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

    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

Please Login To View The Full Judgment!

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 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