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2016 DIGILAW 66 (CAL)

Tapas Dey v. State of West Bengal

2016-01-19

SANJIB BANERJEE

body2016
JUDGMENT : The petitioner continues as an employee of the Calcutta Tramways Company (1978) Ltd. Following a disciplinary action being initiated against the petitioner, an order of punishment was passed on January 20, 2003 by demoting him in rank. The petitioner ultimately challenged the punishment in this Court and the order of punishment was set aside by an order of May 2, 2003, but it left the respondents free to consider the matter and award a lesser punishment. At the time that the petition challenging the original order of punishment of January 20, 2003 was heard, the employer did not disclose to the Court that on account of the petitioner’s failure to join his demoted post during the pendency of the first petition, by an order of March 29, 2003, the petitioner had been discharged from service with effect from March 4, 2003. The petitioner claims not to have had any notice or knowledge of such order of discharge and it was only upon the petitioner attempting to rejoin the services in accordance with the order of May 2, 2003 that the petitioner was informed by the employer that he stood discharged prior to the order May 2, 2003 being passed. In the second of the petitions filed by the petitioner in this Court, the order of March 29, 2003 was challenged. The challenge was upheld on August 5, 2008 when this Court observed that it was improper on the part of the employer not to disclose the order of discharge at the time that the first writ petition was taken up for hearing. The order of discharge of March 29, 2003 was set aside on the ground that the proceedings were conducted behind the back of the petitioner and without notice to him. However, the order of August 5, 2008 did not provide for any back wages or salary for the petitioner or how the period between the earlier order of May 2, 2003 and the subsequent order of August 5, 2008 would be treated. Ordinarily, when an employee challenges an order of punishment, particularly a punishment of discharge from service in any form, it is for the appropriate forum receiving the challenge to reinstate the employee, with or without the salary or wages for the interregnum or the period between the date when the punishment became effective and the date of the annulment of the punishment. In many cases the order of reinstatement provides for back wages or a part thereof. But the legal position is that when an order of reinstatement does not provide for back wages, the attendant prayer for back wages or salary that must be read into a prayer for reinstatement, is deemed to have been rejected. In the present case, though it does not appear that the order of August 5, 2008 consciously rejected the petitioner’s implied prayer for back wages or salary, particularly given the scathing criticism of the employer’s conduct in the relevant order, since the order did not direct the payment of back wages or salary to the petitioner, the legal effect of the order is that the petitioner would not be entitled to claim the same. The order of May 2, 2003 on the original petition implied that the petitioner was entitled to rejoin his original post (the one that he held immediately prior to the order of punishment of January 20, 2003), subject to the employer’s right to reconsider the matter and award a lesser punishment to the petitioner. The effect of the second order of August 5, 2008 was that the petitioner was restored to the position that he would otherwise have found himself in upon obtaining the order of May 2, 2003, but without the benefit of the back wages or salary during the interregnum. The dispute pertaining to the petitioner’s claim for back wages and the like persisted and the petitioner instituted a third petition before this Court which was disposed of on June 20, 2014 with a direction on the respondent authorities to consider the petitioner’s representation. The dispute pertaining to the petitioner’s claim for back wages and the like persisted and the petitioner instituted a third petition before this Court which was disposed of on June 20, 2014 with a direction on the respondent authorities to consider the petitioner’s representation. Upon the rejection of the petitioner’s claim for back wages, by the order impugned dated November 21, 2014, the present petition has been filed the petitioner and the following claims are pressed: (a) Back wages from January 20, 2003 till he was allowed to join in a similar post on September 9, 2008; (b) The right to exercise his option regarding his pension since the period therefor expired sometime in 2006 when the petitioner stood discharged but the order of reinstatement of August 5, 2008 had not been passed; (c) Adjustment of the petitioner’s leave during the period between January 20, 2003 and the order of May 2, 2003; (d) Consideration of the petitioner’s right to promotion by notionally treating the petitioner’s service being without any reak; (e) The benefit of any revision of pay be made available to the petitioner by notionally considering there to be no break in the petitioner’s service; (f) The employer’s share of provident fund be contributed to the relevant fund in accordance with law. In view of the orders of May 2, 2003 and August 5, 2008, neither of which provided for back wages at the existing scale to be paid to the petitioner, the petitioner is not entitled to claim any money for the period that he did not actually render any service, irrespective of whether he was prevented by the order of discharge from doing so. The petitioner will also be entitled to his salary from August 6, 2008 till he was allowed to join on September 9, 2008 at the scale of pay that the petitioner enjoyed prior to the order of punishment of January 20, 2003 and the promotion, increment or revision that the petitioner would have been entitled to in the usual course. The petitioner will also be entitled to his salary from August 6, 2008 till he was allowed to join on September 9, 2008 at the scale of pay that the petitioner enjoyed prior to the order of punishment of January 20, 2003 and the promotion, increment or revision that the petitioner would have been entitled to in the usual course. To the extent that the period between January 20, 2003 and May 2, 2003 may be adjusted out of the leave due to the petitioner available as at May 2, 2003, the petitioner will be entitled to cause such period to be adjusted against his leave and be paid for the adjusted period as if the petitioner was in service and was in the rank that the petitioner occupied immediately prior to the order of punishment of January 20, 2003. The petitioner will also be entitled to exercise the option as to pension and such choice must be made by the petitioner by addressing a letter to the managing director of the respondent company within a week from date. As to the entitlement of the petitioner on account of pay, promotion and the like, it is observed that notwithstanding the petitioner not being entitled to back wages or salary for any period between May 2, 2003 and August 5, 2008, such period will be recorded as the petitioner being in service notionally in the rank which the petitioner occupied prior to the order of punishment of January 20, 2003 with notional promotion being given to the petitioner if the petitioner was periodically entitled thereto. The calculation of the subsequent pay and entitlement of the petitioner will be on such basis. It is also observed that for the duration that the petitioner worked, whether during the period of leave in pursuance of this order or otherwise, the employer’s contribution towards the provident fund must be made in accordance with law and without any exception. The order impugned dated November 21, 2014 is modified to the above extent. It is also observed that for the duration that the petitioner worked, whether during the period of leave in pursuance of this order or otherwise, the employer’s contribution towards the provident fund must be made in accordance with law and without any exception. The order impugned dated November 21, 2014 is modified to the above extent. Save that the petitioner will not be entitled to salary or back wages for the period between May 2, 2003 and August 5, 2008, no other penal or prejudicial consequence should visit the petitioner on account of the alleged misconduct for which the petitioner was punished on January 20, 2003 but which punishment has been set aside and no alternative punishment has been awarded to the petitioner. WP 25482(W) of 2015 is disposed of. There will be no order as to costs. Certified website copies of this order, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.