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1991 DIGILAW 413 (CAL)

NISIT KUMAR CHATTOPADHYAY v. STATE OF WEST BENGAL

1991-09-03

MONORANJAN MALLICK

body1991
MONORANJAN MALLICK, J. ( 1 ) THE Court : The writ petitioner has prayed for a writ of mandamus upon the Respondent Nos. 2 and 3 to revise his pay scale under ROPA Rule 1981 and in terms of the recommendation of the Third Pay commission and to pay him the arrear salary and to repatriate him to the parent concern i. e. the Respondent No. 3 in a suitable post considering in long experiences in the managerial affairs. ( 2 ) HIS case is that Respondent No. 3 West Bengal Forest Development Corporation has issued advertisement in Ananda Bazar Patrika inviting application for the post of Chemist, selected the petitioner as Chemist by office order dated 13. 10. 1978. It was indicated in that order that he would be posted at the factory of Alok Udyog Vanaspati and Plywood Ltd. (herein after referred to as AUPL) at Budge Budge. At the material time AUPL was taken over by the Respondent No. 3 as an authorised controller as per order of the Government of West Bengal. The petitioner in terms of the letter dated 9th September, 1978 of Shri P. K. Roy, Managing Director of the Respondent No. 3 joined the post on 3rd October 1978. Since joining the post the petitioner is working at AUPL as a deputationist. Ultimately the AUPL has been transferred and vested in the State of West Bengal by the Alok Udyog Vanaspati and Plywood Ltd. (Acquisition and Transfer of Undertakings) Act, 1986. Then petitioner made several representations to grant him revised scale of pay under ROPA Rules 1981 but inspite of request the Respondent did not want to grant the petitioner the benefit of ROPA Rules 1981. Then the petitioner applied for his repatriation to Respondent No. 3 but as no step was taken he has moved this Court for appropriate relief. The case of Gopal Adhikari, the driver was cited as a precedent for the claim of the petitioner for being repatriated to Respondent No. 3. ( 3 ) RESPONDENT Nos. 2 and 3 contested the writ petition by filing an affidavit-in-opposition. Their case may be briefly stated as follows :- shri Gopal Adhikari, Driver was never an employee of Alok Udyog Vanaspati and Plywood Limited. He belonged to West Bengal Forest development Corporation Ltd. and his service in AUPL were utilized by Respondent No. 3. ( 3 ) RESPONDENT Nos. 2 and 3 contested the writ petition by filing an affidavit-in-opposition. Their case may be briefly stated as follows :- shri Gopal Adhikari, Driver was never an employee of Alok Udyog Vanaspati and Plywood Limited. He belonged to West Bengal Forest development Corporation Ltd. and his service in AUPL were utilized by Respondent No. 3. Therefore, comparing the situation of Shri Gopal Adhikari, Driver with that of Shri N. K. Chatterjee, Chemist will not be proper. ( 4 ) QUESTION of repatriation of Shri N. K. Chatterjee, Chemist to West Bengal Forest Development Corporation Limited is not tenable in terms of his appointment. He is an employee of Alok Udyog Vanaspati and Plywood Limited (Now re-named as West Bengal Plywood and Allied Products Ltd.) ( 5 ) SHRI N. K. Chatterjee, Chemist is not expected to get any consideration of 2nd Pay Commission because the jurisdiction of 2nd Pay Commission never concerned the establishment of AUPL. ( 6 ) AN affidavit-in-reply has been filed by the writ petitioner controverting the case of the Respondent Nos. 2 and 3. ( 7 ) I have carefully considered the case of the writ petitioner. The first point for decision is whether petitioner is an employee of Respondent No. 3 deputed to AUPL so that he can be repatriated to Respondent No. 3. ( 8 ) THE appointment letter of the petitioner shows that the Managing Director of the Respondent No. 3 as Controlling Officer of AUPL has given the petitioner appointment to AUPL as Chemist. The petitioner was not an existing employee of Respondent No. 3 deputed to AUPL. His first appointment was to AUPL and he admittedly joined at the Budge Budge factory of AUPL as Chemist on being appointed to that post for the first time. It is true that in the appointment letter of the petitioner it was indicated that the Rules of the Corporation would govern his service conditions. But only because the Managing Director of the Respondent by appointing the petitioner to AUPL as Chemist has directed that his service conditions will be governed by the rules of the Corporation he cannot be treated as an employee of the Respondent Corporation deputed to AUPL. But only because the Managing Director of the Respondent by appointing the petitioner to AUPL as Chemist has directed that his service conditions will be governed by the rules of the Corporation he cannot be treated as an employee of the Respondent Corporation deputed to AUPL. The Respondents have stated in the affidavit-in-opposition that as the AUPL had no Service Rules of such employees the Rules of the Corporation were adopted to govern the service conditions of the petitioner appointed to AUPL, I am of the view that only because the petitioner was to be governed by the service rules of the Respondent Corporation I cannot hold that he was an employee of Respondent Corporation deputed to AUPL. ( 9 ) AS regards the petitioner's prayer for benefit of pay revision of the ROPA Rules of 1981 the Respondents have contended that at that time the petitioner was an employee of a private concern whose management was taken over by West Bengal Government and the Respondent No. 3 was appointed the Controlling Officer and the ROPA Rules of 1981 was not attracted to the petitioner. But it is submitted that now that company has vested with the State of West Bengal and is a Government Company the petitioner is entitled to the benefit of Third Pay Commission and he win be granted such benefit. The petitioner has admitted that only in 1986 the Company has vested with the State of West Bengal by virtue of the Acquisition Act be Alok Udyog Vanaspati and Plywood Ltd. (Acquisition and Transfer Undertakings) Act, 1986. As the State Government has decided to extend the benefit of Third Pay Commission to the undertakings of the State Government the petitioner is entitled to get the benefit of pay revision of the Third Pay Commission. ( 10 ) IN the result the writ petition is disposed of with this order that petitioner shall be given the benefits of the Third Pay Commission and with three months of the date of communication of this order the petitioner's revised pay and allowances be fixed according to recommendation of the Third Pay Commission and arrear pay and allowance shall be paid to petitioner within two months of fixation of the revised pay. As the petition is not deputationist, his prayer for repatriation to the Respondent No. 3 cannot be entertained. As the petition is not deputationist, his prayer for repatriation to the Respondent No. 3 cannot be entertained. All parties shall act on the signed copy of the operative portion of this judgment upon usual undertaking. Writ Petition disposed of of.