B. BHATTACHARYA, J. ( 1 ) THIS mandamus appeal is at the instance of the respondents in a writ application filed by Kamal Kanta Singh, the sole respondent of the instant appeal and is directed against the order dated June 30, 1989 passed by a learned single Judge of this court allowing the writ application filed by the sole respondent thereby issuing a writ of mandamus commanding the present appellants to treat the sole respondent as in service all throughout as driver of the department concerned without break. The appellants herein were also directed to pay all balance of the emoluments of the respondent as a driver within 12 weeks from the date of communication of the said order including the annual increments which he would have been entitled to in the meantime. ( 2 ) THE case put forward by the respondent herein in his writ application may be summarised thus :- (A)the respondent was appointed as a Chainman in the office of the respondent No. 2 on December 30, 1968. (b)one Jodh Bahadur, the father of the respondent, was also an employee of the respondent No. 2. The said Jodh Bahadur was working as a driver for about 30 years and ultimately retired on August 30, 1980. (c)during the last few years of his service, the father of the respondent was suffering from poor eye-sight. Since the respondent was holding a valid driving licence, the appellant No. 2 asked the respondent to work as a driver to assist his father. Accordingly, the respondent was paid the salary of driver from November 1, 1978 to March 31, 1979 and June 1, 1979 to December 26, 1979. (d)after the retirement of his father the petitioner was appointed as a driver against the permanent vacancy with effect from September 1, 1980. (e)since the respondent was not agreeable to obey illegal order of the appellant No. 3 as regards the user of the concerned motor vehicle for the personal use of the appellant No. 3's family members, the appellant No. 3 became annoyed with the respondent. (f)on December 29, 1980 when the respondent went to draw the salary for the month of December, 1980, he found that his name was not included in the requisition in Part-I Salary Bill. (f)on December 29, 1980 when the respondent went to draw the salary for the month of December, 1980, he found that his name was not included in the requisition in Part-I Salary Bill. (g)as the wife of the respondent became seriously ill, the respondent did not attend his office and had to go on leave from January 2, 1981 and was continuing as such till the presentation of the writ application. (h)on February 27, 1981, the respondent found a letter being hung on the door of his residence wherein the appellant No. 2 made allegation against the respondent for holding unlawfully the keys of the office car and by the said letter the respondent was also asked to join in the substantive post of Chainman by referring to an earlier purported order dated November 29, 1980. (i)thus, by the said writ application the respondent prayed for an order restraining the appellants and their servants from proceeding any further to give effect to the said purported order dated November 29, 1980 and February 24, 1981 which came to the notice of the respondent on February 27, 1981. ( 3 ) THE said writ application was contested by the respondent No. 1 viz. the State of West Bengal alone by filing affidavit-in-opposition. It may be mentioned here that in the said writ application the State of West Bengal was made respondent No. 1, the First Land Acquisition Collector was made respondent No. 2 and one Sri Ram Prosad Chakraborty, the Second Land Acquisition Collector, Calcutta was made respondent No. 3, who are all appellants before us. ( 4 ) BY the said affidavit-in-opposition the appellant No. 1 denied the allegations made by the respondent herein in the said writ application and its defences were, inter alia, as follows :- (A)following the retirement of Jodh Bahadur, the father of the respondent from service, the respondent having driving licence and also having experience of driving work on some past occasions was appointed to officiate in the post of motor driver on a purely temporary basis in respect of the concerned Vehicle No. WMA 9594. The said temporary appointment was on a stop-gap arrangement pending appointment of candidate substantively to the post of driver through Employment Exchange as per existing Government order in that behalf. The said temporary appointment was on a stop-gap arrangement pending appointment of candidate substantively to the post of driver through Employment Exchange as per existing Government order in that behalf. (b)earlier, when Jodh Bahadur had proceeded on leave for one month with effect from November 1, 1978 it was considered necessary in the interest of smooth working of the office to appoint a driver to act in place of Jodh Bahadur and the respondent being his son was readily available and was accordingly entrusted with the work of driving the said car with effect from November 1, 1978 in the leave vacancy of Jodh Bahadur as he had a driving licence. (c)as the said Jodh Bahadur continued his leave exceeding three months upto March 31, 1979, the respondent was allowed to continue with the said duty as a driver upto that date. On April 1, 1979 when Jodh Bahadur resumed his duty, the respondent was automatically reverted to work as Chainman from the said date as per terms of the office order. Sri Bahadur again went on leave with effect from June 1, 1979 for continuous seven months and the respondent as before was allowed to work in the post of driver as aforesaid till Sri Bahadur resumed his duty on return from leave. (d)on January 1, 1980 when Sri Bahadur again resumed his duty, the respondent went back to his post of Chainman with effect from January 1, 1980. (e)after the retirement of Sri Bahadur with effect from September 1, 1980, the respondent was entrusted to drive the car purely on temporary basis till regular vacancy was filled up through the Regional Employment Exchange in accordance with the Government of West Bengal, Labour Department Circular No. 5120 (60) dated October 17, 1977 and thereafter an order was passed by the appellant No. 2 on November 29, 1980 placing the respondent to his original post of Chainman with immediate effect and he was directed to resume his duty as Chainman. He was also directed to hand over the keys of the vehicle to the Office Superintendent within three days from the receipt of the letter. But as the petitioner was not found available at his residence for delivery of the said letter and his wife refused to accept the said letter it was served by hand on February 26, 1981. He was also directed to hand over the keys of the vehicle to the Office Superintendent within three days from the receipt of the letter. But as the petitioner was not found available at his residence for delivery of the said letter and his wife refused to accept the said letter it was served by hand on February 26, 1981. (f)as per order of this court dated March 26, 1981 and April 30, 1981 the respondent has been paid his salary from December, 1980 to April, 1981 on Ad hoc basis. ( 5 ) THE learned single Judge allowed the writ application on two fold grounds. Firstly, according to the learned single Judge, the appellant No. 3 against whom allegation was made as regards irregular use of the office car for his personal use did not come forward to deny the said fact by filing personally an affidavit-in-opposition and as such in view of the decision of the apex court in Pratap Singh v. State of Punjab and Ors. reported in AIR 1964 SC 72 , the allegation against appellant No. 3 should stand admitted. Secondly, the learned single Judge opined, if those allegations stand, then the order of reversion became a penal order. Further, according to the learned trial Judge, the letter dated February 24, 1981 issued by the appellant No. 2 made allegations of certain grave offences committed by the said respondent, and as such the "unserved" order of reversion could not be sustained in law. ( 6 ) MR. Bihani, the learned senior advocate appearing on behalf of the appellants has impugned the said order on the following grounds : ( 7 ) ACCORDING to Mr. Bihani since the appellant No. 3 was not the appointing authority and the appellant No. 1 having used affidavit controverting the allegations made in the writ application, the learned trial Judge erred in law in applying the principle laid down in the decision of Pratap Singh (supra) to the fact the present case. Mr. Bihani further contends that the appointment letter annexed to the writ application to the post of driver itself shows that the said appointment was given purely on a temporary basis. Thus, according to Mr. Bihani the said appointment cannot give right to the respondent to continue with the said post. Mr. Bihani further contends that the appointment letter annexed to the writ application to the post of driver itself shows that the said appointment was given purely on a temporary basis. Thus, according to Mr. Bihani the said appointment cannot give right to the respondent to continue with the said post. ( 8 ) AS regards, the second ground assigned by the learned trial Judge that the letter dated February 24, 1981 disclosed serious allegations against the respondent, Mr. Bihani contends that the said letter was written to him after he was directed to join in his original post of Chainman. Since inspite of the said order he was not handing over keys of the concerned vehicle, the appellant No. 2 rightly cautioned the respondent and directed him to comply with the earlier order. According to Mr. Bihani, the language of the said letter cannot infer penal action against the respondent inasmuch as the said letter was written after the order dated November 29, 1980 and the allegations complained of disclosed merely non-compliance of the earlier order. ( 9 ) MR. Dasan, the learned advocate appearing on behalf of the respondent could not justify the stand taken by his client in the writ application that he was holding the post of driver on permanent basis. However, Mr. Dasan draws our attention to a letter written by his client on April 22, 1991 which was received by the appellant No. 2 on the same day. By the said letter, the respondent asked the appellant No. 2 to permit him to join in the post of Chainman and prayed for all arrear dues. In the said letter the respondent promised to withdraw the instant writ application. By referring to the aforesaid letter Mr. Dasan contends that atleast from April, 1991 the appellants are not permiting his client to join even in the post of Chainman and at the same time are not paying any amount whatsoever towards his salary. Mr. Dasan thus prays for a direction upon the appellants to pay all arrear salary atleast from April 22, 1991 when his client expressed his intention to join even as a Chainman. ( 10 ) THERE is no dispute that after the passing of the order impugned in the writ application, the respondent did not join his service. Mr. Dasan thus prays for a direction upon the appellants to pay all arrear salary atleast from April 22, 1991 when his client expressed his intention to join even as a Chainman. ( 10 ) THERE is no dispute that after the passing of the order impugned in the writ application, the respondent did not join his service. It was on June 30, 1989, that the learned single Judge passed an order in his favour thereby directing the appellants to treat the respondent in service as a driver all throughout. It appears from the record that the appellate court on September 5, 1989 while staying the operation of the said order directed the appellant to pay the salary of the respondent as driver for the period during which he actually performed his duty as driver. It is not disputed that the appellants have paid the salary of the respondent from the month of December, 1980 to April, 1981. ( 11 ) SINCE we are not one with the learned single Judge that the respondent should be allowed to work as driver and that his order of reversion was wrong and as during the pendency of the instant appeal the respondent never joined service even as Chainman, we cannot accept the aforesaid contention of Mr. Dasan. The appointment letter itself shows that he was permitted to act purely on temporary basis and as such the order asking him to go back to his original post cannot be said to illegal. The said order cannot by any stretch of imagination be termed as a penal order and as such no question of giving a show-cause notice to the respondent before passing the order impugned arises. We find substance in the contention of Mr. Bihani that from the contents of the letter dated February 24, 1981 issued by the appellant No. 2, the order of reversion can not be assessed as a penal one and thus, in our opinion, the learned single Judge erred in arriving at such a conclusion. The question of payment of arrear salary comes only when the respondent has actually done his work or has offered himself to do the work. It appears from the letter referred to by Mr. Dasan that in the year 1991 he offered to join as Chainman and also promised to withdraw the writ application. The question of payment of arrear salary comes only when the respondent has actually done his work or has offered himself to do the work. It appears from the letter referred to by Mr. Dasan that in the year 1991 he offered to join as Chainman and also promised to withdraw the writ application. But the subsequent letter written by his lawyer dated May 11, 1996 which is printed at page 90 of the Paper Book shows that by the said letter the respondent insisted on compliance of the order dated June 30, 1989 passed by the learned single Judge within 7 days from the date of receipt of the said letter. Therefore, we cannot treat the said letter dated April 22, 1991 as an offer to join in the post of Chainman unconditionally. Over and above, the fact remains that he had not withdrawn the instant writ application as promised by him in the said letter. Therefore, during the pendency of the instant appeal, the respondent not having joined in the said post and done any work, was not entitled to get any salary whatsoever. Mr. Dasan in support of his plea of arrears salary drew our attention to the decision of the apex court in the case of Hindustan Tin Works Limited v. Its Employees reported in 1979 SC pages 75. In the said decision it was held by the apex court that if a workman was ready to work but was kept away therefrom on account of invalid act of the employer, there was no justification for not awarding him full back wages which was very legitimately due to him. In our opinion, the said decision has got no application to the fact of the present case, since in the instant case, we are unable to find fault with the order of reversion. The principle laid down in the aforesaid decision could be invoked if the respondent could satisfy us that the order of reversion was wrong. ( 12 ) AS indicated above, the respondent, not having joined the office and done his duty, is not entitled to get any back salary. ( 13 ) WE cannot lose sight of the fact that the respondent obtained an order of reinstatement with full benefit in the post of driver from the learned single Judge after contested hearing. ( 12 ) AS indicated above, the respondent, not having joined the office and done his duty, is not entitled to get any back salary. ( 13 ) WE cannot lose sight of the fact that the respondent obtained an order of reinstatement with full benefit in the post of driver from the learned single Judge after contested hearing. The said order was however stayed by the appellate court during the pendency of the instant appeal. In the circumstances aforesaid, the appellants should not take any penal action against the respondent for his decision to refrain from joining in the post of Chainman during the pendency of the instant appeal. ( 14 ) THUS, although the respondent is not entitled to get any back salary for the aforesaid period of his long absence during the pendency of the instant litigation, the appellants are directed not to take any penal action against him for the aforesaid period of absence if the respondent joins in the post of Chainman within a fortnight from date. The aforesaid period of absence should be treated as leave without pay. ( 15 ) THE order impugned in the instant appeal is thus set aside. We find no reason to interfere with the order dated November 29, 1980 passed by the respondent No. 2. ( 16 ) THE appeal is thus disposed of in terms of the above order. ( 17 ) IN the facts and circumstances of the case there will be however no order as to costs. V. K. Gupta, J.-I agree. Appeal disposed of