2007 Supreme(Cal) 646

High Court Of Calcutta
Pranab Kumar Chattopadhyay And Kalidas Mukherjee, JJ.
ARJUN KUMAR RAY - Appellant
Versus
DAMODAR VALLEY CORPORATION - Respondent
F. M. A.  810  Of  2005
Decided On : 08/22/2007

Abolition of a temporary post leads to automatic termination of service of the employee holding the post.

Headnote:

CONTRACT EMPLOYMENT - ABOLITION OF POST - TEMPORARY POST - TERMINATION OF SERVICE: The post of Motor Boat Driver held by the writ petitioner was a temporary post created by surrendering a temporary post of Forest Guard. The writ petitioner was appointed in the said temporary post initially for a period of one year. The post was sanctioned and available up to February 2003. The DVC authorities abolished the post with effect from 1st March 2003. The writ petitioner's services were terminated with effect from the same date. The writ petitioner challenged the termination of his services. The High Court held that the writ petitioner was in service till 28th February 2003 as the temporary post of Motor Boat Driver ceased to exist due to the abolition of the post with effect from 1st March 2003. The writ petitioner was entitled to receive salary and wages up to 28th February 2003 at the scale enjoyed by him subject to the leave rules.

Fact of the Case:

The writ petitioner was appointed as a Motor Boat Driver in the Damodar Valley Corporation on a provisional and contractual basis for a period of one year. The DVC authorities retained the writ petitioner in service even after the expiry of the aforesaid period by extending the tenure from time to time. The writ petitioner suffered brain injury on 15th February 1998 and was critically ill in April 1999. He was treated by the specialized Doctor of the DVC authorities. The writ petitioner could not perform his duties from 1st August 1999 to 31st December 2000 due to the aforesaid injury and exhausted all available leave during the said period. The DVC authorities asked the writ petitioner to resume his duties within seven days and informed that failing which, a disciplinary action might be taken against him. The writ petitioner submitted a representation requesting the concerned authority of the DVC to grant leave up to February 2001 as advised by the Doctor. The writ petitioner resumed his duty on 1st March 2001. The writ petitioner again had to undergo medical treatment on account of his aforesaid brain injury and remained absent from duty on medical leave from 1st February 2002 till 23rd June 2002. On 24th June 2002, the writ petitioner resumed his duty. The writ petitioner did not receive any salary from the DVC authorities and submitted a representation before the Deputy Director of the DVC claiming release of the salary including all arrears.

Finding of the Court:

The High Court held that the impugned decision of the DVC authorities as communicated by the Deputy Director, Forestry West to the writ petitioner by the written communication dated 13th January 2003 cannot be accepted as proper and valid decision as in the said communication it was wrongly mentioned that the services of the writ petitioner on contractual basis had expired on 28th February 1998 ignoring the fact that by the earlier written communication dated 9th January 2001, said Deputy Director directed the writ petitioner to resume his duty with immediate effect. The learned Single judge, however, committed an error upon holding that the said writ petitioner was an employee of the DVC authorities and the post held by the writ petitioner was sanctioned post till the date of the judgment i.e. up to 7th May 2003 without appreciating the fact that in terms of the Sanction Order dated 17th September 2001, the post in question was sanctioned and available up to February 2003 and the said post was also abolished with effect from 1st March 2003.

Issues: Whether the writ petitioner was an employee of the DVC authorities and the post held by the writ petitioner was sanctioned post till the date of the judgment. Whether the writ petitioner was entitled to receive salary and wages up to 28th February 2003 at the scale enjoyed by the said writ petitioner subject to the leave rules.

Ratio Decidendi: The High Court held that the writ petitioner was in service till 28th February 2003 as the temporary post of Motor Boat Driver ceased to exist due to the abolition of the post with effect from 1st March 2003. The writ petitioner was entitled to receive salary and wages up to 28th February 2003 at the scale enjoyed by him subject to the leave rules.

Final Decision: The High Court modified the judgment and order passed by the learned Single Judge to the extent that the writ petitioner was entitled to receive salary and wages up to 28th February 2003 at the scale enjoyed by the said writ petitioner subject to the leave rules. The DVC authorities were directed to take immediate appropriate steps for payment of the admissible salary and wages to the writ petitioner at the scale of pay enjoyed by the said writ petitioner with effect from June 2002 till 28th February 2003 subject to the leave rules, if not already paid.