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2017 DIGILAW 436 (CAL)

Sankari Rajak v. State of West Bengal

2017-05-02

NISHITA MAHTRA, TAPABRATA CHAKRABORTY

body2017
JUDGMENT : 1. Both the writ petitions being W.P.S.T 520 of 2010 and W.P.S.T 155 of 2016 are arising out of O.A 732 of 2002 and O.A 731 of 2002 respectively have been preferred challenging a common order dated 12th February, 2010 passed by the learned Tribunal in both the original applications and as such both the writ petitions are taken up for hearing together. By an order dated 7th May, 2002 the Chief Medical Officer of Health, Birbhum terminated the services of the petitioners and others who were appointed in Group-D posts in compliance of an order passed by the Hon'ble High Court in C.O No.3318 (W) of 1999. The said order was challenged by the petitioners herein and others by preferring two original applications being O.A 731 of 2002 and O.A 732 of 2002. The said original applications were dismissed by an order dated 12th February, 2010. Challenging the said order passed by the learned Tribunal, two of the original applicants, namely, Sankari Rajak and Smt. Renu Bala Dey @ Renu Dey filed writ petitions being WPST 520 of 2010 and WPST 40 of 2011 respectively. Unfortunately, the writ petition filed by Sankari Rajak remained pending whereas the writ petition filed by Smt. Renu Bala Dey @ Renu Dey was heard and allowed by a judgment dated 22nd September, 2014 setting aside the order of the learned Tribunal dated 12th February, 2010 and the order of the Block Medical Officer of Health dated 7th May, 2002 so far as the petitioner in the said writ petition was concerned and the respondents were directed to reinstate the said petitioner and to pay her full back wages and to give her all other service benefits to which she would have been entitled in the absence of the termination order dated 7th May, 2002. Aggrieved by the said judgment, the State respondents preferred a Special Leave Petition and the same was dismissed by an order dated 14th December, 2015. Subsequent thereto, the writ petitioner in WPST 40 of 2011 was given all the benefits in terms of the judgment dated 22nd September, 2014. However, the writ petition being WPST 155 of 2016 was preferred by the petitioners after the dismissal of the Special Leave Petition on 14th December, 2015. 2. Mr. Subsequent thereto, the writ petitioner in WPST 40 of 2011 was given all the benefits in terms of the judgment dated 22nd September, 2014. However, the writ petition being WPST 155 of 2016 was preferred by the petitioners after the dismissal of the Special Leave Petition on 14th December, 2015. 2. Mr. Mukherjee, learned advocate appearing for the petitioners in both the writ petitions submits that for non disposal of the writ petition being WPST 520 of 2010, which was filed even before the writ petition WPST 40 of 2011, the writ petitioner therein (Sankari Rajak) cannot be made to suffer and cannot be denied the benefits as disbursed in favour of Renu Dey. 3. He further submits that the order dated 12th February, 2010 passed by the learned Tribunal was also challenged by the petitioners in WPST 155 of 2016 though belatedly, however, such delay was unintentional and as such the benefits extended to Smt. Renu Bala Dey cannot be denied to the petitioners since they are similarly situated. The action of the State in contesting the petitioners' claim, which was rightful and legitimate, cannot be accepted from a welfare State. 4. He further submits that Smt. Uma Dasi retired prior to disposal of WPST 40 of 2011; whereas Smt. Kamala Das and Smt. Hemlata Das retired subsequent to the judgment delivered in WPST 40 of 2011. The petitioner, Sankari Rajak, in WPST 520 of 2010 is, however, due to retire on 31st April, 2019. 5. Ms. Bhattacharyya, learned advocate, appearing for the State respondents submits that the original applications were dismissed by an order dated 12th February, 2010 but the petitioners in WPST 155 of 2016 did not immediately challenge the same before this Court and only after dismissal of the Special Leave Petition preferred by the State respondents against the judgment dated 22nd September, 2014 in WPST 40 of 2011, they woke up from their slumber and approached this Court belatedly and as such they cannot claim the identical benefits as disbursed in favour of Smt. Renu Bala Dey, who challenged the order dated 12th February, 2010 immediately thereafter by filing the writ petition being WPST 40 of 2011. In view of such conduct the petitioners in WPST 155 of 2016 cannot be granted the benefits of full back wages which would unnecessarily burden the State exchequer. 6. In view of such conduct the petitioners in WPST 155 of 2016 cannot be granted the benefits of full back wages which would unnecessarily burden the State exchequer. 6. Heard the learned advocates appearing for the respective parties and considered the materials on record. Upon contested hearing and by a detailed judgment dated 22nd September, 2014 in WPST 40 of 2011, this Court arrived at a categoric finding that the order of termination dated 7th May, 2002 by which fifteen incumbents were terminated, was illegal and unsustainable in law and the said issue attained finality after dismissal of the Special Leave Petition and as such the State authorities are bound by such finding so far as the petitioners herein are concerned since their services were also terminated on identical ground by the self-same order dated 7th May, 2002. It is equally true that persons similarly situated cannot be denied the benefits only on the ground that they had not joined with the petitioners in the earlier round of litigation. There is no justification to penalize for not having litigated. Service jurisprudence evolved by the Supreme Court from time to time postulates that all persons similarly situated should be treated similarly. The doctrine of equality applies to all who are equally placed [See the judgment delivered in the case of in the case of State of Haryana and another etc. v. Mohinder Singh and others etc. reported in 2017 (2) Supreme 313 ]. 7. However, it certainly needs to be considered as to whether in the backdrop of the facts involved in the present lis, the petitioners would also be entitled to full back wages since payment of full back wages upon an order of termination being declared illegal cannot be granted mechanically. 8. The term 'full back wages' means the wages which an employee would have earned had he not been illegally terminated. At the same time it cannot be ignored that the petitioners in WPST 155 of 2016 did not challenge the order dated 12th February, 2010 along with Smt. Renu Bala Dey and it is only after the dismissal of the Special Leave Petition preferred by the State respondents against the judgment delivered in WPST 40 of 2011 on 14th December, 2015, the petitioners chose to approach this Court. In view of such conduct, the petitioners in WPST 155 of 2016 would not be entitled to full back wages on and from the date of termination on 7th May, 2002 but from the date of the judgment delivered in WPST 40 of 2011, i.e., from 22nd September, 2014 till their respective dates of their retirement. The respondents shall treat the petitioner nos.1 and 2 to be in continuous service notionally on and from the date of the termination dated 7th May, 2002 till the date of delivery of the judgment in WPST 40 of 2011, i.e., from 22nd September, 2014 and shall grant all consequential benefits including gratuity and pension, in accordance with law and as disbursed in favour of Smt. Renu Bala Dey. 9. So far as the petitioner no.3 in WPST 155 of 2016 is concerned, as she has attained the age of retirement on 31st October, 2013, i.e. prior to disposal of WPST 40 of 2011, the respondents are directed to treat the petitioner no.3 in continuous service notionally on and from the date of termination till the date of her retirement and to grant the consequential benefits including gratuity and pension, in accordance with law and as disbursed in favour of Smt. Renu Bala Dey. It is made clear that the petitioner no.3 would not be entitled to back wages. 10. The petitioner, Sankari Rajak, in W.P.S.T 520 of 2010 is yet to retire from her services and as such, the respondents are directed to reinstate the petitioner and to pay her full back wages and grant her all service benefits to which she would have been entitled to in the absence of the termination order dated 7th May, 2002. 11. All the petitioners shall be disbursed the benefits, as directed above, within a period of four weeks. It is made clear that in the event such benefits are not disbursed within the time as stipulated above, the petitioners would be entitled to interest at the rate of 8% per annum. 12. With the above observations and directions both the writ petitions are disposed of. 13. There shall, however, be no order as to costs. 14. Urgent photostat certified copy of this order, if applied for, be supplied to the parties, upon compliance of all requisite formalities as expeditiously as possible.