The Braithwaite Burn And Jessop ... vs Smt. Saroj Agarwal & Ors
2021 Latest Caselaw 1898 Cal

11.03.2021
   38+39
 PG Ct.04
                                       MAT 140 of 2021
                                           +
                                  IA No. CAN 1 of 2021
             The Braithwaite Burn and Jessop Construction Company Limited
                                           Versus
                                  Smt. Saroj Agarwal & Ors.
                                           With
                                     MAT 141 of 2021
                                            +
                                   IA No. CAN 1 of 2021
             The Braithwaite Burn and Jessop Construction Company Limited
                                           Versus
                                  Smt. Saroj Agarwal & Ors.

              Mr. S.N. Mookherjee, sr. adv.
              Mr. Soumya Majumdar
              Mrs. Sharmistha Ghosh
              Mr. S. Bhattacharya
              Mr. Victor Chatterjee
                                               ....    For appellant
              Mr. Surajit Samanta
              Mr. Balai Lal Sahoo
              Mr. Sankha Prasad Roy
                                               ....   For respondent no.1

Mr. Anuran Samanta .... For respondent nos.2, 3,4

Mr. Majumdar, learned advocate appearing on behalf

of appellant refers to impugned order dated 13 th March,

2020 for, inter alia, the following:

"It is clearly laid down in the CDA Rules that the charge against the petitioner is in essence "neglect of work" in a employee is 'misconduct' under Rule 5(i) of the CDA Rules...."

He draws attention to the clause under the rule providing

for misconduct. Rule 5(i) is reproduced below:

"RULE : 5 MISCONDUCT:

(i) Neglect of work or negligence in the performance of duty including malingering or slowing down of work."

Mr. Mookherjee, learned senior advocate leading Mr.

Majumdar, draws attention to the other impugned order

dated 25th January, 2021. On the question whether writ

Court can grant relief of back wages, he submits,

paragraphs 13 to 23 in the order are to be seen. There was

no pleading or prayer, regarding back wages, in the writ

petition. Oral argument in law was made on behalf of

petitioner, compelling his client to meet them. He relies on

judgment of Supreme Court in Uttar Pradesh

Warehousing Corporation v. Vijay Narayan Vajpayee

reported in (1980) 3 SCC 459, paragraphs 14, 17 and 18.

He submits, there has to be adjudication before there is

direction for payment of back wages. In cases of workmen,

the adjudication is before the Tribunal. His point is,

approach by respondent directly to the writ Court without

pleading or prayer for back wages cannot entitle her to the

relief. This decision was cited also before the first Court.

The next case, also cited before the first Court, is Deepali

Gundu Surwase v. Kranti Junior Adhyapak

Mahavidyalaya reported in (2013) 10 SCC 324. He relies

on several paragraphs, in particular paragraph 22. He

submits, Supreme Court said in the paragraph that if

employer wants to deny back wages to the employee or

contest his entitlement to get consequential benefits, then

it is for him/her to specifically plead and prove that during

the intervening period the employee was gainfully employed

and was getting the same emoluments. He submits, in this

case there was specific pleading by the employee of not

having been gainfully employed. In the present case there

is no pleading whatsoever.

Paucity of time intervenes. List on 16th March, 2021.

Affidavit of service is filed on supplementary affidavit

served.

(Arindam Sinha, J.)

(Suvra Ghosh, J)