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2012 DIGILAW 690 (PAT)

Binay Kumar v. State Of Bihar

2012-04-27

MIHIR KUMAR JHA

body2012
ORDER 1. Heard counsel for the parties. 2. The petitioner in this writ application has made a prayer for payment of his salary for the period 1.6.2006 to 9.6.2007 as also for travelling allowance (T.A.) for the period 2.8.2005 to 9.6.2007 amounting in aggregate to Rs. 83,125/-. 3. In this case a counter affidavit has been filed wherein it has been stated that the petitioner’s salary for the period 1.6.2006 to 31.6.2007 has already been paid and that the petitioner will not be entitled for any payment of salary from 1.8.2006 to 9.6.2007, inasmuch as his contract of employment in terms of the agreement dated 2.8.2005, as contained in Annexure 7, was never renewed. 4. Counsel for the petitioner has submitted that though there was no written extension of contract but the fact remains that the petitioner was orally instructed to work even after expiry of the period of contract i.e. from 1.8.2006 till 9.6.2007 and as such, the petitioner will be entitled for payment of salary for the aforementioned period. 5. This Court would find it difficult to decide this question of an oral extension especially when the earlier agreement between the petitioner and District T.B. Control Society reduced in writing, as contained in Annexure 7, had contained the following clause:- “CONTRACT Between the D.T.C.S., Chairman, District Magistrate Bhojpur and Mr. Binay Kumar. This contract is entered between District Tuberculosis Control Society (D.T.C.S.) Bhojpur District on one part and Mr. Binay Kumar. Hereinaftrer called the name of the post S.T.S. on the other, where by D.T.C.S. Chairman agrees to assign to execute the tasks by assign the D.T.C.S. Bhojpur District, as per the following terms and conditions:- Job Description:- (a) Perform the tasks annexed with this contract. Duration of Contract:- This contract commences on 1.8.2005. The contract will be for a period of one year and expires on 31.7.2006. The first three months of the contract will be on probation. The contract is further renewable on a yearly basis in case of good performance and on mutual agreement. Work Station:- The work station of the name of the post S.T.S. will be in Bhojpur District of Bihar State. The Contract authority will be the Chairman D.T.C.S. Supervision Chairman DTCS District Magistrate District/ State Programme Officer, D.T.B. Officer. Remuneration:- As sole and full remuneration the name of the post, S.T.S. will be paid at the rate of Rs. Work Station:- The work station of the name of the post S.T.S. will be in Bhojpur District of Bihar State. The Contract authority will be the Chairman D.T.C.S. Supervision Chairman DTCS District Magistrate District/ State Programme Officer, D.T.B. Officer. Remuneration:- As sole and full remuneration the name of the post, S.T.S. will be paid at the rate of Rs. 6000/- only per months (Rupees six thousand only per month) all inclusive. Tours and Travels:- All Tour and Travels must be approved by the Chairman, D.T.C.S., District Magistrate, Bhojpur District. TA/DA is to be given as applicable to corresponding officers in the state at the point of entry. This Contract can terminated from either side with one month notice or in lieu of it by paying one month’s salary by the Employee. Acceptance and Signature: This above mentioned terms and conditions are mutually acceptable.” 6. Admittedly no mutual agreement for extension of service beyond 31.7.2006 was ever executed between the petitioner and the District T.B. Control Society and as such, the petitioner cannot claim such amount in a writ petition on the basis of an oral order. Such oral order or direction can only be proved by oral evidence which can be adduced by the petitioner in a properly constituted civil suit claiming payment of money. As with regard to the amount of travelling allowance of Rs. 83,125/- it has been stated that whatever admissible amount was there has already been paid and no amount of travelling allowance which was actually travelling expenses is now payable to the petitioner. 7. As noted above, when the contract itself had envisaged duration of contract as also terms and conditions for payment of travelling allowance, any dispute as with regard to the amount beyond the terms of the contract based on oral agreement of the parties, if any, can be agitated in a properly constituted civil suit where the petitioner as also the respondents will have the opportunity to lead their respective evidence. 8. This application is, accordingly, disposed of with a liberty to the petitioner to file a properly constituted civil suit before a court of appropriate jurisdiction for going into the question of his entitlement of payment of salary and the remaining amount of travelling allowance.