Kakali Ghosh vs State of West Bengal And Ors.

Category of

Contractual

Employee","Existing

Honorarium/

Head/ Month","Enhanced

Honorarium w.e.f.

01/06/2010

Para

Teacher(Primary)","Rs. 4,000/-",Rs. 5400/-

Para Teacher

(Upper Primary)",Rs. 5500/-,Rs. 7425/-

Siksha Bandhu,Rs. 4000/-,Rs. 5400/-

Voluntary

Resource Persons",Rs. 2000/-,Rs. 2700/-

Special Educator,Rs. 6000/-,Rs. 8100/-

38.4. The cases in which the Labour Court/Industrial Tribunal exercisespower under Section 11-A of the Industrial Disputes Act, 1947 and finds that",,

even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but",,

holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages.",,

However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had",,

foisted a false charge, then there will be ample justification for award of full back wages.",,

38.5. The cases in which the competent court or tribunal finds that theemployer has acted in gross violation of the statutory provisions and/or the,,

principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing",,

payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere",,

with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the",,

employee/workman to get full back wages or the employer’s obligation to pay the same. The courts must always keep in view that in the cases of,,

wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a",,

premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.,,

38.6. In a number of cases, the superior courts have interfered with theaward of the primary adjudicatory authority on the premise that finalisation of",,

litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is,,

the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an,,

employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given,,

to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-Ã -vis the",,

employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can",,

ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course",,

suggested in Hindustan Tin Works (P) Ltd. v. Employees.,,

38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal that onreinstatement the employee/workman cannot claim continuity of service,,

as of right is contrary to the ratio of the judgments of three-Judge Benches referred to hereinabove and cannot be treated as good law. This part of,,

the judgment is also against the very concept of reinstatement of an employee/workman.â€​,,

Drawing inspiration from such decision, we hold that the appellant shall be entitled to full honorarium for the period she was dis-allowed by the",,

managing committee to discharge the duty of para-teacher. We, however, leave the Secretary of the School Education Department free to take such",,

steps against the members of the managing committee of the school who, at the relevant point of time, had taken the illegal decision of virtually",,

removing the appellant from service without even the allegations against her being proved in a duly constituted disciplinary proceeding.,,

For the reasons aforesaid, the order under appeal stands set aside. The resolution dated 27th August, 2011, impugned in the writ petition also",,

stands set aside. Since we have set aside the resolution dated 27th August, 2011 in which the order of suspension had merged, we do not see any",,

reason to separately set aside the order of suspension. Consequent to the above, the appellant shall now be allowed to discharge the duty of a para-",,

teacher in the school. We grant the appellant 15 days’ time to report for duty before the teacher-in-charge of the school.,,

The appeal stands allowed without, however, any order as to costs.",,

The arrears of honorarium shall be computed by the managing committee of the school and released in favour of the appellant within three months,,

of her joining.,,

If funds are sought for from the District Project Officer or the State Project Director, they shall ensure that adequate fund is released to meet the",,

requirement of payment to be made to the appellant on account of arrears of honorarium.,,

We had called for the personal appearance of Mr. Jyotirmay Basu, Officer-incharge Chakdaha Police Station because on a previous occasion it",,

had been submitted that he had raised certain questions about an order passed on this appeal.,,

We have been informed that since the copy of the order dated 6th July, 2018 passed by us was a bit hazy and, therefore, not legible, the managing",,

committee of the school had refused to accept the same when it was sought to be tendered by a police officer attached to Chakdaha Police Station,,

and that is the reason, he requested Mr. Chattopadhyay to supply a legible copy thereof.",,

The explanation appears to be acceptable. Therefore, we propose not to take the matter any further. Personal appearance of Mr. Jyotirmay Basu",,

and Ms. Sujaya Goswami is dispensed with.,,

Urgent photostat certified copy of this order, if applied for, be supplied expeditiously, after complying with all",,

formalities.                                            Â,,