Bhaskar Bhattacharya, J. - (1.) THIS Mandamus-Appeal is at the instance of a third party in a proceeding under Article 226 of the Constitution of India and is directed against the order dated September 8, 2009 passed by a learned Single Judge of this Court by which His Lordship disposed of a writ-application by directing the West Bengal Fisheries Corporation Ltd., one of the Respondents in the writapplication, (hereinafter called Corporation) to ensure that the writ-petitioner no. 1, the Local Panchayet, was permitted to exercise its rights in the next and the following fishing seasons to recommend the names of the labourers to be engaged by the Corporation for lifting ice from the ice plant in question.
(2.) ALTHOUGH neither the writ-petitioners nor the Corporation has preferred any appeal against such order, the appellants, a labour contractor and his 12 labourers, who were at the relevant point of time engaged in lifting ice from the plant of the Corporation, have come up with this appeal with an application to grant leave to prefer an appeal. The writ petitioners, the Local Panchayet, represented by its Pradhan, filed the writ application, out of which the present appeal arises, thereby challenging the resolution dated November 10, 2009 adopted in the 44th meeting of the Advisory Board of the Corporation and praying for setting aside the consequent letter dated July 2, 2009, issued by the Corporation. The case made out by the writ-petitioners in the writ-application may be summed up thus:- a) The Corporation is a Government Enterprise and Shankarpur Fishing Harbour is one of the units of the Corporation. The Advisory Committee of Shankarpur Fisheries consisted of 15 members, as detailed in the writapplication, including the writ-petitioner No. 2, and all the members of the Advisory Committee were made parties to the writ-application. b) The function of the Advisory Committee was to maintain the Ice Plant in question for lifting of ice and for selling the same and the Advisory Committee adopted a resolution about 10 years prior to moving the writapplication, thereby resolving that for lifting of ice from the Ice Plant, the contractor and the labourers under the said contractor should be recommended by the concerned Panchayat and on that recommendation, the contractor and labourers would be appointed for the purpose of lifting of ice from the Ice Plant for 9 months in a year as those 9 months are the season for catching of fishes. c) The Advisory Committee by virtue of that resolution had delegated the power upon the Panchayat to recommend the names of the contractor and also 12 labourers under the contractor for the purpose of appointment with the understanding that the contractor and labourers would be appointed on casual basis. d) In the year 2007, the selfsame list of the appointed contractor and labourers was sent by the concerned Panchayat to the Special Officer of the Shankarpur Fishing Harbour and the person, who was appointed as contractor, namely, Amarendranath Bhanja and his 12 labourers subsequently took shelter before the Labour Commissioner for the purpose of regularisation of their appointment. e) In the 44th meeting of the Advisory Committee, a resolution was adopted by the members resolving that since the claim of the earlier contractor and labourers was sub-judice before the Assistant Labour Commissioner for the purpose of regularisation, till any decision was taken by the Labour Commissioner, the said Gram Panchayat was requested to recommend those names who were earlier appointed. f) Subsequently, however, the Pradhan of the Panchayat recommended the names of a different contractor, namely, Alok Baran Maity and 12 different labourers to the concerned Special Officer. However, by a letter, the Pradhan of the Panchayet was informed that in view of the 44th resolution of the Advisory Committee, such request could not be acceded to. g) The aforesaid 44th resolution of the Advisory Committee was illegal and was, thus, liable to be set aside and a direction should be given upon the respondent-Corporation to accept the list sent by the writ-petitioner, being Annexure-P-7 to the writ-application, and to appoint the persons mentioned therein as the contractor and labourers.
(3.) NO affidavit-inopposition to the said writ-application was given by any of the respondents but at the time of hearing, on behalf of the Corporation, it was submitted that it was not disputing the prerogative of the Panchayat to select the contractor or recommend the names of the labourers and that the Corporation had no desire to engage labourers on its own or to continue with, or give any preference to any person who had been previously engaged for the purpose of lifting ice from the Ice Plant. It was further argued on behalf of the Corporation that after the present fishing season was over, the labourers, then engaged for lifting ice, would not be continued and the petitioning Panchayat should follow the procedure and recommend the names of labourers for the following season. In view of such stance taken by the Corporation, the learned Single Judge disposed of the writ-application by directing the Corporation to ensure that the Panchayat was permitted to exercise its right in the next and following fishing seasons to recommend the names of labourers to be engaged by Corporation for lifting ice from the relevant Ice Plant. As indicated earlier, neither the writ-petitioners nor any of the respondents preferred any appeal against such order but the contractor earlier engaged by the Panchayat and the 12 labourers, who were retained by virtue of the resolution of the 44th meeting of the Advisory Committee, have come up with the present appeal on the ground that by the order of the learned Single Judge, their appointments have been set aside and by virtue of a fresh resolution, the Panchayat-Authority has recommended the names of different persons, as contractor and labourer respectively.;