w w w . L a w y e r S e r v i c e s . i n



Akhtar Hossain Sarkar v/s State of West Bengal


Company & Directors' Information:- WEST COMPANY (INDIA) PRIVATE LIMITED [Strike Off] CIN = U34203MH1995PTC092297

Company & Directors' Information:- T. SARKAR PVT. LTD. [Active] CIN = U74300WB1990PTC049054

    Writ Petition No. 30429 (W) of 2017

    Decided On, 10 January 2018

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE TAPABRATA CHAKRABORTY

    For the Appellant: Debabrata Acharya, Sital Samanta, Prabir Adhya, Advocates. For the Respondent: Chaitali Bhattacharyya, Benazir Ahmed, Advocates.



Judgment Text

1. The present writ petition has been preferred, inter alia, praying for issuance of necessary direction upon the respondents to settle and disburse the arrear salary of the petitioner for the period from 1st March, 1975 to 3rd March, 2006. Claiming such arrear salary the petitioner submitted a representation to the respondent nos. 2 and 3 on 22nd April, 2017 and in response to the same the petitioner was asked to attend a hearing in the office of the respondent no. 3 on 11th July, 2017. The petitioner duly participated in the same but no final order was communicated to the petitioner and as such he submitted a notice through his learned advocate to the respondent no. 3 on 22nd August, 2017 but the same was not responded to and aggrieved thereby the writ petition was filed on 12th December, 2017. During pendency of the writ petition the petitioner was communicated an order dated 20th December, 2017 passed by the respondent no. 3 which runs as follows :

"In compliance with the Solemn Judgement passed on 27.11.2008 by their Lordships Hon'ble Justice Subhro Kamal Mukherjee and Hon'ble Justice Partha Sakha Dutta with reference to MAT No. 444 of 2007 with CAN 998 of 2007, all retiral benefits were granted notionally fixing his Pay Scale from the date of his initial appointment. So arrear claim for the period he did not work cannot be sanctioned to him, in accordance with law whereas he himself admitted that he did not insist upon actual payment for the period for which he did not work."

2. Mr. Acharya, learned advocate appearing for the petitioner submits that the petitioner was appointed and approved in the post of a clerk in Krishnapur Rahamania High School (in short, the said school) on 2nd January, 1970. Unfortunately thereafter, the petitioner suffered an attack of the dreaded disease of tuberculosis and as he was not in a position to attend the school, he applied for leave from the school authorities for his treatment. Such leave was refused and he was forced to resign from the said post on and from 31st January, 1975. Upon an enquiry it was ascertained that the petitioner was forced to resign. However, the respondent no. 3 regretted his inability to appoint him since in the midst thereof the post had been filled up by one Rukumuddin Ahmed Sarkar (in short, Rukumuddin). However, the said Rukumuddin expired on 24th October, 2003 and thereafter the petitioner approached this Court praying for a direction to reinstate him in the vacancy which had occasioned due to the death of Rukumuddin. By an order dated 29th November, 2005, the said writ petition being WP 18332 (W) of 2003 was disposed of with a direction upon the respondent no. 3 to issue all appropriate orders so that the petitioner is appointed within six weeks. The Court also observed that "Mr. Chatterjee submitted that notional benefit should be directed to be paid to the writ petitioner so that he may get his pension after his retirement. I am afraid such an order cannot be passed because the State has already been saddled with the liability to pay family pension to the heirs of the deceased Rukumuddin. The petitioner shall be entitled to pension if there is a qualifying service". Aggrieved thereby, the petitioner preferred an appeal being FMA 2679 of 2008 which was disposed of by an order dated 27th November, 2008 directing the government authorities to grant retiral benefits to the petitioner notionally fixing his pay scale from the date of his initial appointment and ignoring the purported break in service.

3. Mr. Acharya contends that as the Writ Court by the order dated 29th November, 2005 directed the respondents to reinstate the petitioner and as cessation of the employer-employee relationship was on the basis of forced resignation which was found to be illegal by the competent authority, he is entitled to all back wages pertaining to the period from 1st March, 1975 till 3rd March, 2006. In support of such contention, Mr. Acharya has placed reliance upon a judgment delivered in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and Others, reported in (2013) 10 SCC 324.

4. Per contra, Ms. Bhattacharyya, learned advocate appearing for the State respondents submits that a perusal of the order dated 27th November, 2008 passed in FMA 2679 of 2008 would reveal that the learned advocate appearing on behalf of the writ petitioner made categoric submissions to the effect that "his client is serious about the actual benefits for the period when he did work" and that "his client is insisting upon actual payment for the period for which he did work". In the backdrop of such submissions advanced on behalf of the writ petitioner/appellant therein the Hon'ble Appeal Court directed grant of retiral benefits notionally fixing his pay scale from the date of his initial appointment and ignoring the purported break in service. There was a conscious relinquishment of the claim towards arrear salary for the period from 1st March, 1975 till 3rd March, 2006 and as such there is no infirmity in the order dated 20th December, 2017 which has been passed by the respondent no. 3 in strict consonance with the order of the Hon'ble Appeal Court.

5. A perusal of the order dated 29th November, 2005 passed in the writ petition being WP 18332 (W) of 2003 would reveal that though there was an observation to the effect that "this is a fit case where appropriate direction for reinstatement should be issued", the Court directed the District Inspector of Schools "to issue all appropriate orders so that the writ petitioner is appointed within six weeks from the date of communication of this order". It was also clarified that "benefit of appointment should start within the time stipulated hereinabove". On the basis of such directions the petitioner was appointed and no grievance was ventilated at that juncture towards non-payment of the salary for the period from 1st March, 1975 till 3rd March, 2006. In the backdrop of the submissions advanced on behalf of the appellant to the effect that he is insisting upon actual payment for the period when he did work, the Hon'ble Appeal Court observed as follows :

"We feel that justice will be sub-served if the Government authorities are directed to grant the writ petitioner all retiral benefits notionally, fixing his pay scale from the date of his initial appointment and ignoring the purported break in service.

This notional benefit is extended to the writ petitioner in the special facts and circumstances of the case.

The appeal is, thus, allowed in part. The order of the Hon'ble Single Judge stands modified as aforementioned."

6. Indisputably, the petitioner did work for the period from 1st March, 1975 till 3rd March, 2006 and there was a conscious relinquishment of the claim towards salary pertaining to the said period. No contemporaneous complaint was lodged by the petitioner to the effect that erroneous submissions were advanced on his behalf by the learned advocate engaged by him. On the basis of the order passed in the writ petition on 29th November, 2005 the petitioner accepted the appointment on 4th March, 2006 without raising any claim towards arrear salary for the period from 1st March, 1975 till 3rd March, 2006. Thereafter upon retirement on and from 1st April, 2011, the petitioner accepted the pensionary benefits on the basis of the pension payment order dated 30th January, 2012 issued in terms of the order dated 27th November, 2008 passed by the Hon'ble Appeal Court in FMA 2679 of 2008. No representation was submitted contemporaneously claiming salary pertaining to the period from 1st March, 1975 till 3rd March, 2006. Such representation was submitted almost six years after retirement claiming arrear salary pertaining to the said period. Once the petitioner retired, the master and servant relationship ceased and the relationship existed only for the purpose of payment of terminal benefits to the petitioner on the basis of the situation existing on the date of his retirement. Thus having retired and having accepted the terminal benefits, he now cannot claim the arrear salary pertaining to the said period from 1st March, 1975 till 3rd March, 2006.

7. It is well settled that reinstatement and payment of back wages are two independent issues and an order of reinstatement does mean that the person would automatically become entitled to back wages. The disbursement of the back wages is dependent upon the facts and circumstances of the case. In course of hearing of the

Please Login To View The Full Judgment!

appeal, the petitioner did claim actual payment for the period he did work from 1st March, 1975 till 3rd March, 2006 and after accepting the benefits in terms of the Hon'ble Appeal Court's order dated 27th November, 2008, the petitioner submitted a representation about six years after retirement claiming arrear salary for a period he did work. The judgment delivered in the case of Deepali Gundu Surwase (Supra) is clearly distinguishable on facts and has no manner of application in the instant lis. 8. For the reasons discussed above there is no infirmity in the order dated 20th December, 2017 passed by the respondent no. 3 and the writ petition is, accordingly, dismissed. 9. There shall, however, be no order as to costs. 10. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
O R







Judgements of Similar Parties

21-07-2020 SBI Life Insurance Co. Ltd., West Bengal Versus Kajari Gayen & Another National Consumer Disputes Redressal Commission NCDRC
21-07-2020 Dr. Bikram Panda Versus The State of West Bengal & Others High Court of Judicature at Calcutta
20-07-2020 M/s. SBI Cards & Payments Services Pvt. Ltd., Haryana Versus Consumer Affairs & Fair Business Practices, West Bengal National Consumer Disputes Redressal Commission NCDRC
14-07-2020 Srabani Chatterjee & Another Versus The State of West Bengal & Others High Court of Judicature at Calcutta
13-07-2020 Souvik Sardar & Others The State of West Bengal & Others High Court of Judicature at Calcutta
02-07-2020 BSA Citi Courier Pvt. Ltd. Versus Commissioner of Central Goods & Services Tax Delhi West & Another High Court of Delhi
02-07-2020 Safikul Islam & Others Versus The State of West Bengal & Others High Court of Judicature at Calcutta
30-06-2020 Dr. Arup Kumar Bhowmick Versus State of West Bengal & Others High Court of Judicature at Calcutta
26-06-2020 Brijendra Kumar Singh Versus The State of West Bengal & Others High Court of Judicature at Calcutta
25-06-2020 Mazidul Miah @ Mia & Others Versus State of West Bengal High Court of Judicature at Calcutta
24-06-2020 TUCI, West Bengal State Secretary, Represented by itsSecretary, Sharmistha Choudhury & Another Versus The State of West Bengal & Others High Court of Judicature at Calcutta
19-06-2020 Shyamal Middya Versus The State of West Bengal & Others High Court of Judicature at Calcutta
19-06-2020 The State of West Bengal & Others Versus Soroj Kumar Mondal & Others Supreme Court of India
17-06-2020 Jewel SK @ Juel SK Versus The State of West Bengal High Court of Judicature at Calcutta
15-06-2020 State Bank of India Versus Consumer Affairs & Fair Business Practices, West Bengal & Others National Consumer Disputes Redressal Commission NCDRC
12-06-2020 S.K. Abdul Habib Versus The State of West Bengal High Court of Judicature at Calcutta
12-06-2020 Abed Ali Biswas Versus The State of West Bengal High Court of Judicature at Calcutta
12-06-2020 Gulu Santra @ Ghunu Santra Versus The State of West Bengal High Court of Judicature at Calcutta
12-06-2020 Ajit Barman Versus The State of West Bengal High Court of Judicature at Calcutta
11-06-2020 Pawan Kishore Harlalka Versus State of West Bengal & Others High Court of Judicature at Calcutta
11-06-2020 Kartick Paul Versus The State of West Bengal & Others High Court of Judicature at Calcutta
11-06-2020 Uttam Gayen & Another Versus The State of West Bengal & Others High Court of Judicature at Calcutta
20-05-2020 Sadhana Bala Sarkar Versus Shyamu Sarkar & Another High Court of Tripura
19-05-2020 Dipu Singh @ Hulo Versus The State of West Bengal High Court of Judicature at Calcutta
19-05-2020 Bibhas Kunti @ Bibhas Kuti Versus The State of West Bengal High Court of Judicature at Calcutta
19-05-2020 Jalaluddin @ Jalaluddin Versus State of West Bengal & Another High Court of Judicature at Calcutta
13-05-2020 Md. Jahidul Islam & Others Versus The State of West Bengal & Others High Court of Judicature at Calcutta
13-05-2020 Suprabha Adhikari & Others Versus The State of Tripura, Represented by the Secretary Revenue, West Tripura & Others High Court of Tripura
13-05-2020 Jayanta Sarkar Versus National Jute Board & Others High Court of Judicature at Calcutta
13-05-2020 Sudeb Mahato & Another Versus The State of West Bengal & Others High Court of Judicature at Calcutta
07-05-2020 Sujit Mitra & Others Versus State of West Bengal High Court of Judicature at Calcutta
02-05-2020 Ratan Ch. Banik Versus The State of Tripura, Represented by the Secretary to the Government of Tripura, Department of Finance, West Tripura & Others High Court of Tripura
28-04-2020 Dr. Fuad Halim & Others Versus State of West Bengal & Others High Court of Judicature at Calcutta
24-04-2020 S.K. Jalaluddin & Others Versus The State of West Bengal & Others Supreme Court of India
24-04-2020 Dr. Mandira Sarkar & Others Versus State of Karnataka Department of Health & Family Welfare, Rep. by its Secretary & Others High Court of Karnataka
24-04-2020 Mohd. Asif Naseer Versus West Watch Company Through Its Proprietor Supreme Court of India
22-04-2020 West U.P. Sugar Mills Association & Others Versus The State of Uttar Pradesh & Others Supreme Court of India
17-04-2020 Dr. Faud Halim Versus State of West Bengal & Others High Court of Judicature at Calcutta
16-04-2020 In re : Smarajit Roychowdhury Versus State of West Bengal & Others High Court of Judicature at Calcutta
08-04-2020 In Re: Contagion of COVID-19 Virus in Children Protection Homes Versus State of West Bengal High Court of Judicature at Calcutta
20-03-2020 Suresh Chandra Das Versus The State of Tripura to be represented by the Chief Secretary to the Government of Tripura, Civil Secretariat, New Secretariat Complex, West Tripura & Another High Court of Tripura
20-03-2020 Joydeb Das Versus The State of West Bengal High Court of Judicature at Calcutta
20-03-2020 Narottam Das & Others Versus The State of West Bengal High Court of Judicature at Calcutta
18-03-2020 Managing Committee, Bheramari A.M. High Madrasah & Another Versus State of West Bengal & Others Supreme Court of India
18-03-2020 West Bengal Small Industries Development Corporation Ltd. & Others Versus M/s. Sona Promoters Pvt. Ltd. & Others Supreme Court of India
13-03-2020 Rakesh Mondal & Another Versus The State of West Bengal & Another High Court of Judicature at Calcutta
12-03-2020 Rekhanlal Shrivastava Versus Union of India General Manager West Central Railway JBP High Court of Madhya Pradesh
06-03-2020 Subhadep Adhikari Versus The State of West Bengal & Others High Court of Judicature at Calcutta
06-03-2020 M/s. Greenhaven Realty Private Limited. & Others Versus Kaushik Sarkar & Others West Bengal State Consumer Disputes Redressal Commission Kolkata
06-03-2020 Indian Oil Corporation Limited (Marketing Division) Senior Area Manager, West Bengal Versus Biswanath Adhikary & Others National Consumer Disputes Redressal Commission NCDRC
05-03-2020 M/s. N.K. Enterprise, West Bengal & Another V/S Narayan Prasad Sharma & Others National Consumer Disputes Redressal Commission NCDRC
04-03-2020 Suryaneel Das Versus The State of West Bengal & Others High Court of Judicature at Calcutta
04-03-2020 Marzina Bibi Versus The State of West Bengal High Court of Judicature at Calcutta
04-03-2020 Avijit Biswas Versus The State of West Bengal & Others High Court of Judicature at Calcutta
03-03-2020 State of West Bengal Versus PAM Development Private Limited High Court of Judicature at Calcutta
03-03-2020 United Bank of India, West Bengal Versus Ranjan Basu & Others National Consumer Disputes Redressal Commission NCDRC
02-03-2020 Dilip Shaw @ Sanatan & Another Versus State of West Bengal & Others Supreme Court of India
28-02-2020 Cauvery Construction, West Bengal & Another Versus Subrata Samanta & Others National Consumer Disputes Redressal Commission NCDRC
28-02-2020 Kaisar Versus State of West Bengal High Court of Judicature at Calcutta
28-02-2020 Amit Singh @ Amit & Others Versus The State of West Bengal High Court of Judicature at Calcutta
26-02-2020 Minati Sarkar & Others Versus Sibatosh Chakraborty High Court of Judicature at Calcutta
26-02-2020 Saani Das Versus The State of West Bengal & Others High Court of Judicature at Calcutta
25-02-2020 M/s. Tridev Express Cargo, West Bengal Versus IPSITA Saha, West Bengal National Consumer Disputes Redressal Commission NCDRC
25-02-2020 Supriyo Raychaudhuri Versus GTPL Kolkata Cable & Broadban Pariseva Ltd., West Bengal & Another National Consumer Disputes Redressal Commission NCDRC
24-02-2020 Md. Safique Versus The State of West Bengal High Court of Judicature at Calcutta
24-02-2020 Saurabh Kar & Another Versus Kolkata West International City Pvt. Ltd. & Another West Bengal State Consumer Disputes Redressal Commission Kolkata
24-02-2020 Downtown Temptations Pvt. Ltd. Versus The State of West Bengal Supreme Court of India
24-02-2020 Arup Dey Versus The State of West Bengal & Others High Court of Judicature at Calcutta
21-02-2020 Secretary, Bairgachi High School Versus State of West Bengal & Others High Court of Judicature at Calcutta
20-02-2020 Md. Younus Ali Tarafdar Versus The State of West Bengal Supreme Court of India
20-02-2020 Motamarri Appanna Veerraju @ Mav Raju Versus The State of West Bengal Supreme Court of India
19-02-2020 The Indian Golf Union & Others Versus West Bengal Golf Society & Others High Court of Judicature at Calcutta
19-02-2020 Swapan Banerjee & Another Versus State of West Bengal & Another High Court of Judicature at Calcutta
17-02-2020 Aijul Gharami Versus State of West Bengal High Court of Judicature at Calcutta
14-02-2020 Gurupada Das Versus The State of West Bengal High Court of Judicature at Calcutta
14-02-2020 Amirul Islam Versus State of West Bengal & Others High Court of Judicature at Calcutta
14-02-2020 Nibaran Mudi & Another Versus The State of West Bengal High Court of Judicature at Calcutta
14-02-2020 Nure Shobha Begum & Another Versus The State of West Bengal & Others High Court of Judicature at Calcutta
12-02-2020 Mariyam Begam & Others Versus The State of West Bengal High Court of Judicature at Calcutta
12-02-2020 Lachhu Indower Versus The State of West Bengal High Court of Judicature at Calcutta
11-02-2020 Arup Sarkar Versus C.E.S.C. Limited & Others High Court of Judicature at Calcutta
10-02-2020 Rupa & Co. Ltd & Another Versus State of West Bengal & Others High Court of Judicature at Calcutta
07-02-2020 S.K. Anar @ S.K. Anarul Versus The State of West Bengal High Court of Judicature at Calcutta
07-02-2020 Binoy Krishna Dey & Another Versus The State of West Bengal High Court of Judicature at Calcutta
07-02-2020 Dilip Bera Versus The State of West Bengal High Court of Judicature at Calcutta
06-02-2020 Litan Sarkar Versus The State of West Bengal High Court of Kerala
05-02-2020 Pradipta Kumar Jana Versus State of West Bengal & Others High Court of Judicature at Calcutta
05-02-2020 Mizanur Rahman alias Sk. Mizanur Versus The State of West Bengal High Court of Judicature at Calcutta
05-02-2020 Tarit Kumar Biswas Versus Ashim Bandhu Sarkar West Bengal State Consumer Disputes Redressal Commission Kolkata
04-02-2020 Mira Rani Hazra & Others Versus State of West Bengal & Others High Court of Judicature at Calcutta
04-02-2020 Rina Karmakar Versus Life Insurance Corporation of India, West Bengal & Others National Consumer Disputes Redressal Commission NCDRC
04-02-2020 Md. Irfan & Others Versus The State of West Bengal High Court of Judicature at Calcutta
04-02-2020 Madan Barman Versus State of West Bengal High Court of Judicature at Calcutta
29-01-2020 Sukumar & Another Versus Regional Transport Officer, Transport Department, Salem (West) & Another High Court of Judicature at Madras
29-01-2020 Mondal Construction Company Ltd., Uttarayan, West Bengal & Others Versus Recovery Officer Securities and Exchange Board of India, Kolkata & Others SEBI Securities amp Exchange Board of India Securities Appellate Tribunal
28-01-2020 Mohit Lal Ghosh Versus The State of West Bengal & Others High Court of Judicature at Calcutta
28-01-2020 Murshidabad Sale & Supply Co-Operative Society Ltd. Versus The State of West Bengal & Others High Court of Judicature at Calcutta
28-01-2020 Somnath Majhi & Another Versus State of West Bengal High Court of Judicature at Calcutta
28-01-2020 New India Assurance Co. Ltd., Through its Authorised Signatory, New Delhi Versus M/s. Durga Bricks Industries, West Bengal & Others National Consumer Disputes Redressal Commission NCDRC
27-01-2020 Dukhiram Bhattacharya Versus State of West Bengal & Another High Court of Judicature at Calcutta