Calcutta High Court (Appellete Side)
For The vs State Of West Bengal Reported In on 22 March, 2011
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
22.3.2011. M.A.T. No. 1075 of 2009
Mr. Debayan Bera
Mr. Sakti Prasad Chakrabarti
.. for the appellant.
Mr. Kamalesh Jha
.. for the writ petitioner/respondent.
_______
Pratap Kumar Ray, J.
Heard the learned Advocates appearing for the parties.
Assailing the order dated 19th August, 2009 passed in W.P. No. 17503 (W) of 2004, this appeal has been preferred.
The impugned order reads such:-
"19.8.09. - The writ petitioner initially was appointed as a Badli Driver by the South Bengal State Transport Corporation on the terms and conditions appearing in the appointment letter dated 11th November, 1989. By an order dated 18th November, 1990 he was absorbed in the post of a driver on probation basis. The order of absorption dated 18th November, 1990 contains the following stipulation as regards the verification of his antecedents:-
" The absorption is subject to his antecedents and character being found satisfactory as may be disclosed by the Verification Report submitted by the Police and the service will be terminated if the result of such verification be adverse."
The writ petitioner was absorbed as a regular employee by an order dated 8th June, 1992 after successful completion of the period of probation. The writ petitioner has been removed from service by an order of termination dated 15th January, 2004 which is under challenge.
The learned Advocate appearing for the respondent nos. 2 and 3 sought to justify the termination on the basis of Regulation 15 which provides as follows :-
"Regulation 15. Verification of Antecedents:
A candidate shall ordinarily be appointed only after verification of his character and antecedents. In exceptional cases and in the interest of the Corporation a candidate may be appointed temporarily pending such verification subject to the condition that if the report of such verification is found unsatisfactory, the appointment shall stand terminated and the decision of the appointing authority in this regard shall be final."
Regulation 15, in my view, has no manner of application to the facts and circumstances of this case.
The writ petitioner was absorbed on probation basis by an order dated 28th November, 1990 subject to verification of his antecedents. Thereafter, he was confirmed in his post after successful completion of the period of probation. The authority is deemed to have satisfied itself as regards the antecedents of the petitioner before issuing the order of confirmation. The Regulation 15 does not stipulate for verification of antecedents of a regular and permanent employee. The high-handed attitude meted out to the writ petitioner in summarily terminating his service by the impugned order dated 15th January, 2004 after 12 (twelve) years of regular service is chocking to say the least.
The learned Advocate, for the respondent nos. 2 and 3, submitted that the order under challenge is an appealable order. That in my view does not really stand in the way when the respondent has passed an order ignoring all norms of fair play and the principles of natural justice. In the facts of the case alternative remedy is no bar. If any authority is required, reference may be made to the judgement in the case of Whirlpool Limited reported in 1998(8)SCC 1 (para 15) The order of termination is therefore set aside. The writ petitioner is reinstated with full back wages including all benefits. He shall be allowed to join his duty, if he already has not attained the age of superannuation, forthwith.
The writ petition is, thus, disposed of." By an interim order dated 3rd February, 2011, we discussed the point at length and thereby directed joining of the writ petitioner in service. The order dated 3rd February, 2011 reads such:-
"3.2.2011 It appears from the record that the petitioner when became a confirmed staff for a permanent post of South Bengal State Transport Corporation, the said Corporation received one police verification report from someone who signed on behalf of the Deputy Inspector General of Police, Intelligence Branch, West Bengal and on the basis of that report, service of the writ petitioner was terminated.
Report of the said police officer reads such :-
" Immediate Intelligence Branch, West Bengal ..., Lord Sinha Road, Kolkata-71.
Dated, the 9th Jan., 2004.Memo. No. 609
S-
7../03/SB/V.R. To The Divisional Manager, Belgharia Divisional Office, South Bengal State Transport Corporation, 5/5, B.T. Road, Kolkata-56, West Bengal.
Sub : Verification of Character and antecedents of Shri Avilash Singh, S/o. Late Gour Singh of 402,G.T.Road(S),P.S. Shibpur, Dist. Howrah.
Ref : Your Office Memo. No.
BDO/196/SBSTC
Dt.19.10.02 addressed to
S.P.,D.I.B., Howrah.
......
In returning herewith the Verification Roll of the abovenamed candidate the undersigned writes to inform that Government consider the Subject Shri Avilash Singh unsuitable for employment to the post of H.V. Driver under S.B.S.T.C., 5/5, B.T. Road, Kolkata-56 vide memo. No.1481-P.S. dtd. 22.12.03 of the Asstt. Secy. To the Govt. of West Bengal, Home (Political) Department.
Sd/- Illegible
for Dy. Inspector
General of Police
I.B., West
Bengal. "
The order of termination reads such :-
" SOUTH BENGAL STATE TRANSPORT
CORPORATION
BELGHORIA DIVISIONAL OFFICE
No. BDO/4200/SBSTC/03-04 Date
15/01/04
To
Sri Avilash Singh,
Heavy Vehicle Driver, Howrah Depot,
S.B.S.T.C.,
S/o. Late Gour Singh,
406, G.T. Road, B. Garden,
P.S. Shibpur,
Dist. Howrah.
You were appointed as Heavy Vehicle Driver vide no.5137/SBSTC/90 dtd. 18.11.90 pending verification to your antecedents and character.
Your character and antecedents were verified by the Intelligence Branch, Govt. of West Bengal and on 9th January, 2004 the office of the Deputy Inspector General of Police, Intelligence Branch, West Bengal has intimated the Corporation that the Government has considered, you unsuitable for employment to the post of Heavy Vehicle Driver under South Bengal State Transport Corporation.
Now, as per Clause 7 of your appointment letter and in exercise of the power given to me under Regulation 15 of SBSTC Employees Service Regulations, I do, hereby, terminate your service with immediate effect since the report of verification is unsatisfactory.
Sd/- Illegible Divisional Manager, Belghoria Division, South Bengal State Transport Corpn. "
It appears that Clause 7 of the appointment letter and the Regulation 15 of the Service Regulation of the Corporation have been applied to terminate the service. Clause 7 of the appointment letter dated 18th November, 1990 reads such :-
" 7. The absorption is subject to his antecedents and character being found satisfactory as may be disclosed by the Verification Report submitted by the Police and the Service will be terminated if the result of such Verification be adverse."
It appears that the said Clause 7 was stipulated when the writ petitioner was on probation. Subsequently, his service was confirmed in regular establishment on completion of probationary period. The verification report of the police "not satisfactory" without any factual details. Having regard to such position, we are of the view that quashing of termination order by learned trial Judge prima facie cannot be said as bad and illegal. Accordingly, we are not inclined to pass any order of stay relating to reinstatement of the writ petitioner/respondent in service. Mr. Bera, learned Advocate for the Corporation, has frankly submitted before this Court that his client is agreeable to reinstate the writ petitioner within a week from this date.
Let said decision of reinstatement be communicated to the writ petitioner for his joining in service forthwith.
So far as the other part regarding payment of full back wages including all service benefits as directed by learned trial Judge, we are of the view that said order should be stayed. It is ordered accordingly, till hearing of appeal.
It is made clear that the writ petitioner will get current salary and other service benefits, by considering his service as continuous.
The stay application is accordingly disposed of.
In view of said fact, we are of the view that the appeal should be disposed of as expeditiously as possible.
Let the informal paper book be prepared and copy be served to the writ petitioner/respondent no.1. The other respondent nos.2 to 5 are the proforma respondents, who are the Officers of the appellant. The service of notice of appeal and other formalities stand dispensed with in respect of said respondent nos.2 to 5.
Let informal notice be served to the writ petitioner/respondent no.1 intimating the date of hearing through the learned Advocate.
The matter will appear three weeks hence in the list for final disposal." In terms of the order dated 3rd February, 2011 the writ petitioner joined in service and now he has been posted at Arambag. Now the only question left for our consideration about back wages which has been granted by the learned Trial Judge. The grant of back wages has been resisted strongly by the appellant by contending, inter alia, that in the writ application there is no such pleading that the writ petitioner was not employed gainfully during the long period from the date of termination till the date of filing of the writ application and in the Appellate Court no such averments made. The grant of back wages earlier was an automatic process as soon as the order of termination was quashed. Now there is a sea change of the said view. Reliance is placed to the judgement passed in the case Novartis India Limited -vs- State of West Bengal reported in (2009) 3 SCC 124 where it is held " it is not a matter of right it depends on fact of each case. It is granted, on applying the principle on grant of damages. The burden of proof the workmen remain unemployed on him. Shift of legal stand of proof from earlier judgement/view on application of Section 106 of Evidence Act. Grant of back wages depends on the factors, namely, nature of appointment, mode of recruitment, length of service and whether the appointment was in consonance with Articles 14 and 16 in case of public employment." Same view also has been expressed in the case Asoke Kumar Sharma -vs- Oberoi Flight Services reported in (2010) 1 SCC 142 wherein even the dismissal order was declared as wrongful and order of reinstatement was passed, but no back wages granted. In that case the Court only granted compensation. In the case Senior Superintendent, Telegraph (Traffic), Bhupal -vs- Santosh Kumar Sil reported in (2010) 6 SCC 773, the Court held that back wages is not an automatic process even for illegal order of termination and money compensation will suffice.
Since in the instant case no evidence laid by the workmen/ the writ petitioner, to this effect that he was not gainfully employed otherwise, we cannot grant back wages on the basis of the aforesaid settled legal position, but the some amount of compensation could be granted in the nature of damage.
Accordingly, the order passed by the learned Trial Judge so far as back wages is concerned is set aside and quashed. In lieu of back wages, we are granting compensation to the extent of 25% of the salary as would have been payable to the writ petitioner had he been in service from the date of dismissal till the date of reinstatement in service in terms of interim order passed by this Court. The writ petitioner would be deemed in continuous service. So, judgement under appeal stands allowed to the extent of back wages issue.
The appeal is allowed partly so far as the back wages issue is concerned and dismissed partly so far as reinstatement issue is concerned.
Let xerox certified copy of this order, if applied for, be given to the learned Advocates appearing for the parties expeditiously.
(Pratap Kumar Ray, J.) I agree.
(Dr. Mrinal Kanti Chaudhuri, J.) sks.