Calcutta High Court (Appellete Side)
In Re: Patiram Bala vs Ramchandra Choudhury) Reported In Air ... on 19 June, 2013
Author: I. P. Mukerji
Bench: I. P. Mukerji
1
9.6.13
W. P. 16119 (W) of 2011
In re: Patiram Bala ... Petitioner
Ms. Debjani Sengupta
Mr. Ramaprasad Sarkar ... For the Petitioner
Md. Nizamuddin ... For the Food
Corporation of India
No affidavit-in-opposition has been filed by the Food Corporation of India.
Yet, the case of the writ petitioner is very seriously opposed by its learned
counsel Mr. Nizamuddin.
On 20th March, 2001, the petitioner was charge-sheeted by the Food
Corporation of India (hereinafter referred to as 'the respondent-corporation'). He
was working as Assistant Manager (Genl.) with the Corporation. The charge against him was that he had sanctioned payment of excess gratuity to thirteen "ex-deputationists" Class IV employees. This was achieved taking into account by their past service with the government of West Bengal. Allegedly, an excess amount of Rs.1,99,297/- had been paid.
This charge-sheet was adjudicated upon. A decision was made on 10th May, 2002 for deduction of Rs.50,000/- from the salary of the writ petitioner. He was also to be demoted to a scale, which was one scale lower. He preferred an appeal before the appellate authority which by an order dated 9th May, 2003 modified the punishment by setting aside the reduction in scale but upholding the order of penalty. The writ petitioner would only be censured. 2 Then many years intervened. It appears that similar punishment orders had been passed against other employees. Matters concerning the issue were taken to the High Court and to the Supreme Court.
Then on 2nd May, 2011 the respondent-corporation issued an inter- departmental communication expressing the opinion that pursuit of litigation would fetch no favourable result and that the gratuity be paid in full to the "deputationists". It was also stated in that letter that non-payment of gratuity would attract interest and contempt cases. I read a part of the said letter which is set out as follows:-
"......Since the stake of the Corporation is high on the dismissal of the Appeals both by the Hon'ble High Court, Calcutta and subsequently by the Hon'ble Supreme Court and even the review applications being dismissed and thereafter, the Hon'ble High Court, Calcutta dismissing similar analogous Appeals in view of the dismissal of the other Appeals by the Hon'ble Supreme Court, the revised gratuity payable to the deputationists be paid without any further delay. The delay already incurred will accrue further interest at the compound rate which may further enhance the amount payable.
The respective opinions by Mr. Y. prabhakara Rao, Advocate, Supreme Court of India and the Ld. Additional Solicitor General, High Court, Calcutta speaks of the fact that no useful or productive purpose would be served by filing SLPs against the orders dated 27.1.2011 and 28.1.2011 etc. The letter dated 07.3.2011 by Sri Rama Prasad Sarkar, Advocate, C/o Debjani Sengupta, Advocate, High Court, Calcutta, requesting compliance with the order of the Hon'ble Court and to make payment of gratuity with statutory interest to the concerned retired absorbed deputationists /private respondents at the earliest also since a threat with proceeding towards 3 Contempt of Court which is not at all desirable and may have serious consequences."
On this basis the writ petitioner has filed this writ claiming setting aside the order dated 10th May, 2002 and for refund of Rs.50,000/-.
At this stage, I cannot help but comment on the merits of the case. The Food Corporation of India (Death-cum-Retirement Gratuity) Regulations, 1967 were placed before me. Explanation 4 to Regulation 3 is as follows:-
"Qualifying service shall also include service rendered in the Government after completion of 18 years of age by an absorbed deputationist provided that the amount of death-cum-retirement gratuity received by him, if any, from the Government in respect of the service rendered by him in the Government is deposited with the Corporation, immediately on receipt of such gratuity after his absorption in the Corporation."
It follows from this explanation and the above stand of the respondent- corporation that the writ petitioner acted bona fide in including the past services of the concerned employees with the State government in the calculation of gratuity. There is no dispute whatsoever that those employees were absorbed deputationists from the government.
Mr. Nizamuddin, learned counsel for the respondent-corporation, took various technical points. He cited paragraphs 10 and 13 of the judgement (the Secretary to the Government of West Bengal, Home Department -vs- Ramchandra Choudhury) reported in AIR 1973 (Cal) 220, which was in a writ filed for a claim of arrear salary and argued that a writ was not maintainable to claim money. In the facts and circumstances of that case, the Division Bench of our Court held that a monetary claim could not be made in a writ. 4
He relied on State of Orissa -vs- Pyarimohan Samantaray reported in AIR 1976 SC 2617. He argued that the writ petitioner had retired on 30th April, 2004. The claim should be thrown out on the ground of inordinate delay.
Furthermore, he tried to argue that stale claims should not be allowed to be revived on the basis of the judgements of Courts, unless those judgements specifically allowed stale claims to be entertained by the Court.
Now, I come to my findings.
First of all, as I have noted earlier, the very basis of issuing the charge- sheet was wrong. The writ petitioner, in my opinion, had rightly acted on the basis of the above regulations and had done no wrong.
Secondly, the letter of Food Corporation of India dated 2nd May, 2011, being annexure 'P-9' at page 31 to the writ petition, clearly shows that they also realised that the departmental proceedings had been taken erroneously, and that the accusations made against their employees for claiming excess payment of gratuity were unfounded.
In that letter the respondent-corporation did not say that gratuity claims of and before any particular year were to be excluded. The gratuity dues of each employee, would be paid in full.
Quite soon after the communication dated 2nd May, 2011 the writ petitioner filed this writ.
In my opinion, this communication gave a new cause of action to the writ petitioner to compel the respondent-corporation to act in terms of their decision without discriminating against any employee. In view of the above stand of the 5 respondent-corporation, the adjudication order could not be enforced against the writ petitioner. So, here the question of delay does not arise.
As far as back the contention of Mr. Nizamuddin that the writ application contained a pure and simple money claim, I am of the opinion that the case made out in the application is for enforcement of the decision of the respondent- corporation dated 2nd May, 2011. This is the cause of action in the writ. The refund claim of Rs.50,000/- can be treated to be a consequential relief. Therefore, the ratio in the case of AIR 1973 (Cal) 220 (supra) does not apply.
For all those reasons, this writ application is allowed by passing orders in terms of prayers (a) and (b) of the writ petition.
The writ petitioner would be entitled to simple interest, at the rate of six per cent per annum, on Rs.50,000/- from the date of deduction till the date of actual payment.
The refund is to be made within four weeks from the date of communication of this order.
Mr. Nizamuddin, learned counsel for the respondent-corporation, prays for stay of this order. Considering the fact that the respondent-corporation did not file any affidavit-in-opposition, the prayer for stay is refused.
Urgent certified photocopy of this order, if applied for, be supplied as expeditiously as possible.
(I. P. Mukerji, J.)