Aranaya Basu Roy vs R.Subrahmanyam & Ors

The Court, by order dated 25th June, 2019 directed the respondent Nos.1 and 2 in the writ petition to take immediate appropriate steps to consider the prayer of the petitioner for absorption within a period of eight weeks after taking into consideration the recommendation of the Bhat Committee as well as the recommendation of NIT, Durgapur and MHRD.

In compliance of the aforesaid direction the Under Secretary to the Government of India, MHRD by an order dated 22nd August, 2019 decided that NIT, Durgapur may extend the age relaxation benefit to NTMIS employees as communicated by MHRD vide its revised Recruitment Rules for non-teaching staff and take further action. NIT, Durgapur may consider the recommendation of the Bhat Committee/Institute in favour of the petitioner for arriving at a decision in the matter. The proposal may be placed before the Board of Governors of the Institute for its consideration and approval.

The Court directed the respondents to relax the criteria of age at the time of considering the case of the petitioner for absorption as the petitioner served the institution since 1989.

According to NIT, Durgapur, prayer of the petitioner for absorption could not be accepted as he attended his age of superannuation.

The submission of NIT for not absorbing the petitioner cannot be accepted by the Court. The Court specifically directed the respondents to relax the criteria of age because the Court was made aware of the fact that the petitioner was nearing the age of superannuation. The order of the Court was passed on 26th June, 2019 and a period of eight weeks was given to the respondents to pass the reasoned order. The Union of India complied the order of the Court within the stipulated time period and forwarded the matter to NIT to extend the age relaxation benefit to NITMS employees. The petitioner attained his age of superannuation after expiry of the time stipulated by the Court.

It appears that the action of the contemnors is in violation of the order passed by the Court. The contemnors failed to act within the time as prescribed in the order passed by the Court and are presently taking the plea that the petitioner has reached his age of superannuation in the meantime.

NIT, Durgapur/Contemnors submits that the initial direction was upon the Union of India to consider the case of the petitioner for absorption, and by the time the matter was referred to NIT, time limit prescribed by the Court nearly expired.

It appears that even after the order was passed by the Ministry upon NIT, Durgapur in August, 2019, there was some time left with NIT to act in accordance with the order passed by the Ministry in compliance of the order passed by the Court. NIT acted only after the petitioner attained his age of superannuation.

When the Ministry directed the Institute to extend the age relaxation benefit to the petitioner, NIT ought to have acted in accordance with the direction passed by the Ministry and ought not to have raised the issue of attaining the age of superannuation as a plea for not absorbing the petitioner.

The Court further directed the contemnors to pay his outstanding dues from 1st April, 2013 to 19th May, 2017 after enquiring about the period for which the petitioner actually worked and has not been paid his dues.

According to the contemnors,there are no record in their office in respect of the petitioner from which the contemnors can come to a finding that the petitioner actually worked in the said Institute and his period of work. The petitioner has annexed documents with the supplementary affidavit-in-reply which he has filed showing the applications he made for leave when he was serving the Institute and the documents pertaining to his joining duty after leave.

The petitioner has also relied upon certain documents in the letterhead of National Institute of Technology, Durgapur. The said documents appear to be bills of purchase of articles, which were paid, wherein the date and signature of the petitioner appears as the Dealing Assistant (Accounts). The bills are dated 17th July, 2014, 29th April, 2015 and 4th November, 2015. The bills support the claim of the petitioner that he was in service during the aforesaid period of time.

The contemnors contend that the documents produced by the petitioner are not enough to take a decision with regard to the period during which he actually served the Institute. According to the contemnors, the petitioner ought to show the attendance register so show that he was actually present.

Such submission of the contemnors cannot be appreciated at all. It is the duty of the employer to maintain the attendance register and it is neither the responsibility nor the duty of the employee to preserve documents of his attendance. The stand of the contemnors does not appear to be a fair one. The contemnors appear to act contrary to the direction passed by the Court.

As last chance, a further opportunity is granted to the contemnors to comply with the direction passed by the Court by absorbing the petitioner in service upon condonation of his age and for payment of his outstanding dues for the period from 1st April, 2013 to 19th May, 2017 as directed in the order dated 25th June, 2019.

MHRD in their order dated 22nd August, 2019 directed the Institute to clearly mention in the order to be issued in favour of the petitioner, that the action is being taken on the direction of the Court and the same shall not be taken as a precedent.

The petitioner admittedly served in the said Institute for a considerable period of time. The employee similarly situated as the petitioner has been absorbed and financial benefit extended to him. The contemnors are to extend the same benefit to the petitioner.

Let the matter appear in the list once again on 1st October, 2021.