Calcutta High Court Weekly Round-Up: July 31 - August 5

NOMINAL INDEX

1. Nazia Elahi Khan vs State of West Bengal and Ors. 2023 LiveLaw (Cal) 201
2. The National Investigation Agency & anr. vs State of West Bengal & ors. 2023 LiveLaw (Cal) 202
3. Nigrani Sansthan Vs State Of West Bengal And Ors. 2023 LiveLaw (Cal) 203
4. The West Bengal Small Industries Development Corporation Limited WBSIDC Vs. Kaushalya Infrastructure Development Corporation Limited KIDCO 2023 LiveLaw (Cal) 204
5. Sulekha Chatterjee & Anr. Union Of India & Ors 2023 LiveLaw (Cal) 205
6. Susanta Ghosh v The State of West Bengal and others 2023 LiveLaw (Cal) 206
7. Sushil Kr. Gupta v The State of West Bengal & connected applications 2023 LiveLaw (Cal) 207
8. Goodricke Group Limited & Ors. v The State of West Bengal & Ors. 2023 LiveLaw (Cal) 208
9. The Board of Major Port Authority for the Shyama Prasad Mookerjee Port, Kolkata. v Marine Craft Engineers Private Limited. 2023 LiveLaw (Cal) 209
10. Mithu Dash @ Bhuiya v State of West Bengal & Anr. 2023 LiveLaw (Cal) 210
11. M/s. Odisha Slurry Pipeline Infrastructure Ltd. & Anr. v Rakesh Sharma & Ors. 2023 LiveLaw (Cal) 211
12. Goalbadan Mandal v State of West Bengal & ors. 2023 LiveLaw (Cal) 212
13. Raja Paul & Ors. v State of West Bengal & Anr. 2023 LiveLaw (Cal) 213

Case: Nazia Elahi Khan vs State of West Bengal and Ors.

Citation: 2023 LiveLaw (Cal) 201 The Calcutta High Court dismissed a PIL filed against West Bengal Chief Minister Mamata Banerjee (“private respondent”) for restraining her from using allegedly “provocative speeches” at the “Red Road religious congregation” on the occasion of Eid-u-Fitr, next year.

A division bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya orally remarked:

“A similar matter had come earlier…we didn’t entertain…and this is already over. Now what to do? We should issue an injunction against the private respondent? Who is the petitioner? How did she come to know of the speeches? Through a news paper report? Ah, the foundation of the PIL is only a newspaper report. You have to do some research. If it is hate speech according to you, the CrPC provides you sufficient remedies.”

2. Ram Navami Violence | Further Delay By State In Handing Over Investigation Files To NIA Would Be “Absolutely Contemptuous”: Calcutta High Court

Case: The National Investigation Agency & anr. vs State of West Bengal & ors.

Citation: 2023 LiveLaw (Cal) 202

The Calcutta High Court directed the State authorities to immediately handover all relevant investigation reports and files on the violence that occurred during Ram Navami celebrations in West Bengal to the National Investigation Agency (“NIA”).

The probe was transferred to NIA on orders passed by a Division Bench of the High Court, which were affirmed by the Supreme Court while dismissing an SLP filed by the State on 24^th July.

A single-bench of Justice Jay Sengupta held that the State’s challenge to the NIA Act could not come in the way of compliance of Court orders, and in any case, the point on vires of the NIA Act was not urged before the SC. It said:

The State had not raised any plea before the Hon’ble Division Bench, inter alia, challenging the vires of the National Investigating Agency Act. This issue was apparently not taken up by the State during hearing of the Special Leave Petitions before the Hon’ble Apex Court. If the State wants to take up such new issue before this Court, the same can fairly be contemplated by filing an appropriate application in due course. But, this cannot come in the way of complying with the directions passed by the Hon’ble Division Bench of this Court as affirmed by the Hon’ble Supreme Court.

3. Calcutta High Court Suggests State To Conduct Periodic Raids To Prevent Illegal Manufacture Of Packaged Drinking Water

Case: Nigrani Sansthan Vs State Of West Bengal And Ors.

Citation: 2023 LiveLaw (Cal) 203

The Calcutta High Court has suggested the State's Health and Family Welfare Department to conduct periodic raids in order to quell instances of illegal manufacture of packaged drinking water, without license.

Previously, the Court had sought a report regarding the measures taken by the State to ensure the safety of packaged drinking water. Upon perusing such report on Tuesday, a division-bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya disposed of the writ petition observing:

[This] problem is not a one-day affair and requires vigilant monitoring over all packaged drinking water manufacturers. Court suggests that a database be created by relevant department of State where all certified manufacturers can be enlisted and a caution notice be issued that without licenses no unit can produce packed drinking water. Apart from continuous monitoring, public may also be sensitized through leaflets and boards during festivals, warning the public not to drink water which are packed and do not display requisite permissions. The court trusts that the monitoring system is strengthened and continuous monitoring be done so that the safety and health of general public can be maintained.”

4. Arbitration Act | Admitted Facts Don’t Breach ‘Twin-Benchmark’ Of Fraud Or Corruption: Calcutta High Court Declines Stay Of Award

Case: The West Bengal Small Industries Development Corporation Limited WBSIDC Vs. Kaushalya Infrastructure Development Corporation Limited KIDCO

Citation: 2023 LiveLaw (Cal) 204

The Calcutta High Court has recently dismissed a plea filed by petitioners West Bengal Small Industries Development Corporation Limited (“WBSIDC”) for unconditional stay of an arbitral award passed against it in 2019, on the grounds of fraud and corruption, under Section 36(3) of the Arbitration & Conciliation Act, 1996 (“Act”).

In holding that the facts of the case, along with the arguments made by the petitioners would not satisfy the twin threshold of fraud or corruption under Section 36(3), a single-bench of Justice Moushumi Bhattacharya held:

The complaint of the petitioner…by no means touches (or even brushes) the threshold of the award being liable to be unconditionally stayed on the ground of fraud or corruption (or more likely being dragged down to the depths) as envisaged under the second proviso to section 36(3) of the Act. Granting stay of an award without imposing conditions on the award-debtor is a departure from the scheme of the Act and must be established within the strict vocabulary used in the second proviso. Any act which falls short of a certain kind of conduct on the part of the arbitrator or of the proceedings will not amount to fraud or corruption. The failing must be brought within the sharpness and intensity of the parameters as decided in the case-law together with the causal nexus with the award. This Court is not satisfied, prima facie, as to the existence of facts which warrant unconditional stay of the operation of the Award.”

5. Post Office Guardian Of Nation's Savings: Calcutta HC Asks Postmaster-General To Settle Claim Of Martyr’s Wife Duped Of Deposit By ‘Authorised’ Agent

Case: Sulekha Chatterjee & Anr. Union Of India & Ors

Citation: 2023 LiveLaw (Cal) 205

The Calcutta High Court has directed the Chief Postmaster General to settle a claim of Rs 6, 99,500 along with interest, in favour of a martyr's wife who had invested the amount in her local Burnpur Post Office’s MIS and Fixed deposit scheme, which was subsequently misappropriated by an authorised agent.

A single-judge bench of Justice Shekhar B. Saraf held:

Based on the unfortunate events that led to this writ petition, this Court cannot help but conclude that the submissions made by the respondents are nothing but an attempt to shrug off their legal and ethical responsibility to compensate the petitioners for the loss suffered by them on account of the fraud perpetrated by Sri Routh, the authorised SAS agent, acting in nexus with the concerned officials of the post office. This Court, in the strongest possible terms, condemns the actions of Sri Routh, and other officials from the post office who were involved in the entire scheme of fraud in the instant case. This Court, also expresses its regret at the unnecessary and undue suffering caused to the petitioners for no fault of their own. Accordingly, this Court holds the respondents liable for the actions of Sri Routh, and the concerned officials of the Burnpur Post Office.

6. Authorities Deciding Valuable Constitutional Rights So Cryptic In Their Consideration': Calcutta HC Sets Aside BDO's Order Denying OBC Certificate

Case: Susanta Ghosh v The State of West Bengal and others

Citation: 2023 LiveLaw (Cal) 206

The Calcutta High Court has, ex parte set aside an order of the Block Development Officer- Domjur (“BDO”), affirmed by the Sub-divisional Officer (“SDO”), which rejected the claim of the petitioner for an Other Backward Classes (“OBC”) certificate, without allowing him an opportunity for hearing or to produce relevant documents in support of his application.

In dismissing the BDO's enquiry report as “cryptic”, a single-bench of Justice Sabyasachi Bhattacharya emphasised on the sanctity of the petitioners Constitutional Rights, and directed the BDO to consider the petitioner's claim afresh on merits and pass a reasoned order within six weeks. It held:

“It is surprising that when the rights asserted by a person to fall under a Constitutional category is being considered, such a cryptic “enquiry report” is placed on record, which forms the very basis of rejection of such claim. It is unhappy that the said authorities, who decide valuable Constitutional rights of persons, are so cryptic in their consideration of such claims. Not a single document produced by the petitioner and annexed in the present writ petition was considered by the authorities, nor was any fruitful hearing given to the petitioner. No opportunity is found to have been given to the petitioner to produce his documents in support of his claim.”

7. Food Safety & Standard Act Doesn't "Impliedly Repeal" S.273 IPC, Police Officer Not Debarred From Investigating Adulteration: Calcutta High Court

Case: Sushil Kr. Gupta v The State of West Bengal & connected applications

Citation: 2023 LiveLaw (Cal) 207

The Calcutta High Court has refused to quash three separate criminal proceedings initiated under Sections 272/273 (Adulteration of food or drink intended for sale), 420 (Cheating) and 120B (Criminal Conspiracy) of IPC, against manufactures of allegedly spurious food items.

In refuting the petitioner’s argument that the provisions under the Food Safety and Standard Act 2006 (“FSSAI Act”) impliedly debar the police from being able to conduct their own investigation into instances of food adulteration under the IPC, a single bench of Justice Subhendu Samanta held:

“The police is not specifically debarred to conduct investigation over the offence mentioned in Section 272/273 of IPC. It is true the police not being Food Safety Officer under FSS Act 2006 are not empowered to investigate into the offences mentioned specially in FSS Act. But nothing can debar police to investigate an offence punishable under IPC. The argument of implied repeal of Section 272/273 IPC appears to me not satisfactory or justified. Considering the same I am of a clear view that though a separate, specific, distinct procedure has been laid down in FSS Act 2006 to initiate/launch a proceeding against the offender of Food Laws that does not ipso facto debar the police to initiate/register a case u/s 272 or 273 of IPC. Thus in my view the investigation conducted by the police according to the provisions of Cr.P.C for the offence punishable u/s 272/273 IPC is maintainable.”

8. Calcutta High Court Upholds Interim Hike In Minimum Wage For Tea-Plantation Workers, Directs State To Finalise Minimum Wage In 6 Months

Case: Goodricke Group Limited & Ors. v The State of West Bengal & Ors.

Citation: 2023 LiveLaw (Cal) 208

The Calcutta High Court has dismissed a plea by owners/lessors of several tea plantations, for setting aside an advisory dated 27^th April 2023, issued by the State Labour Commissioner hiking interim minimum wage for tea plantation workers to Rs 250/- per day w.e.f. 1^st June 2023.

A single-bench of Justice Raja Basu Chowdhury also directed the State to finalise the minimum wage settlement for such workers within a period of six months, and said:

I find that the Labour Commissioner had from time to time enhanced the wages pending finalisation of the minimum wage settlement. Such arrangement, obviously, had to be worked out since, the workers could not be called upon to wait indefinitely for the settlement of Wages under the said Act. I find that it is the petitioners had, in fact, all along accepted the enhancement of wages of the daily rated workers working in the tea garden. Having regard to the conduct of the petitioners, and the peculiar facts of this case, considering the human problem involved, it is only reasonable to conclude that the approach that was adopted by the parties, was to consciously overcome the delay in finalisation of the minimum wage structure.

9. Without Pre-Deposit U/S 19 MSMED Act, Application U/S 34 Arbitration Act Remains 'Stillborn’ For Purpose Of Stay: Calcutta High Court

Case: The Board of Major Port Authority for the Shyama Prasad Mookerjee Port, Kolkata. v Marine Craft Engineers Private Limited.

Citation: 2023 LiveLaw (Cal) 209

The Calcutta High Court recently dismissed an application filed by the Board of Major Port Authority for the Shyama Prasad Mookerjee Port, Kolkata, for staying the operation of an arbitral award passed by the West Bengal State Micro Small Enterprises Facilitation Council (“MSME Council”).

In refuting the petitioners contention that filing an application u/s 34 of the Arbitration & Conciliation Act, 1996 (“1996 Act”) would be sufficient for the Court to deliberate on the question of stay, a single bench of Justice Moushumi Bhattacharya held, that in the absence of a pre-deposit of 75% of the award, in compliance with Section 19 of the MSMED Act, the application u/s 34 of the 1996 Act would remain “stillborn” for the purpose of stay of the award. It said:

The application under section 34 must be a valid application in terms of section 19 of the MSMED Act for the Court to consider stay of the arbitral award under section 36(2). Since the petitioner has admittedly not made the pre-deposit under section 19 of the MSMED Act, the section 34 application filed by the petitioner remains eclipsed in the eye of law as the foundation for a prayer for stay of the arbitral award under section 36(2) of the 1996 Act. Therefore, the present application for stay of the impugned award filed under section 36(2) of the 1996 Act cannot be entertained as the said application is foisted on a stillborn section 34 application. The petitioner must first comply with section 19 of the MSMED Act to breathe life into the application. AP 252 of 2023 is accordingly dismissed as not maintainable for the above reasons.

10. Woman Taking Regularly Worn Ornaments When Leaving Matrimonial Home After 29 Yrs Can’t Be Basis For Criminal Proceedings: Calcutta High Court

Case: Mithu Dash @ Bhuiya v State of West Bengal & Anr.

Citation: 2023 LiveLaw (Cal) 210

The Calcutta High Court recently quashed the criminal proceedings initiated against a woman by her husband, a practising advocate, for the alleged theft of certain gold ornaments and valuables from her matrimonial home.

A single-bench of Justice Shampa (Dutt) Paul opined that the items she was accused of stealing were “worn on a regular basis by traditional Bengali married women.” It said,

“From the materials on record, it appears that the petitioner allegedly left her matrimonial home after 29 years of marriage with:- i. One piece gold Bala (bangle) (marriage ornament), worn as a sign of a married woman. ii. One Loha covered with gold (marriage ornament), also worn as a sign of a married woman. iii. Two piece (one pair) (red) pola, covered with gold (marriage ornament), also worn as a sign of a married woman. iv. One pair Sankhabadhano churi covered with gold (marriage ornament). v. Two mobile phones. vi. One Gold chain (gents), she has taken her son with her. vii. One necklace. These ornaments/accessories as described, are worn on regular basis by a traditional Bengali married woman, who chooses to wear them. The phones which might be for her own use and the ornaments as described, cannot be the basis of a criminal case between a married couple, that too, after 29 years of marriage. These allegations, clearly do not make out any case as alleged under the Indian Penal Code against the petitioner and thus, this is a fit case where the inherent powers of this court should be exercised"

11. 'Even Live-Streaming Being Abused': Calcutta High Court Regrets Misuse Of Provision For Recall, Imposes ₹5 Lakh Cost

Case: M/s. Odisha Slurry Pipeline Infrastructure Ltd. & Anr. v Rakesh Sharma & Ors.

Citation: 2023 LiveLaw (Cal) 211

The Calcutta High Court recently slammed the practise of the Bar invoking procedural formalities in order to take a “circuitous route" to reopen an issue which is already decided and having an order reviewed under the garb of recall.

"A desperate attempt is made to have the order reviewed in the garb of recall...Even a live streaming, which has started with the. avowed object is being misused and/or abused despite the disclaimer having been shown therein," a division-bench of Justice Harish Tandon and Justice Prasenjit Biswas regretted.

The Bench was in seisin of a recall application filed against an order passed on the 13th of March 2023, wherein the Court had refused to initiate contempt proceedings against the respondents at the behest of the applicants, M/s Odhisha Slurry Pipeline Infra Ltd. It was argued by the applicants that the respondents had played “serious fraud” on the Court, which led to the Court making specific findings regarding the ownership of the pipeline.

12. Pension: Calcutta High Court Says Employee Can't Be Penalised For Shortfall In Service Due To Delay By Authority In Making Appointment

Case: Goalbadan Mandal v State of West Bengal & ors.

Citation: 2023 LiveLaw (Cal) 212

The Calcutta High Court recently allowed a writ petition filed by an Assistant Teacher of a primary school, who challenged the order of the Principal Secretary to the Government of West Bengal School Education Department, denying him pensionary benefits. The petitioner had also sought condonation of “deficiency in the qualifying service period” for pension.

In allowing the petitioner’s prayer, single-bench of Justice Hiranmay Bhattacharya held that the ‘deficiency in service’ that had accrued to the detriment of the petitioner had been due to the delay caused by the State authorities in making his appointment. It ordered,

“The petitioner cannot be held responsible for the time taken by the authorities starting from taking decision to forward the name of the petitioner till the date of such appointment. The right of the petitioner to be appointed to the post of Primary School Teacher, however, got crystalised when a decision was taken to forward the name of the petitioner to the Director of School Education for approval. Such delay is solely attributable to the conduct of the respondent authorities and it ultimately led to the shortfall in the qualifying service period for pensionary benefit. The petitioner cannot be penalised for the delay caused by the respondent authorities in appointing the petitioner to the post in question. It is well settled that the petitioner should not be penalized for the lack of promptness in taking action by the concerned authorities.”

13. Raids By Eastern Coalfields Officials Not Illegal: Calcutta High Court Quashes FIRs Against Officials On Counts Of Theft, Outraging Modesty Of Woman

Case: Raja Paul & Ors. v State of West Bengal & Anr.

Citation: 2023 LiveLaw (Cal) 213

The Calcutta High Court recently quashed the criminal proceedings initiated against officials of the Eastern Coalfields, who had, in accordance with directions of the Court, undertaken a raid to crack down on the “terror and running of parallel administration of illegal [coal] mining within the Eastern Coalfield area in Burdwan.”

Eastern Coalfields Limited is a subsidiary of Coal India Limited and is a government company.

A single-bench of Justice Bibhas Ranjan De held:

Raid by the officials of Eastern Coalfield Ltd. by virtue of repeated directions of this Hon’ble Court cannot be said to be an illegal in any way. Therefore, the allegation made in the F.I.R in my opinion, is absurd and cannot be believable that security officers of Eastern Coalfield committed the offence of theft and outrage of modesty. After careful perusal of the all documents produced before this court, I have no hesitation to exercise jurisdiction under section 482 CrPC…in coming to the conclusion that proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice.

OTHER DEVELOPMENTS

1. 'This Is Going Beyond Limits': Calcutta High Court Restrains TMC's Planned “Gherao” Of BJP Leaders’ Residence

Case: Suvendu Adhikari and Anr. Vs State of West Bengal And Ors WPA(P)/398/2023

The Calcutta High Court passed an interim order in a plea by BJP Leader of Opposition Suvendu Adhikari, restraining TMC leader Abhishek Banerjee, among other functionaries, from carrying out a pre-planned “gherao” of the residences of all BJP leaders in West Bengal.

In categorising such gatherings as detrimental to public interest, a bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya remarked:

“The bottom line is you are not concerned about public or office goers…If suppose 1000/2000 people gherao, do you mean to say that only that person and no one else will be affected? The State has to interfere…if suppose someone says they want to gherao the High Court premises…will the state not take cognizance? We will direct that such a program cannot happen. This is going beyond limits. Such action by anyone is against public interest.”

2. Calcutta High Court Suspends Andaman & Nicobar Chief Secretary & Fines Lt Gov For Not Implementing Directions For Daily Wagers' Benefits

Case: Andaman Sarvajanik Nirman Vibagh Mazdoor Sangh & Anr. v Admiral D.K. Joshi, The Hon’ble Lieutenant Governor, Andaman & Nicobar Islands & Anr.

The Calcutta High Court’s Circuit Bench at Port Blair, under its contempt jurisdiction, suspended Keshav Chandra, the Chief Secretary of the Andaman & Nicobar Islands Administration, and fined Admiral D.K. Joshi, the Lt. Governor, a sum of Rs 5 lakh to be paid “from his own funds” and directed him to be present at the next hearing to show cause why they should not be “committed to prison.”

A division bench of Justice Rajasekhar Mantha and Justice Bibhas Ranjan De remarked:

“The contemnors have not even bothered to file any affidavit. This conduct is ex facie contumacious and has reduced the contempt jurisdiction of a Division Bench of this Court under Article 215 of the Constitution of India to a mockery. This Court clearly finds flagrant and reprehensible contempt on the part of the contemnors Admiral D.K. Joshi, Lieutenant Governor, Andaman and Nicobar Islands and Shri Keshav Chandra, Chief Secretary, Andaman and Nicobar Administration.”