Calcutta High Court (Appellete Side)
Sri Sukumar Santra & Another vs Food Corporation Of India & Others on 18 March, 2014
Author: Ashoke Kumar Dasadhikari
Bench: Ashoke Kumar Dasadhikari
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Form No. J. (2)
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Ashoke Kumar Dasadhikari
W.P. 17220 (W) of 2005
SRI SUKUMAR SANTRA & ANOTHER
-Versus-
FOOD CORPORATION OF INDIA & OTHERS
Mr. Abhijit Basu,
Mr. Debashis Nandi,
Mr. Kumeresh Dalal
..............for the petitioner.
Md. Nizamuddin
.....for the F.C.I.
Heard on : 03.10.2013
Judgement on: 18th March, 2014
This writ petition was moved by Sukumar Santra, since
deceased, and his son Sri Chandra Nath Santra with a prayer
for disbursing service benefits under the voluntary retirement
scheme in favour of the writ petitioner no.1, Sukumar Santra,
who was working as 'Departmental Ancillary Worker' at Food
Corporation Depot, Nandy Bazar, Howrah-1 under Food
Corporation of India (hereinafter referred to as "F.C.I.") and to
issue direction upon the respondents to grant compassionate
appointment in favour of writ petitioner no.2, the son of writ
petitioner no.1.
Learned Counsel appearing for the writ petitioners
submits that writ petitioner no.1 who died during pendency of
this litigation, was appointed as a 'handling labour' at the
Dharmatala Food Godown of F.C.I. vide appointment letter
dated 25th January, 1988. While serving as handling labour,
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petitioner no.1 suffered an attack of Leprosy. Petitioner no.1
took temporary leave. At that point of time petitioner no.2 was a
student of class-V. There was no earning member in the family
and the family had to starve. Immediately, after attainment of
majority by writ petitioner no.2, the writ petitioner no.1 being
the employee of the F.C.I. approached the respondents with a
prayer to appoint his son in service. When such application was
made by writ petitioner no.1, he came to learn that a person
impersonating himself as Sukumar Santra/petitioner no.1 was
working as 'handling labour'. On further enquiry, petitioner
no.1 came to learn that the said person was actually named
Arun Malik. Coming to know about the incident petitioner no.1
wrote to the concerned authority detailing the entire episode of
impersonation and raised a question as to how said Arun Malik
had procured identity card in the name of Sukumar Santra and
affixed his photograph on the identity card. Petitioner no.1
lodged a complaint before the respondent no.4 on 31st March,
1998. Petitioner no.2 also made a representation to respondent
nos. 2 and 3 on 21st April, 1998 and 6th July, 1998 respectively
praying for appointment in place of his father/writ petitioner
no.1 but all were in vain. Writ petitioners also issued notice
through their learned advocate calling upon the respondents to
initiate appropriate criminal proceedings against Sri Arun Malik.
Unfortunately on 30th August, 1998 the said Arun Malik
died due to rail accident and was cremated at Salkia Burning
Ghat and his name was recorded as Sukumar Santra as per
disposal order of Howrah Police Morgue No. 002203, PM No.
1103.
Learned Counsel for the writ petitioners further submitted
that surprisingly enough all attempts were successfully
executed to impersonify Arun Malik as Sukumar Santra and
documents were procured to that effect and further, respondent
authorities were approached by the wife of Arun Malik to avail
compassionate appointment. Detailing such act of
impersonation and forgery, writ petitioners personally and
through their learned advocate made representations.
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In response of those representation, the Deputy Manager
(Vigilance), F.C.I., vide memo dated 10th February, 1999 and
15th/19th July, 1999 requested the Superintendent of Police,
Howrah, to investigate into the matter. However, the concerned
Superintendent of Police relegated the matter for enquiry to the
District Enforcement Branch vide memo dated 20th July, 1999
and a detail enquiry was held. A report was filed vide memo
dated 29th June, 2000 observing, inter alia, that Sukumar
Santra and Arun Malik are two different persons and that Arun
Malik was an impersonator and he worked at Dharmatala
Godown impersonating himself as Sukumar Santra and that
Chandra Nath Santra was the son of Sukumar Santra and he is
entitled to get the job in place of his father Sukumar Santra.
Even in spite of such report respondent authorities did
not take steps and petitioner no.1 and his family were in
extreme financial distress. Representations were made to
provide a job to the son of writ petitioner no.1 but to no effect.
In the year 2003 voluntary retirement scheme was
introduced and effected and in consonance thereto, respondent
no.3 vide memo dated 8th December, 2003 asked petitioner no.1
to apply for voluntary retirement within 30th December, 2003.
Petitioner no.1 immediately applied for voluntary retirement and
his application was scrutinised and considered by competent
authority and his option as exercised seeking voluntary
retirement was accepted. Petitioner no.1 was allowed to retire
voluntarily on and from 8th January, 2004 vide memo dated 8th
January, 2004 issued by respondent no.3. In that memo the
concerned officer also requested his superiors to advise what
voluntary retirement benefit could be given to writ petitioner
no.1 under the said scheme. Unfortunately, the respondents
had deliberately sat tight over the matter and they were not
inclined to disburse the benefit to the writ petitioner no.1. In
the meantime, the application for compassionate appointment to
the son of writ petitioner no.1 to save the family from distress,
was considered and respondent no.3 vide memo dated 6th April,
2004 called for certain specific information in terms of Food
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Corporation of India's Staff Regulations from respondent no.2.
But unfortunately no action was taken. The respondents also
did not disburse the benefit under the voluntary retirement
scheme without disclosing any reason. As per voluntary
scheme, writ petitioner no.1 is entitled to avail compensation,
gratuity, etc. but in spite of acceptance of his application for
voluntary retirement with effect from 8th January, 2004, the
respondents did not release any benefit under the voluntary
scheme.
Learned Counsel for the writ petitioners submits that
there was no earning member in the writ petitioners' family and
the family was in deplorable state. Although it was incumbent
to the respondents to help the family but no steps were taken.
According to him, the writ petitioners ought to have been
allowed to have the benefit under the voluntary retirement
scheme. He submitted that writ petitioner no.1 was an
employee of F.C.I. and employer and employee relationship
subsisted till the date of acceptance and conferment of
permission to take voluntary retirement on and from 8th
January, 2004. The respondents are obliged to fulfil their
covenants under the scheme and to disburse the benefits under
the scheme in favour of the petitioner no.1. He also submits
that at the time of moving this writ petition a direction was
issued by this Hon'ble Court directing the District Manager,
Howrah, F.C.I. being respondent no.3, to be personally present
in this Court and to explain before the Court as to whether the
documents being annexures P-12 and P-13 annexed to this writ
petition are correct or not. Petitioner no.1 was also directed to
be present on that date. Annexure 'P-12' is acceptance of
voluntary retirement of writ petitioner no.1 and 'P-13' relates to
appointment of petitioner no.2 being the son of petitioner no.1
(Sukumar Santra). On the next date when the matter appeared,
learned Single Judge of this Court being prima facie satisfied
about the facts that the petitioner no.1 is entitled to get some
amount on the account of voluntary retirement scheme, which
has been opted by the writ petitioner no.1 at the advice of the
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respondents and was accepted by them, a sum of Rs.5000/-
(rupees five thousand only) was directed to be released in favour
of the writ petitioner no.1 without prejudice and pending further
decision, etc.
Learned Counsel submitted that affidavit in opposition
was used by the F.C.I. and in the said opposition these facts
were admitted. It was also stated that from the report it
revealed that petitioner no.1 was alive and has been suffering
acute Leprosy. Although no decision was communicated to the
writ petitioner no.1 about releasing voluntary retirement dues
and appointment of his son in his place on compassionate
ground but for the first time, in the affidavit in opposition it was
alleged that Arun Malik died after serving F.C.I. in the name of
Sukumar Santra for ten years and the original authority decided
not to consider appointment afresh at such belated stage since
the affairs have lost its sequence far earlier. In the said
opposition it was admitted that Sukumar Santra who was alive
and asked to apply for voluntary retirement under the scheme
in force was allowed to retire voluntarily on the basis of his
application. It was also admitted that Voluntary Retirement
Scheme, 2003 (hereinafter referred to as 'VRS') stipulates
payment of compensation benefit both for "Service Rendered
Period" and "Service Left Period". The Zonal Officer (East) was
approached vide Regional Officer letter dated 23rd February,
2004 for necessary guideline in this regard.
In reply, the Zonal Officer informed that question of
appointment of next kin/application under VRS comes if and
when the incumbent works in the Corporation and asked to
initiate department disciplinary proceedings against the Depot-
in-Charge, Howrah-II depot under Regulations 58 of FCI staff
Regulations, 1971. Writ petitioner no.1 was not allowed to get
the benefit on the allege plea that he did not render any service
in the Corporation since his appointment. It was also
mentioned in the affidavit in opposition that the workers union
forwarded claim of Smt. Rina Santra, wife of writ petitioner no.1
for payment of gratuity, CPF dues, Group Insurance amount,
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Benevolent Fund amount etc. in respect of her deceased
husband. It was specifically mentioned that since the petitioner
no.1 asked in VRS benefit, the benefit of appointment on
compassionate ground cannot be given and the very purpose of
the VRS would be frustrated since the main purpose of the VRS
is to be abolish the post and for dispensing/rationalizing of idle
and surplus departmental labourers of FCI.
Learned Counsel for the writ petitioners further submits
that the concerned deponent accepted that the writ petitioner
no.1 was an employee of the Corporation and one Arun Malik
impersonated him as petitioner no.1 and worked in place of writ
petitioner no.1. Writ petitioner no.1 made a complaint and
investigation report proved the statement made by the writ
petitioners and immediately, thereafter, the deponent stated
that petitioner no.1 did not serve FCI. He submits that in the
event, writ petitioner no.1 did not serve FCI then there was no
question of asking the writ petitioner no.1 to submit application
for voluntary retirement and acceptance thereof. According to
him, plea taken by the deponent is totally false and a ploy to
refuse the benefits which petitioner no.1 is entitled to get under
the voluntary retirement scheme.
Learned Counsel drew attention of this Court that the
deponent himself admitted that VRS stipulates payment of
compensation benefit both for "Service Rendered Period" and
"Service Left Period". Therefore, writ petitioner no.1 is entitled
to get the benefit for the period he served and also for the period
he remained absent for the disease (leprosy). According to him
the writ petitioner no.1 should be paid his dues and a direction
be issued for considering the case of writ petitioner no.2 for
compassionate appointment.
Learned Counsel appearing for the F.C.I./respondents
submits that Deputy General Manager, F.C.I. has clearly stated
the facts. He submits that one Smt. Dharmadasi Santra, wife of
Sri Nilmani Santra was working as Departmental Ancillary
Worker as FSD/Nandibagan, Howrah-I, applied for retirement
on medical ground and appointment of her son, Sri Sukumar
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Santra in the year 1987. Accordingly, Smt. Santra retired and
Sukumar Santra (petitioner no.1) was appointed as Handling
Labour on 25th January, 1988 at FSD, Dharmatala, Howrah-II.
He was entitled to draw Basic Pay of Rs.585/- in the pay scale of
Rs.585-13-637-15-712-EB-16-840.
Only on 31st March, 1998 after long laps of ten years, writ
petitioner no.1alleged that one Sri Arun Malik, son of Sanatan
Malik had been working falsely impersonating himself as
Sukumar Santra. However, learned Counsel for the Corporation
submits that wife of writ petitioner no.1 prayed for service
benefits and also compassionate appointment stating her
husband died on 31st August, 1998. Matter was investigated by
the Regional Vigilance Wing and police report was submitted in
July, 2000 and it was found that Sukumar Santra is alive and
has been suffering from acute Leprosy. However, the regional
authority decided not to consider any appointment afresh at
such belated stage since the affairs have lost its sequence far
earlier. Sukumar Santra was asked to apply for voluntary
retirement and he applied. Writ petitioner no.1 was allowed to
have voluntary retirement on and from 8th January, 2005 as per
Voluntary Retirement Scheme, 2003. According to the learned
Counsel for the Corporation, writ petitioner no.1 is not entitled
to get any benefit since he did not work under F.C.I. According
to him, petitioners are not entitled to get any benefit since their
prayers are contrary to the statutory provisions. The concerned
officer who has asked the writ petitioner no.1 to submit
voluntary retirement did not have the power. Therefore, the writ
petitioner no.1 cannot claim any benefit. He also wanted to cite
some judgments to support his contention that on the fault of
some officers, the authorities cannot be held liable to make
payments and/or to give appointment to writ petitioner no.2.
He then submitted writ petition must fail.
After considering the submissions as well as the materials
available on records it appears that writ petitioner no.1
Sukumar Santra was given employment and he was serving the
respondents as handling labour. Fact remains that writ
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petitioner no.1 was a Leprosy patient and after a period of work
he had to take leave in view of his inability to perform regular
duties. It is also not in dispute that one Arun Malik
impersonated himself as petitioner no.1, Sukumar Santra, and
worked in place and stead of writ petitioner no.1. The
concerned respondents issued identity card in favour of Arun
Malik although Arun Malik was never appointed as an employee
of the F.C.I. The concerned respondents were responsible in all
respect, starting from issuing identity card and allowing Arun
Malik to work impersonating him as Sukumar Santra. At no
point of time any disciplinary proceeding was initiated against
Sukumar Santra for his absence nor there is any complaint by
any of the respondents that Sukumar Santra is deliberately
remaining absent and/or not performing his duties.
It is available from records that writ petitioner no.1 lodged
a complaint with F.C.I. authorities and the F.C.I. authorities got
the allegations enquired by its vigilance wing and the allegations
made by petitioner no.1 were proved. The respondents are
responsible for all these misdeeds and they were responsible for
allowing Arun Malik to work as Sukumar Santra, writ petitioner
no.1.
It is evident from records that a voluntary retirement
scheme was available and the concerned authorities being
satisfied about the position of petitioner no.1 asked the
petitioner no.1 to submit application for voluntary retirement.
Petitioner no.1 on such instruction applied for voluntary
retirement and also made a prayer for absorbing his son in any
suitable post on compassionate ground. Acceptance of
voluntary retirement of writ petitioner no.1 was communicated
by the District Manager (Howrah), F.C.I. vide letter dated 8th
January, 2004. The contents of the letter dated 8th January,
2004 reads as follows:
"OFFICE OF THE DISTRICT MANAGER, HOWRAH
27, MIRZA GALIB STREET, KOLKATA - 700 016
Ref. No. DM/FCI/H/Genl/1/2000-01/63(7)
Dated- 8.1.2004
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ORDER
Option of following worker of F.S.D. Howrah-II under D. M(Howrah) for retirement under Voluntary Scheme of F. C. I. contained in your circular vide No. RO(IR)/VRS/2003/815(17) dated 16.10.2003 is being accepted by the Competent Authority w. e. f. 8.1.2004.
Name of the worker Name of the Depot
Dt. Of Retirement
Sri Sukumar Santra Howrah-II, F.C.I.
8.1.2004
DIST.
MANAGER(HOW), FCI
Distribution :-
1. Person concerne-
Sri Sukumar Santra,
Konabag Para, Bishalikhi Tala,
PO-Kona, Howrah.
House owner - Sri Paresh Bag.
2. The Asstt. Manager(A/cs), DO, FCI, Howrah,
3. The Sr. Regional Manager, 6, Royd St., Kol. 16 ! They are requested to
4. The Dy. Manager(IR), ZO, 10A, Middleton Row, ! advice what voluntary Kolkata- 71. ! Retirement benefit
5. The Dy. Manager(IR), 2, Ripon St., Kol.16 ! Sri S. Santra will be
6. The Dy. Manager(IA &PV), 69, G.C.Avenue ! entitled under this Kol. 13. ! Scheme.
7. Personal file."
This memo dated 8th January, 2004 was also forwarded to
1) writ petitioner no.1, Sukumar Santra, 2) The Assistant Manager (A/CS), FCI, Howrah, 3) The Sr. Regional Manager, 6, Royd St., Kol.16, 4) The Dy. Manager (IR), Z.O., 10A, Middleton Row, Kolkata-71, 5) The Dy. Manager (IRD), 2, Ripon St., Kol.16, and 6) The Manager (IA & PV), 69, G.C. Avenue, Kol.15. No one disputed to such acceptance.
The officers were requested to advise what voluntary retirement benefit Sri Santra would be entitled under the scheme. Therefore, Voluntary Retirement Scheme, 2003 was available and writ petitioner no.1 applied under the said scheme 10 as per advice of the concerned respondents. District Manager (Howrah), F.C.I. informed the petitioner no.1 that the voluntary retirement scheme application was accepted by the competent authority w.e.f. 8th January, 2004. It is also evident from the affidavit in opposition that according to sub-para (j) of para 3 of VRS 2003 payment of compensation benefit is allowed both for "Service Rendered Period" and "Service Left Period". Therefore, it can safely be concluded that petitioner no.1 is an employee of F.C.I. unless he is an employee there would be no necessity to ask him for filing application for VRS and there is no question of acceptance of VRS application under the scheme. Therefore, the writ petitioner no.1 being an employee of F.C.I. is entitled to get benefit as per VRS 2003. Accordingly the respondents are directed to release all benefits under VRS 2003 to the successors of the petitioner no.1, Sukumar Santra.
In this regard, it is pertinent to mention that while the writ petition was moved this Hon'ble Court specifically recorded that in case no justifiable reason is found for refusal then the petitioner no.1 will be entitled to get interest @ 18% per annum and this order was never questioned by the authorities. Therefore, order passed on 26th September, 2005 have become final and the respondent authorities are obliged to pay interest @ 18% per annum on the dues which the writ petitioner no.1 entitled to get under VRS 2003.
Now the question remains whether writ petitioner no.1's son is to be considered for compassionate appointment.
It is admitted that writ petitioner no.1 was a Leprosy patient. He was not capable of performing his daily work as handling labour. The concerned respondents advised writ petitioner no.1 to file application for VRS and also to apply for giving compassionate appointment to his son. His application for VRS was accepted and he was allowed to retire. Application for compassionate appointment was also considered. However, no final decision was taken. Petitioner no.1 repeatedly sent reminders and representations which were never answered. Although a plea of delay was taken in the affidavit in opposition 11 but that is purely an afterthought and have no basis specially when matter is pending since 2005. However, the concerned authorities failed to disclose any decision taken as regards the representations made by writ petitioner no.1 for giving compassionate appointment to his son.
In my considered opinion, concerned respondents ought to have considered the prayer of writ petitioner no.1 for giving employment to his son who is writ petitioner no.2 herein. Although learned Counsel for F.C.I. took a plea of mistake committed by some officers and argued that merely some officers made a mistake that cannot create an obligation to the Corporation, is not at all sustainable especially when there is no such mistake. It is evident from the affidavit in opposition that petitioner no.1 was allowed VRS and he was advised to apply for compassionate appointment of his son. His application was accepted and communicated to the District Manager(Howrah), F.C.I. and also communicated to all the officers. Therefore, had there been any such mistake, it would have been corrected instantly but there is no such step was taken by the concerned respondents. Therefore, this submission has no substance and, as such, rejected.
During the pendency of this writ petition, writ petitioner no.1 died and an substitution application being CAN 10868 of 2013 was filed and the same was allowed. Wife of writ petitioner no.1, Smt. Kanchan Santra was brought on record.
However, considering the facts and circumstances of this case, I direct Food Corporation of India authorities to release benefits available under VRS 2005 to Sukumar Santra, since deceased, with 18% interest after deducting an amount of Rs.5,000/-(rupees five thousand only) already paid to petitioner no.1 pursuant to the order passed by this Hon'ble Court, in favour of the wife of writ petitioner no.1, Smt. Kanchan Santra, and Sri Chandra Nath Santra, writ petitioner no.2, within four weeks from date of communication of this order. The concerned respondents are further directed to consider the case of the writ petitioner no.2 for compassionate appointment afresh and to 12 take a decision upon giving an opportunity of hearing to the writ petitioner no.2 and/or his authorised representative and allowing him to produce relevant circular, documents, judgment in support of his case, within six weeks from the date of communication of this order and to pass a reasoned order and to communicate the order to writ petitioner no.2 two weeks thereafter.
The writ petition is disposed of.
There will be, however, no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Ashoke Kumar Dasadhikari, J.)