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2009 DIGILAW 228 (CAL)

Bidhu Bhusan Chandra v. STATE OF WEST BENGAL

2009-03-16

ASHIM KUMAR BANERJEE, KISHORE KUMAR PRASAD

body2009
JUDGMENT 1. The appellant was the headmaster of Anandapur Higher Secondary School, Keshpur in the, District of Midnapore (West). He had difference of opinion with the then Managing Committee which gave rise to an internal feud in the school and the dispute continues till date. He was prevented from discharging his function as headmaster. He was then reinstated by the Board upon an enquiry being conducted in that regard. He was instrumental in super-session of the Managing Committee as he produced records before the Board showing mismanagement on the part of the Managing Committee. The Managing Committee filed a writ petition, which was disposed of by judgment and order dated December 5, 1980. The appellant was, however, not paid his arrear salary. He filed a writ petitioner being C.O. 4488 (W) of 1983. The learned Single Judge allowed the said writ petitioner by judgment and order dated October 24, 1985 appearing at pages 298-325 of the paper book. State preferred an appeal. The Division Bench set aside the order of the learned Single Judge and remanded the matter back to the learned Single Judge for being heard afresh. The writ petition was again heard and disposed of by the learned Single Judge by judgment and order dated May 14, 1992 whereby the writ petition was allowed. State filed further appeal, which was, however, dismissed by the Division Bench. The writ petition being C.O. 5588 (W) of 1983 was heard by the learned Single Judge on November 20, 1998 when His Lordship passed the order as quoted below:- "Although substantial amount of the dues of the petitioner had been paid to him, there is still some dispute with regard to a sum of Rs. 5,356/- which, the petitioner claims, is still due and payable to him. Since the order out of which the contempt application has arisen, has been substantially complied with, no further purpose will be served in continuing with the contempt proceedings and the same are, accordingly, dropped. However, the District Inspector of School (SE), Midnapore is directed to look into the petitioner's grievance regarding the petitioner's claim in respect of the aforesaid sum, after giving the petitioner, an opportunity of hearing." 2. On perusal of the order quoted (supra) it would appear that all controversy, with regard to his arrear payment, stood resolve as on that date barring a claim for Rs. 5356/-. On perusal of the order quoted (supra) it would appear that all controversy, with regard to his arrear payment, stood resolve as on that date barring a claim for Rs. 5356/-. The learned Single Judge, however, asked the District Inspector of Schools to examine such claim after giving hearing to the appellant. It is pertinent to note, in between he had retired from service in 1985. 3. On perusal of the record it appears that the said amount of Rs. 5356/- has already been paid to the appellant. Hence, considering the order dated November 20, 1998 the appellant did not have any claim as against the state. 4. The appellant, however, was not satisfied. He filed a writ petition in 2001 inter alia making several claims including the claim for damage. He claimed differential amount of gratuity to the extent of Rs. 24,417/-. He also claimed commutation of pension. He claimed arrear salary as well. The learned Single Judge after hearing both sides on affidavits by a well reasoned judgment, appearing at pages 384-399 of the paper book, allowed the writ petition to the extent of his claim for Rs. 24,417/- on account of gratuity and directed the state to pay the same along with interest at the rate of 10% p.a. The learned Single Judge also granted cost for Rs. 5,000/-. His Lordship asked the State to consider his prayer for commutation of pension. It now appears that the state complied with the direction of His Lordship by making payment of Rs. 24,417/- along with interest at the rate of 10% p.a. The state also paid a sum of Rs. 5.000/- twice by mistake. Mr. Chakraborty, learned Advocate appearing for the appellant, however, disputes such contention. 5. Fact remains, prayer for commutation is, however, yet to be acceded to. 6. Being aggrieved by the judgment and order of the learned Single Judge the appellant preferred the instant appeal. 7. Mr. Udayan Chakraborty, learned Advocate appearing for the appellant, contends that the order of the learned Single Judge passed on November 20, 1998 did not specifically take into account the claim for damages. Mr. Chakraborty further contends that the so-called settlement, entered into by and between the parties and relied upon by the State, also did not conclusively deal with the, claim of the appellant. He contended that a sum of Rs. Mr. Chakraborty further contends that the so-called settlement, entered into by and between the parties and relied upon by the State, also did not conclusively deal with the, claim of the appellant. He contended that a sum of Rs. 17,000/- and odd was due on account of arrear salary. The earlier Division Bench made an observation for payment of Rs. 17,000/-, which was admittedly not paid by the State. Mr. Chakraborty further contends that the appellant suffered a lot because of the indifference on the part of the state machinery as also the management of the concerned School run by a particular ruling political party, hence the appellant should be compensated adequately. In support of his contention Mr. Chakraborty has relied upon the following decisions; Common Cause, A Registered Society vs. Union of India & Ors., reported in 1996(6) SCC 530 ; Lucknow Development Authority vs. M.K. Gupta, reported in 1994(1) SCC 243 ; Union of India & Ors. vs. Prabhakaran Vijaya Kumar & Ors., reported in 2008(9) SCC 527 ; Rabindra Nath Ghosal vs. University of Calcutta & Ors., reported in JT 2002(7) SC 490; Chairman, Railway Board & Ors. vs. Chandrima Das (Mrs.) & Ors., reported in 2000(2) SCC 465 ; M.C. Mehta & Anr. vs. Union of India & Ors., reported in 1987(1) SCC 395 and P. Nallammal & Anr. vs. State represented by Inspector of Police, reported in 1999(6) SCC 559 . 8. Opposing this appeal Mr. Saikat Banerjee, learned Advocate appearing for the State, contends that the entire claim of the appellant was taken into account by the District Inspector in a joint meeting with the School Authorities wherein an agreement was entered into, appearing at page 263 of the paper book, wherein the appellant, being satisfied with the calculation of his retiral benefits, gave up his claim on account of interest on delayed payment of the retiral benefit. Mr. Banerjee contends that in terms of the said settlement the entire payment was made as was taken note of by the learned Single Judge in the order dated November 20, 1998 save and except the disputed claim of Rs. 5356/- which was subsequently paid by the State although appellant not being entitled to. Mr. Banerjee further contends that despite such recording the learned Single Judge examined each and every claim and ultimately directed the State to make payment of gratuity amount together with interest. 5356/- which was subsequently paid by the State although appellant not being entitled to. Mr. Banerjee further contends that despite such recording the learned Single Judge examined each and every claim and ultimately directed the State to make payment of gratuity amount together with interest. The State having paid the said amount, the appellant having accepted the same, the appellant could not have any grievance to prefer this appeal. 9. On the issue of damage Mr. Banerjee contends that the principal grievance of the appellant was against the members of the Managing Committee of the concerned School who are not Government Officials. The appellant should have approached the appropriate Civil Court against those persons for proper compensation. He further contends that in absence of concrete grievance against any particular Government Official no damage could be awarded. 10. We have considered the rival contentions of the parties. We are of the view that once the entire claim was taken note of by the learned Single Judge while disposing of the earlier writ petition on November 20, 1998 the appellant could not have any further claim whatsoever. Even then the learned Single Judge considered each and every claim, as would appear from the well-versed judgment of His Lordship, and ultimately direction for payment of gratuity along with interest was given and the State complied with the said direction. 11. Only question remains to be looked into is the issue of commutation of pension. Mr. Banerjee contends that the State has no objection in acceding to such prayer, however, the Director of Pension, being the appropriate authority, raised question with, regard to physical fitness of the appellant. He insisted on a medical report with regard to the present state of health of the appellant, as would appear from page 204 of the paper book. Mr. Chakraborty further contends that as soon as the appellant applied within one year from the date of retirement, such medical examination was not contemplated under the rules. Mr. Chakraborty might be technically correct, We, however, feel that once the said application is now being considered after a lapse of about two decades the appellant should appear before the appropriate Medical Board and submit a medical report for the purpose of consideration of his prayer for commutation and as soon as such medical report is submitted the authority shall consider his prayer in accordance with law with utmost expedition. 12. With regard to damage we have considered a series of Apex Court decisions cited by Mr. Chakraborty. We fully agree with him when he says that the Writ Court has the power to award damage in a given case. In the instant case it is true that the appellant suffered a lot for last 3 to 4 decades, firstly, because of the hindrance caused by a group of members of the Managing Committee and subsequently from the Government Officials after his retirement on account of his retiral benefits. However, in absence of any definite assertion in that regard implicating any particular Government Official, it would be difficult for the Court to award him any compensation coupled with a direction upon the State to recover such cost from the concerned erring officer. However, we are otherwise satisfied about the miseries, which the appellant suffered for last, 3 to 4 decades. While appreciating such misery we wish to award him a token amount of compensation assessed at Rs. 5,000/- to be paid by the State. 13. We are told that the cost already awarded by the learned Single Judge for Rs. 5,000/- has been paid twice. Mr. Chakraborty has disputed such contention. We direct the State to verify their records and if it is found that such statement of Mr. Banerjee is correct, let such sum be adjusted with the token amount of compensation awarded by us, in this judgment otherwise the State must pay the token amount, so awarded by us, to the appellant within a period of fortnight from this date. 14. With these observations, the appeal is disposed of without any further order as to costs. 15. Urgent xerox certified copy of this order, if applied for, be given to the parties, on priority basis. A.K. Banerjee & Kishore Kumar Prasad, JJ.: Appeal disposed of.