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2010 Supreme(Cal) 315
High Court Of Calcutta
Dipankar Datta, J.
Bholanath Roy : Appellant
Versus
State Of West Bengal : Respondent
CAN No.1287 of 2008 in W.P. No. 17371(W) OF 2001 with C.P.A.N. No. 1197 of 2002
Decided On : March 25,2010
Swapan Kumar Dutta, Dipankar Das Gupta, Samiran Giri, D.K.Banerji, Avijit Chakraborty
Headnote:
RETIREMENT BENEFITS - SCHOOL TEACHER - ARREAR SALARY - PROVIDENT FUND DUES - INTEREST ON DELAYED PAYMENT OF GRATUITY AND PENSION - WRIT PETITION - CONTEMPT PETITION - APPLICATION - DISMISSAL OF APPEAL - LEAVE RULES - CONTEMPT OF COURTS ACT, 1971 - LEAVE OF ANY OF THE KINDS MENTIONED THEREIN MUST BE OBTAINED BY A STAFF WHO INTENDS NOT TO WORK FOR A CERTAIN PERIOD FOR WHATEVER REASON HE MIGHT HAVE HAD. NO REQUIREMENT EITHER IN THE LEAVE RULES OR IN ANY OTHER STATUTORY PROVISION HAS BEEN BROUGHT TO THE NOTICE OF THIS COURT BY MR. BANERJEE TO THE EFFECT THAT A STAFF, WHO IS INCLINED TO DISCHARGE/PERFORM HIS DUTY/FUNCTION BUT IS PREVENTED BY HIS EMPLOYER FROM SO DISCHARGING/PERFORMING, HAS TO APPLY FOR AND OBTAIN LEAVE FOR THE PERIOD HE IS SO PREVENTED IN ORDER TO BE ENTITLED TO PECUNIARY BENEFITS FOR THE PERIOD HE IS MADE TO STAY AWAY FROM DUTY.
Fact of the Case:
A retired school teacher filed a petition seeking release of service benefits including retiral dues which, according to him, have been withheld by the concerned respondents to add to the agony suffered by him right from May, 1987. The school, however, in the meantime had preferred an appeal against the judgment and order dated May 10, 1991 and hence awaited the result of the stay application filed in connection therewith. The petitioner claims to have made several attempts to resume duty but the same proved abortive.
Finding of the Court:
The petitioner is entitled to the entire benefits flowing from the judgment and order dated May 10, 1991. Even though the petitioner may not have worked during the concerned period, he is entitled to full salary and allowance there for. The petitioner cannot be deprived of the benefits which he otherwise would have been entitled to had he been allowed to serve as a teacher in the school. The petitioner cannot, therefore, be held at fault for remaining absent during the period under consideration. The balance tilts towards the petitioner. This Court has no reason to disbelieve him and record that he had deliberately not attended school. The Leave Rules, in a case of the present nature, cannot stand in the way of granting relief to the petitioner.
Issues: Whether the petitioner is entitled to arrear salary amounting to Rs.11,76,242/-, provident fund dues and interest on delayed payment of gratuity and pension.
Ratio Decidendi: The school must solely shoulder the blame for the impasse instead of impeding the petitioner's right to relief by raising frivolous objections. Determination has been made by the respondent authorities long back in respect of the petitioner's entitlement in terms of the order of the Hon'ble Division Bench dated February 1, 2001 and it is only because of the defiant attitude of the school in not placing due requisition that the determined amount has not been paid to the petitioner.
Final Decision: The writ petition is allowed by issuing Mandamus on the State and its officers to release the sum of Rs.11, 76,242/- as early as possible but not later than two months from the date of receipt of a copy of this order in favor of the petitioner. Regarding release of provident fund dues in favor of the petitioner, the DIoS shall call upon him as well as the Secretary of the school to place necessary documents in their possession before him for taking an appropriate decision in respect of the mode to be followed for such release. The petitioner shall be entitled to costs of proceedings assessed at Rs. 34,000/- to be paid to him by the members of the Managing Committee of the school not from the school funds but out of their own pocket. Such payment shall be made to him within two months from the date.
1. A retired school teacher by presenting this petition dated November 28, 2001 seeks release of service benefits including retiral dues which, according to him, have been withheld by the concerned respondents to add to the agony suffered by him right from May, 1987. It is, however, not in dispute that during the pendency of the present proceedings, dues towards gratuity and arrear pension have been released. He is also in receipt of monthly pension. What survives for decision is whether he is entitled to arrear salary amounting to Rs.11,76,242/-, provident fund dues and interest on delayed payment of gratuity and pension.
2. THE genesis of the dispute giving rise to this petition may now briefly be noticed from the petition.
The petitioner joined as Assistant Teacher of Nandanpur Rupchand Academy (hereafter the school) on July 20, 1964. He could not attend to his duties since July 7, 1987 allegedly because of intimidation of a member of the Managing Committee of the school Sri Kalobaran Manna. Several notices were issued asking him to show cause for unauthorized absence. He replied to such notices. Ultimately another notice dated August 8, 1988 was issued against the petitioner, which was challenged by him by instituting writ proceedings before this Court. He prayed for quashing of such notice together with direction for release of unpaid salary and allowance since May, 1987. The writ petition was allowed by judgment and order dated May 10, 1991. The impugned show cause notice was declared ultra vires being violative of Regulation 28(8) of the Management Rules, 1969. The Superintendent of Police, Hooghly, the Officer-incharge, Khanakul Police Station and the District Inspector of Schools (S.E.), Hooghly (hereafter the DIoS) were directed to take immediate steps for resumption of duties by the petitioner as an Assistant Teacher of the school.
3. THEY were further directed to ensure that the members of the Managing Committee do not interfere in functioning of the petitioner as Assistant Teacher. The Superintendent and the DIoS were also directed to ensure that the petitioners right to work in the school is not interfered with or adversely affected by any acts of the school authorities or their associates. The Officer-in-Charge was directed to post a police picket to prevent the Managing Committee or outsiders so that the petitioner does not face any difficulty to resume his duty or discharge his function. The DIoS was also directed to pay all the arrear salaries and allowances since May 1987 in favour of the petitioner within a month from date of communication thereof. A further direction for payment of current salary and allowance on proper revision of pay and re-fixation without default also followed.
4. THE DIoS issued Memo dated October 10, 1991 requesting the Secretary of the school to comply with the Courts order and pay the petitioner his admissible dues. The school, however, in the meantime had preferred an appeal against the judgment and order dated May 10, 1991 and hence awaited the result of the stay application filed in connection therewith. The stay application came up for consideration before the Honble Division Bench presided over by the Honble the Chief Justice on April 8,1992 when, inter alia, the following order was passed: It may be pointed out that the writ petitioner made a grievance that he is continuing as an Assistant Teacher of the school in question but he is not being allowed to join the school and perform his duties.
According to the appellants, no resistence had been offered on their behalf and the writ petitioner for the reasons best known to him, has been absenting from the school.
5. IN this background, there is no question of staying the direction given by the learned trial Judge to the police authorities to extend help the writ petitioner respondent so that he can join the school and perform his duties.
6. WE also direct the writ petitioner-respondent to perform his duties assigned to h
