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2007 DIGILAW 119 (CAL)

ARUN KUMAR DAS v. ANUKA ROY

2007-02-23

PRABUDDHA SANKAR BANERJEE, SUBHRO KAMAL MUKHERJEE

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( 1 ) THIS is an application for substitution filed under Order 22 Rule 10 of the Code of Civil Procedure by the present Chairman and the present secretary of the Governing Body of the City College, Amherst Street, Kolkata. The present Chairman is Supriyo Basu; the present Secretary is Bikash chandra Saha. ( 2 ) AFTER hearing Mr. Bagchi, learned Advocate for the appellants, Mr. Saha Roy, learned Advocate for the plaintiff/respondent No. 1 and Mr. Basu, learned Advocate for the defendant/respondent No. 2, we allow this application and direct substitution of the present Chairman, namely, Supriyo basu and the present Secretary, namely, Bikash Chandra Saha, as described in paragraph 5 of this substitution application, as appellants instead and in place of the present appellants. ( 3 ) THE application for substitution is, thus, allowed. ( 4 ) THE office is directed to carry out necessary amendments in the cause title of the memorandum of appeal, ( 5 ) WE make no order as to costs. ( 6 ) BY consent of the parties, we take up the final hearing of the appeal. ( 7 ) THIS is an appeal by the Chairman and the Secretary of the Governing body of City College, Amherst Street, Kolkata, challenging the judgment and decree dated October 5, 1991 passed by the learned Judge, Third Bench, city Civil Court at Calcutta, in Title Suit No. 242 of 1983. ( 8 ) THE learned Trial Judge, inter alia, decreed the suit filed by the plaintiff/ respondent No. 1 and granted her a decree for declaration that the plaintiff has been functioning as full time lecturer in the City College, Amherst street, Kolkata, from July 1, 1980. The Government of West Bengal and the City College authorities have been directed to pay the plaintiff her actual salary and allowances as per the scale provided by the Government of West bengal from time to time. Accordingly, a preliminary decree was passed and the defendants in the said suit were directed to pay the amounts as are admissible to the plaintiff as arrear amounts at the aforesaid rate within three months from the date of decree. In default, however, liberty was granted to the plaintiff to take steps for realising the amounts through court as per law by making the decree final. ( 9 ) MR. In default, however, liberty was granted to the plaintiff to take steps for realising the amounts through court as per law by making the decree final. ( 9 ) MR. Asish Chandra Bagchi, learned Advocate, appearing for the appellants, raised a short point for determination in this appeal. He submits that under the West Bengal Colleges (Payment of Salaries) Act, 1978, it was the responsibility of the State Government to make periodical advances to the colleges for payment of salary to the employees, teaching and non-teaching, of such colleges regularly. He submits, therefore, that the decree needs modification to the extent that the State Government shall make the payment and upon receipt of such payment, the college authority shall disburse the payment to the plaintiff. ( 10 ) MR. Debabrata Saha Roy, learned Advocate, appearing for the plaintiff/ respondent No. 1 accepts such suggestion of Mr. Bagchi. ( 11 ) MR. Himangshu Kumar Basu, learned Advocate, appearing for the state Government, however, submits that the petitioner is not entitled to salary and allowances according to new scale, but according to the old scale. ( 12 ) THE Secretary, the Education Department, Government of West bengal and the Director of Public Instructions, Government of West Bengal, were defendant Nos. 1 and 2. The defendant Nos 4, 5 and 14 only contested the suit. The said respondent Nos. 1 and 2 did not contest the claim of the plaintiff. ( 13 ) WE have noted the decree that was passed by the learned Trial Judge. The respondent Nos. 1 and 2 have not filed any appeal challenging the decree. It is too late now to contend on behalf of the defendant Nos. 1 and 2 that the plaintiff is not entitled her salaries and allowances according to the scale claimed by her in the suit. ( 14 ) THE West Bengal Colleges (Payment of Salaries) Act, 1978 was enacted to make provisions for regular payment of salaries to persons employed in colleges in West Bengal. Under section 3 of the said Act of 1978, with effect from the commencement of the said Act, the State Government should assume the charge of full payment of salaries to the employees, teaching and non-teaching, of colleges governed by the said Act. The State Government should make periodic advances to colleges for payment of salaries regularly to the employees of such colleges. The State Government should make periodic advances to colleges for payment of salaries regularly to the employees of such colleges. The salary of teaching and non-teaching employee of a college governed by the said Act of 1978 should be paid according to the scale approved by the State Government with respect to different posts. ( 15 ) THE learned Judge in the Court below was, therefore, not correct in directing the college authority to pay the salary and allowances of the plaintiff as per the scale approved by the State Government inasmuch as the liability of payment under the said Act of 1978 is with the State Government. ( 16 ) WE, therefore, allow this appeal in part. The decree impugned before us is modified to the extent that the State Government is directed to pay to the plaintiff her actual salaries and allowance as per the scale approved by the State Government from time to time. The State Government is directed to release payment towards such salaries and allowances of the plaintiff to the college authorities and the college authorities shall release such payment to the plaintiff immediately. We have not touched the other directions contained in the decree passed by the learned Trial Judge. The State government is directed to release payment within three months. In default it will be open to the plaintiff to approach the learned Trial Judge for recovery of such payment in accordance with law. ( 17 ) WE make no order as to costs. ( 18 ) URGENT xerox certified copy of this order, if applied for, be given to the parties expeditiously. S. K. Mukherjee and P. S. Banerjee, JJ. : appeal allowed in part. .