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2003 Supreme(Cal) 400
High Court Of Calcutta
J. K. BISWAS
SAMBHUNATH DAS - Appellant
Versus
AIRPORTS AUTHORITY OF INDIA - Respondent
W. P. 12321 (W) Of 2002
Decided On : 08/07/2003
ASIM MUKHERJI, BIMAL JYOTSNA CHATTERJI, D.DHARAMCHAND JAIN, I.BANERJEE, MOLOY BASU, V.JHUNJHUNWALA
Regulation 31 of the Leave Regulations, 1983, which deals with unauthorized absence, has no application in determining the issue of back wages on reinstatement of an employee.
Headnote:
AIRPORT AUTHORITY OF INDIA - REINSTATEMENT - LEAVE REGULATIONS, 1983 - REG. 31 - BACK WAGES - Court held that Regulation 31 of the Leave Regulations, 1983, which deals with unauthorized absence, has no application in determining the issue of back wages on reinstatement of an employee. The authority erred in applying this regulation to deny the petitioner the benefit of back wages.
Fact of the Case:
The petitioner, an employee of Airports Authority of India (AAI), was terminated from service in 1985 for unauthorized absence. He challenged the termination order and was reinstated in 1999. The question of back wages was left open by the court. The AAI authority denied the petitioner's claim for back wages, relying on Regulation 31 of the Leave Regulations, 1983.
Finding of the Court:
The court held that Regulation 31 of the Leave Regulations, 1983, which deals with unauthorized absence, has no application in determining the issue of back wages on reinstatement of an employee. The authority erred in applying this regulation to deny the petitioner the benefit of back wages.
Issues: 1. Whether Regulation 31 of the Leave Regulations, 1983 applies to the issue of back wages on reinstatement of an employee. 2. Whether the authority was justified in denying the petitioner's claim for back wages.
Ratio Decidendi: The court held that Regulation 31 of the Leave Regulations, 1983, which deals with unauthorized absence, has no application in determining the issue of back wages on reinstatement of an employee. The authority erred in applying this regulation to deny the petitioner the benefit of back wages. The court further held that the authority was required to decide the question of back wages in accordance with the court's order, which directed the authority to consider the fact of the petitioner's gainful employment elsewhere, if any, during the period in question.
Final Decision: The court allowed the petition and quashed the impugned decision of the authority. The authority was directed to take a fresh decision on the question of back wages, after giving an opportunity of hearing to the petitioner.
( 1 ) BY this writ petition dated 27th August 2002 the petitioner challenged the decision contained in paragraph 3 (i) of the order dated 14th May 2002 (annexure P-14 ). It was given by the General Manager (Pres) of the respondent 'airport Authority of India'. The impugned decision is quoted below: (I) Payment of Salary for the stay away period: Sri Das was not on the roll of AAI from 17. 10. 85 to 16. 11. 99. Though he claimed that he did not take alternate employment during this period, the fact remains that he did not work in AAI during this period. And therefore, after careful consideration of the above as well as the AAI Rules, his request for payment of salary for the stay away period is not agreed to. However, as a special case, it has been decided to consider this period as 'dies-non' so that he does not lose effect of previous service in calculation of his CPP, Gratuity etc. at the time of his superannuation.
( 2 ) IN 1985 the petitioner was working as A. E. (E), and was posted at the Headquarters, in Delhi, of the respondent authority. Since after expiry of sanctioned earned leave he continued to remain on medical leave, he was asked to appear before a Medical Board. Such Board by its report dated 11th August 1985 declared him fit to resume duty. The authority by a letter dated 9th September 1985 called upon him to report for duty. As he did not resume duty, by a letter dated 17th October1985, the authority informed him that he was continuing to remain absent unauthorisedly or without proper authority. By this letter he was directed to report for duty on or before 30th October 1985. It was mentioned in this letter that on his failure to report for duty it would be deemed that he voluntarily abandoned his service and his name would be struck off the rolls with effect from 1st November 1985.
( 3 ) THE Petitioner having not resumed duty on or before 30th October 1985 in terms of the respondent's letter dated 17th October 1985, his service stood terminated with effect from 1st November 1985.
( 4 ) BY filing a writ petition Civil Rule No. 5715 (W) of 1986 the decision contained in the letter dated 27th October 1985 was challenged by the petitioner before this Court. By a judgment and order dated 10th November 1995 Aurn Kumar Dutta, J. (as he then was) was pleased to allow this writ petition in part. His Lordship was pleased to direct the respondent authority to reinstate the petitioner without back wages.
( 5 ) BEING aggrieved the petitioner preferred an appeal (F. M. A. T. No. 3687 of 1985 ). By judgment and order dated 9th August 1996 Bhagabati Prasad Banerjee and Dibyendu Bhusan Dutta, JJ. (as they then were) were pleased to set aside the single Bench decision dated 10th November 1995. The writ petition was remitted to the single Bench for hearing afresh.
( 6 ) AFTER fresh hearing, by judgment and order dated 13th August 1999 Sujit Kumar Sinha, J. (as he then was) was pleased to grant the petitioner again part relief. The relevant portions of this judgment and order dated 13th August 1999 are quoted below:the respondent, Airports Authority of India, is directed to reinstate the writ petitioner in service at Delhi or any other Airport where a suitable post is lying vacant within six weeks from the date of communication of this order. In so far as the salary of the writ petitioner is concerned during the period he stayed away from the work, the respondent, Airport Authority of India, is directed to consider the matter sympathetically and, if it is permissible under its Rules, allow him half of the salary and other benefits during the period from 17th October 1985 till 10th November, 1985 (sic ). Such payment shall be made only on condition that the writ petitioner reports for duty and not otherwise. In considering as to the entitlements of the writ petitioner under this order, the respondent, Airport Authority of India, shall also take into account as to whether during this period the writ petition
