Binod Chandra Jena vs Indian Institute of Technology, Kharagpur & Ors

Affidavit of service is filed.

Petitioner was engaged as contract labour in execution of a project of Indian Institute of Technology, Kharagpur. Upon the project coming to an end the employment of petitioner was terminated. It appears from ''Annexure P-7'' that petitioner''s termination of employment as contract labour was on or before February, 1987. Petitioner had approached this Court and ultimately was successful in getting appointed by the Institute on 17th December, 1990.

Petitioner made a second writ petition in which there was direction by order dated 11th July, 2013 to give him notional pay protection till before January, 2007 and thereafter monetary benefit which would be calculated and/or taken note of at the time of fixing the retiral dues of the petitioner.

Mr. Roy, learned advocate appears on behalf of petitioner and submits with reference to the said annexure, back wages paid to his client included payment of Rs. 1,640/- for the month of December, 1990 which when notionally protected up to January, 2007 would result in money payable by the Institute. However, by memo dated 16th April, 2015 made pursuant to the order passed in his third writ petition, his client''s such claim stood rejected. He seeks setting aside of the said memo.

Mr. Majumder, learned advocate appears on behalf of respondents and submits, there should be no interference. The direction made in order dated 11th July, 2013 had been complied with as would appear from the impugned order.

In the impugned order the said order dated 11th July, 2013 passed by a learned Single Judge of this Court in W.P. 20087(W) of 2007, was extracted and is also reproduced below: "Heard the learned Counsel for the parties. It appears that in case of some employees the concerned respondents reappointed them, paid their arrear salaries and gave them continuity of service and also gave them pay protection but in the instant case of the writ petitioners they have denied pay protection.

In my view, the actions of the respondents are arbitrary and illegal as well as discriminatory. Therefore, the respondents should be directed to give similar benefits i.e. pay protection in favour of the writ petition. However, in the facts and circumstances of this case I direct the respondents to give notional benefit of pay protection till before January, 2007 which would be calculated and/or taken note of at the time of fixing the retiral dues of the writ petitioner and the writ petitioner would be given monetary benefit from January, 2007 onwards. Since the writ petitioner no. 7 has already retired, the calculation of retiral dues would be made accordingly. The entire exercise should be completed within a period of six weeks from the date of communication of this order.

The writ petition is, thus, allowed. There would be no order as to costs."

The petitioner''s claim made before the authority which passed the impugned order, as appearing from his application is reproduced below: "It is evident from the G.O. No. Estt/643/2013 dated 28/11/2013 that the pay of Sri Binor Chandra Jena, Petitioner No. 1 was fixed in the scale of pay of Rs. 750-940/- with effect from 17/12/1990. In the Writ Petition the appointment letter dated 05/03/1981 was annexed therein it appears that my pay was fixed in the scale of Rs. 380-540/-. Last pay drawn by me in the post Care-taker was Rs. 1640/-+ D.A. As per Court''s Order I an entitled to pay protection and my pay should have been fixed in the scale of Rs. 380-640/-. Last pay drawn in the above noted scale should have been protected. It is evident that pay was protected in the scale of Rs. 750-940/-.

Under such circumstances, you are requested to refix my pay in the scale of Rs. 380-640/- and grant the benefit of last pay drawn by me i.e. Rs. 1640/- and also to release monetary benefit from 2007, as directed by the Hon''ble Court."

The Registrar of the Institute in the impugned order reasoned as would appear from the extract:- "Now, while analyzing the operative portion of the Judgement and Order dated 11th July, 2013, I find that the Hon''ble High Court at Calcutta has been pleased to direct the Querist to give notional benefit of pay protection till before January, 2007 which would be calculated and/or taken note of at the time of fixing the retiral dues of the writ petitioner and the writ petitioner would be given monetary benefit from January, 2007 onwards. By necessary implication the Hon''ble Court has been pleased to direct to give pay protection of the last drawn pay of Shri Jena till January, 2007. Accordingly, the pay fixation was directed to be done from January, 2007.

When the petitioner had joined the post of Attendant he did so in the scale of Rs. 750-940/-. It is an admitted position that petitioner was given last pay by back wages in the scale of Rs. 380-640/-, which stood at the pay scale of Rs. 1350-2200/- as on 17th December, 1990. The direction made in order dated 11th July, 2013 was that pay protection should be given to the petitioner notionally till before January, 2007 and thereafter by monetary benefit. This means that though the petitioner actually drew pay in a lesser pay scale attached to the post he was appointed in on 17th December, 1990 and continued thereafter but for the purpose of calculation of his retiral benefits, the same had to be calculated giving him pay protection as in the scale of Rs. 380-640/- which stood at Rs. 1350-2200/- as aforesaid on December, 1990. This notional pay protection was to be given effect as such up to 31st December, 2006. On and from 1st January, 2007 taking into consideration the pay as protected, the retiral dues must be calculated on the basis of notional pay protection for calculation thereafter on the basis thereof for actual payment. This does not appear to have been done by the Registrar of the Institute.

For the reasons aforesaid, the impugned order is set aside. The said authority being the respondent no. 2 will revisit the matter in the light of the observations made above and make appropriate order within a period of four weeks from the date of communication of this order.

The writ petition is disposed of.

There shall be no order as to costs.