, as referred earlier, demonstrate that she was unpaid volunteer. The meaning of unpaid volunteer in the ordinary parlance would mean and imply that whenever she could devote her service she used to devote that service in the capacity of the folk leader. Now the solitary question that falls for consideration, in the conspectus of facts as laid hereinbefore, is that whether the petitioner can be brought within the ambit of the memorandum dated 11.01.2013, Annexure R/1 to the counter affidavit filed by the respondents No.1,2 and 3, or not.

If the petitioner@@@@@s casual employment can not come under the umbrage of the @@@@@part time worker for two hours or three hours or four hours@@@@@ the said memorandum cannot have any application whatsoever. It is really strange that in the entire body of the writ petition no averment is available as regards that she was paid as a volunteer, even if that was a part-time in nature, or she was in the casual employment. Hence, the writ petition is of no utility to discover cause for extending the benefit as provided by the memorandum dated 11.01.2013.

That apart, the petitioner@@@@@s approach to the competent authority Director of Youth Affairs & Sports, is so stunningly obdurate that even she has stated that in response to the letter written by the Director of Youth Affairs & Sports to submit documents if any, lying with her for purpose of considering whether she was under the same nature of service vis-a-vis the private respondents or whether she can be granted the benefits as granted to the similar private respondents or not, the petitioner has averred that whatever documents she had filed, those have been filed with the writ petition. She did not submit any document on such pretext.

This court has considered all the documents filed with the writ petition and is constrained to hold there is no reliable document or record to hold that the petitioner was in the part-time employment or any sort of casual employment enabling the authority to bring her within the ambit of the memorandum dated 11.01.2013 and accordingly, this court does not find any merit in the writ petition. The same is therefore dismissed. Despite what has been observed hereinabove the petitioner may make a representation with all the relevant records to the Director of Youth Affairs & Sports who may in turn adopt a lenient view.

As the petitioner has indubitably given voluntary service without any payment it should be explored whether the petitioner can be accommodated as the DRW or not, in recognition of her services rendered for benefit of the society. There shall be no order as to costs.

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