Sankar Banerjee v. Durgapur Projects, Ltd., And Others

Behind its apparently simple facts, the instant writ petition raises a very important issue, namely, whether the State can deprive a worker of a decent standard of life, which under Art. 43 of the Constitution, the State should endeavour to secure.

2. The petitioner, now an upper division assistant of the Duragapur Projects, Ltd., which is “State” within the meaning of Art. 12 of the Constitution, joined the projects initially as a mate in the year 1960.

3. His mother Smt. Indu Banerjee, since deceased, who was headmistress of the A Zone Basic School, was in occupation of rent free two-roomed quarters at No. FB 9/2 with one kitchen and bath in the Coke Oven Colony under respondent 1, the Durgapur Projects, Ltd.

4. The petitioner, at all material times, had been living with his mother in the said quarters even after he joined the projects in the year 1960.

5. By a letter, dated 30 July 1973 (annexure A), the petitioner's mother requested respondent 4, the Town Administrator, to consider allotment of her quarters to the petitioner on payment of rent for which she undertook not to claim any accommodation for the rest of her service life.

6. Her request having been acceded to in part, respondent 4, by his letter, dated 15 September 1973 (annexure B), allotted one of the two rooms in the quarters in favour of the petitioner.

7. On the demise of the petitioner's mother on 6 February 1983, the room in her occupation in the quarters fell vacant, when the concerned authority, the Secretary, A Zone Junior Basic Training School, by his letters, dated 26 April 1983 and 19 May 1983 (annexure C), directed the petitioner to hand over the said room to the school authority.

8. The petitioner's representations, dated 23 May 1981 and 7 March 1984, for allotment of the room to him instead of allot ting it to an outsider, failed to yield any result and he was directed to vacate the room though as a matter of fact, the room since his mother's death was in the occupation of his younger brother Sekhar Banerjee.

9. Ultimately, on 26 June 1984 the petitioner was served with a purported charge-sheet cum suspension order for his alleged unauthorised occupation of the quarters (annexure H), and by a notice, dated 8 August 1984, a domestic enquiry into the charge was ordered (annexure K).

10. However, at the intervention of the Minister-in-Charge of the Department of Commerce and Industries the petitioner's brother made over possession of the room to the concerned authority on 12 December 1984, following which the petitioner's suspension order was withdrawn and he was allowed to join his duty (annexure N). The charge-sheet was, however, not withdrawn.

11. The concerned authority thereafter allotted the room, formerly in possession of the petitioner's mother to respondent 8, a “shramik” with a large family.

12. Since the said respondent 8 was bent upon taking possession of the room to the utter inconvenience of the petitioner, the petitioner came up before this Court under Art. 226 of the Constitution praying for a writ in the nature of mandamus directing the concerned authority not to proceed with the chargesheet, dated 26 June 1984, and not to take any step or further steps for inducting respondent 8 or any other person or family in the disputed room.

13. There was an interim order directing the respondents not to allot the room to anybody till disposal of the writ petition.

14. The disciplinary proceeding may, however, be allowed to continue subject to the condition that the final order shall not be passed.

15. The respondents 1 to 5 in their affidavit-in-opposition have seriously questioned the petitioner's right to get allotment of the room in question in his favour. According to the respondent, the petitioner not having applied for any quarters prior to 1984 and there being also acute scarcity of residential quarters the room in question could not be allotted to him. The chargesheet, according to the respondents, cannot be withdrawn since the petitioner on his mother's demise continued to possess his mother's room without authority and failed to make over possession of the same to the concerned authority in spite of repeated demands.

16. From the facts stated, it will appear that the petitioner is now in the employment of the Durgapur Projects, Ltd., (D.P.L in short) for about the last 27 years, having joined in the year 1960. Presently, he is an upper division assistant and it is not disputed that in view of his official status he is normally entitled to a three-roomed residential quarters subject, of course, to availability.

17. Significantly, at all material times he had been living with his mother Smt. Indu Banerjee in the disputed two-roomed quarters in the Coke Oven Colony, which was allotted to her by the school authority of the D.P.L as far back in the year 1955.

18. It is quite likely that since the petitioner had been living with his mother, he did not feel the necessity to apply for a quarters in his own name after he joined the D.P.L in 1960. Had he so applied he would possibly have been in, possession of a three-roomed quarters in his own right by this time.

19. It also appears to be likely that the petitioner by continuing to live in his mother's quarters saved the D.P.L of the embarrassment to find out a suitable quarters for him.

20. It, however, appears that when on 7 June 1967, the petitioner was appointed to the post of a roster clerk, he was offered a “single seated accommodation” at Durgapur.

21. This will appear from the copy of the relevant order produced before me on behalf of the petitioner and it is also not disputed by the respondents.

22. The petitioner obviously allowed this opportunity to slip since he had been living with his mother.

23. Then, in the year 1973, the mother possibly apprehending the growing shortage of residential quarters and also the difficulty the petitioner might have to face in procuring a quarters on her superannuation, applied to the Town Administrator of the D.P.L on 30 July 1973 (annexure A), to consider allotment of her quarters to the petitioner on the undertaking not to claim any accommodation for the rest of her service life.

24. This was undoubtedly a good gesture since at the material times she had more than ten years of service to her credit (incidentally, she died in harness on 6 February 1983).

25. The petitioner at that time had already completed about 23 years of service under the D.P.L and it is not the case of the respondents that he was not eligible till then for a two-roomed quarters, he having already been offered a single seated accommodation as far back in 1967 when he became a roster clerk.

26. And if that is so, the petitioner could have very well been allotted the quarters since it would not have affected anybody else's interest at that time, the allottee, the mother, still having more than ten years of service to her credit.

27. Obviously, the petitioner must have been a consenting party to his mother's application for the allotment of the entire quarters to him and that being so, the mother's application could very well have been treated as an application by the petitioner for allotment of a suitable quarters to him.

28. However, in their wisdom the D.P.L authorities allotted one single room of the quarters to the petitioner instead of the whole of it subject to its being vacated by the Secretary of the A Zone Basic School, though in the same way the whole of the quarters could be allotted to the petitioner without causing any immediate inconvenience to anybody.

29. The petitioner, as it appears, did not object to such allotment of only one room to him since he was in actual possession of the whole of the quarters along with his mother.

30. There can, however, be no denial of the fact that as far back in 1973 there was an application for allotment of the entire quarters to the petitioner and the allotment of only one room to him on the basis of the said application was not on the ground that he was not eligible at that time to a two-roomed quarters.

31. Possibly, the course of action of the D.P.L in this regard was influenced by the fact that the quarters at the material time was under the administrative control of the school authority.

32. However, since the application was made to the D.P.L the petitioner, in my view, should have been given priority from the date of the application, i.e, 30 July 1973, in the matter of allotment of a quarters to him.

33. It is true that the petitioner himself made an application for the allotment of his mother's room to him for the first time on 23 May 1983.annexure D), which was after his mother's demise on 6 February 1983 and then again on 7 March 1984, (annexure E), but these applications, according to me, should not have been treated as fresh applications for allotment but should have been treated in continuation of the previous application, dated 30 July 1973, as made by the petitioner's mother, which for all practical purposes remained pending for the allotment of a full quarters to the petitioner. The subsequent applications, as already seen, were for the allotment of the remaining room in the quarters and not for a whole quarters and as such, were only in continuation of the earlier application though not specifically mentioned as such.

34. I am afraid that the concerned authority while rejecting the petitioner's subsequent applications and directing him to hand over possession of the other room did not view the matter from this angle.

35. According to the respondents, they are presently allotting quarters against application made in 1963 according to the age of the applications. But single rooms are being allotted even to persons who applied in 1984, as it has been allotted to the respondent 8. As such, to the petitioner also, the allotment, if made would have been in respect of one single room to make, of course, a complete whole but, that would have been against his normal entitlement against an application made as far back in 1973. The matter might have been otherwise if it was a question of allotting a complete quarters to the petitioner. But since one of the rooms had already been allotted to the petitioner in 1973 and consequent thereto the entire quarters could not be allotted to a prior applicant, the petitioner under the normal procedure followed by the D.P.L in the matter of allotment of single rooms, could very well claim allotment of the remaining room on the basis of the application made in 1973 without causing any inconvenience to any prior applicant for a full quarters.

36. According to Sri Samanta, the learned advocate representing the D.P.L, single rooms, whenever they fall vacant, are offered to applicants according to age of their applications and are allotted to those who express their willingness in the matter and here it was allotted to respondent 8, who had joined the D.P.L only in 1984, since he had expressed his desire to take the room. The question is why it was not offered to the petitioner.

37. Reference in this connection may be made to Para. 4(XIII) of the affidavit-in-opposition where it has been stated

“since the petitioner did not formally apply for accommodation before 7 March 1984, he is not entitled to a room even as per seniority list maintained.”

Then again in Para. 9 of the affidavit it has been stated that

“the petitioner having not applied for accommodation before the Town Administration even before, he is not entitled to a two-room quarters at the material time.”

38. It is true that the petitioner's application, dated 23 May 1983, (annexure D), was addressed to the Managing Director of the D.P.L and not to the Town Administration, but for that alone his earlier application could not be ignored. Moreover, as already seen, the application made in 1973 by the petitioner's mother to the Administration, was still awaiting final disposal so far the allotment of a two-roomed quarters is concerned, to which the petitioner's entitlement in 1973, was not questioned by the Town Administration while allotting a single room to him, whatever the respondents might have stated now in that regard in their affidavit-in-opposition.

39. So, at any event, there was at least no valid reason for not offering the room to the petitioner before offering it to respondent 8 a new entrant in service in 1984.

40. It may be mentioned here that the D.P.L has no rules for allotment of residential quarters but on the basis of the normal practice for such allotment the petitioner, in view of the facts and circumstances disclosed earlier, was entitled to the allotment of the remaining room in the quarter which fell vacant on his mother's death.

41. The respondents have, however, raised an important issue in this regard, namely, acute dearth of residential accommodation. It is stated that sharing of rooms in a quarters by different families is now almost a normal practice since due to acute shortage of accommodation it has become extremely difficult to allot independent quarters to all eligible employees of the D.P.L It is, however, admitted that where accommodation for residence cannot be provided to an employee, he is given house rent allowance according to rules.

42. Viewing the instant case in the above perspective, the petitioner, who till the death of his mother in February 1983, had been enjoying with his wife and children the benefit of the entire quarters for a large number of years, will now have to share one of the two rooms with a fairly big “sramik” family and will also have to share the single bath room, single toilet and single kitchen.

43. Theoretically, such a situation may not be inconceivable, but for all practical purposes and particularly for one who has become accustomed to a different mode of living in the same quarters, the proposed arrangement will create a situation which can, under no circumstances, be congenial to the mental and physical well being of either of the two families.

44. It is true that the employees have to be provided with residential accommodations but while doing so, it must be ensured that the accommodations so provided are at least sufficient to live like human beings.

45. Two families occupying one room each of a small quarters and sharing the bath room, toilet and kitchen, may give the administration the satisfaction of having provided each of the two families with residential accommodations, but one may very well question whether it actually fulfils the obligation of the State to secure to all workers “a decent standard of life and full enjoyment of leisure” as Art. 43 of the Constitution envisages.

46. The Supreme Court in Olga Tellis v. Bombay Municipal Corporation, [(1985) 3 SCC 545 : A.I.R 1986 S.C 180], has observed that the sweep of the right to life, conferred by Art. 21 is wide and far-reaching. “Life” according to the Supreme Court “means something more than mere animal existence.” Similarly, in Board of Trustees of Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, 1983—(I) L.L.N 314], the Supreme Court has observed in Para. 12, at page 320:

…“The expression ‘life’ does not merely connote animal existence or a continued drudgery through life. The expression ‘life’ has a much wider meaning. Where, there fore, the outcome of a departmental enquiry is likely to adversely affect the reputation or livelihood of a person, some of the finer graces of human civilization which make life worth living would be jeopardized and the same can be put in jeopardy only by law which inheres fair procedures……….”

47. To ask a person to live in sub-human conditions by depriving him even of the benefit of two small rooms which is the minimum requirement for a family to live, compelling him to live in one single room with his wife and children and to share the bath, toilet and kitchen with another family, if it connotes anything, is mere animal existence and nothing more.

48. It is not at all difficult to visualise that such a continued drudgery through life will gradually rob the petitioner and his family members of all their finer graces and put their life to complete jeopardy. It would be nothing but naked and crude struggle for human existence every moment. Depriving a person of his life cannot be worse than an animal existence. And life can be put to such a jeopardy only by law which inheres fair procedure.

49. Thus, if “life” includes livelihood, since no person can live without the means of living, it shall also include such living conditions without which it is not possible for a person to live a human life or to have a human existence so to say, since a man does not live by bread alone and to compel a person to lead an animal existence is worse than taking away his life.

50. The sweep of the right to live, conferred by Art. 21 of the Constitution, which, according to the Supreme Court is “wide and far reaching” should, therefore, include such minimum living conditions without which a human being ceases to be one of the said species.

51. As held by the Supreme Court in Olga Tellis case, [(1985) 3 SCC 545 : A.I.R 1986 S.C 180] (vide supra), that right to life

“does not mean merely that life cannot be extinguished or taken away, as for example, by the imposition and execution of death sentence, except according to procedure established by law. That is but one aspect of the right to life”

An equally important facet of that right according to me, is the right to live like a human being, which conforms to a much lesser degree the State's obligation to “ensure a decent standard of life and full enjoyment of leisure” to all its workmen as provided by Art. 43 of the Constitution. Compelling a person to live in sub-human conditions also amounts to the taking away of his life, not by execution of a death sentence but by a slow and gradual process by robbing him of all his human qualities and graces, a process which is much more cruel than sending a man to the gallows. TO convert human existence into animal existence no doubt amounts to taking away human life, because a man lives not by his mere physical existence or by bread alone but by his human existence.

52. The D.P.L indisputably is “State” within the meaning of Art. 12 of the Constitution and as held by the Supreme Court in Central Inland Water Transport Corporation, Ltd. v. Braja Nath Ganugly, [1986—(II) L.L.N 382], in Para. 115, at page 433:

“…the definition of State in Art. 12 is for the purposes of both Parts III and IV of the Constitution State actions including actions of the instrumentalities and agencies of the State must not only be in conformity with the fundamental rights guaranteed by Part III but must also be in accordance with the Directive Principles of State Policy as prescribed by Part IV.

53. But here the action of the D.P.L in depriving the petitioner not only of the minimum accommodation which is necessary for human existence far less to speak of a decent living, but at the same time compelling him to live an animal life, has not been in conformity with his fundamental right, namely, his right to life as envisaged by Art. 21 and has also not been in accordance with Art. 43 of the Constitution which appears in Part IV.

54. It is true that the D.P.L may not, by affirmative action, be compelled to provide “a decent standard of life” to the petitioner, but the petitioner having been deprived of his right to a decent living which actually threatents his human existence and which possibly is more valuable than life itself, without any just and fair procedure established by law, he is entitled to challenge the said deprivation as offending the right to life conferred by Art. 21. And this is what the Supreme Court has held in Olga Tellis v. Bombay Municipal Corporation, [(1985) 3 SCC 545 : A.I.R 1986 S.C 180] (vide supra), while deciding the question whether right to life also includes right to levelihood.

55. Similarly, the Supreme Court in Randhir Singh v. Union of India and others [1982 — (I) L.L.N 327] has held, while dealing with the Directive Principle of “equal pay for equal work” that:

“It is true that the principle of “equal pay for equal work” is not expressly declared by our Constitution to be fundamental right. Article 39(d) of the Constitution proclaims “equal pay for equal work for both men and women” as a Directive Principle of State Policy … Directive Principles, as has been pointed out in some of the judgments of this Court, have to be read into the fundamental right as a matter of interpretation …” (vide Para. 8, at page 331.)

56. In Surinder Singh v. Engineer-in-Chief, Central Public Works Department, [1986 — (I) L.L.N 522] the Supreme Court while giving effect to the Directive Principle of “equal pay for equal work” observed in Para. 1, at page 522 that:

“…The Central Government, the State Governments and likewise, all public sector undertakings are expected to function like model and enlightened employers and arguments such as … that the principle of equal pay for equal work is an abstract doctrine which cannot be enforced in a Court of law should ill come from the mouths of the State and State undertakings…”

57. In this connection Sri Samanta's contention that the policy of the State should be to provide accommodation to more and more of its employees than to ensure decent living to some, does not appear to be quite in consonance with Art. 43 of the Constitution. Moreover, such a policy cannot be pursued at the cost of human existence. The solution to accommodation problem, if I may say so, cannot be by dividing and sub-dividing the existing accommodations which are just sufficient to accommodate small families and to create pigeonholes where more and more families can be dumped together in utter disregard to their human values.

58. In the instant case the project authority simply closed its eyes to human values and without allotting the other room to the petitioner which would have been the only right thing to do, chargesheeted and suspended him for not vacating the room. Ultimately, however, the Town Administrator accepted the position that the room was actually possessed by the petitioner's brother, Sekhar Banerjee, and by a letter, dated 14 November 1984 (annexure L), asked the said Sekhar Banerjee to vacate and make over possession of the room by 12 December 1984. This direction having been complied with by the petitioner's said brother, the suspension order against the petitioner was withdrawn but not the chargesheet.

59. In my judgment, however, the charge-sheet should also be withdrawn since under whatever circumstances it may be, the Town Administrator ultimately admitted the possession of the petitioner's brother of the room and got back its possession from him. This makes the charge against the petitioner that he was in unauthorised occupation of the room, totally unsustainable. The charge-sheet also loses its force and efficacy in view of the other findings recorded by me.

60. The writ petition, accordingly, succeeds and the respondents are directed by the issuance of a writ in the nature of mandamus not to proceed further with the impugned chargesheet against the petitioner, dated 26 June 1984. The said respondents are further directed to allot the disputed room in quarters No. FB. 9/2 of the Coke Oven Colony of respondent 1 to the petitioner within forty-five days from this date by cancelling its allotment to respondent 8 and till then not to allot it to anybody else.

61. The above respondents are further directed to pay to the petitioner all his arrear emoluments resulting from his suspension or otherwise as his other dues within the aforesaid period of forty-five days, if not already paid and also to regularise his pay within that period if it is yet to be regularised.

62. No order is made for costs.