Calcutta High Court (Appellete Side)
Govt. Of West Bengal & Ors vs Alok Kumar Sarkar on 24 November, 2021
27 24.11.21 W.P.S.T 64 of 2021
Ct. No. 4
Ab/Saswata
The Principal Secretary, Dept. of Labour,
Govt. of West Bengal & Ors.
Vs.
Alok Kumar Sarkar
---------------
Mr. Tapan Kumar Mukherjee, AGP
Mr. Biswabrata Basu Mallick,
Mr. Sayan Ganguly
....for the petitioners/State
Mr. K. K. Lahiri,
Mr. Debaditya Chattopadhyay
... for the repsondent
The present writ petition is at the behest of the
Government, assailing an order no. 3 dated 29th
November 2019, passed by the West Bengal
Administrative Tribunal in OA 708 of 2019 by which
a direction was passed upon the Principal Secretary
to the Government of West Bengal, Department of
Labour to take necessary steps for revised leave
encashment on the basis of the notional fixation of
pay on the date of the retirement in terms of ROPA
2009. The respondent/petitioner filed the tribunal
application for grant of the balance amount of revised
leave encashment which was turned down by the
Principal Secretary, Government of West Bengal,
Department of Labour vide order dated December 15,
2017.
It is undisputed that the private
respondent/petitioner retired on October 31, 2006
and after the promulgation of the West Bengal
Services (Revision of Pay and Allowances) Rule, 2009,
the effect thereof was given on and from January 1,
2006 but subsequently, the Government decided not
to extend the financial benefit after fixation of pay to
the Government employees from the date of its
coming in force but from a fixed date that is April 1,
2008.
The contention of the respondent/petitioner was
that since he received his pension, gratuity and the
commuted value of pension as per the revised scale
in terms of ROPA 2009, but was denied the
encashment of the leave on such revised scale, that
is on the basis of the notional fixation of pay on the
date of the retirement.
The Tribunal, while allowing an application
relied upon its judgment delivered in the case of
Amalendu Bikas Mahapatra -vs- The State of
West Bengal & Ors. (OA 1366 of 2014), wherein it
was held that any Government employee retiring on
August 31, 2007, after obtaining a notional fixation
of pay on the date of the retirement, is entitled to get
the revised leave encashment on the basis of the
notional fixation of pay on the date of the retirement
in terms of ROPA 2009. It was thus held that in view
of such decision, the respondent/petitioner is
entitled to the relief claimed in the Tribunal
application.
Our attention is drawn to the fact that the
judgment relied upon by the Tribunal in the case of
Amalendu Bikas Mahapatra (Supra) was assailed
before this Court in the writ jurisdiction and the
same was set aside by the Division Bench.
Since the ratio of the judgment lost its binding
efficacy having set aside by the higher forum, the
decision founded thereupon cannot withstand
independently, but has to fall as a consequential
effect.
Though the learned Advocate for the private
respondent/petitioner tries to impress us that apart
from the said judgment, the respondent/petitioner
has a merit in the case but since the impugned
judgment was passed upon the said decision, which
was subsequently set aside by the High Court, it
cannot withstand and a fresh decision is required to
be taken by the Tribunal on merit. Though a plea is
taken by the private respondent/petitioner that an
application for review has been filed challenging the
order of this Court, rendered in the case of
Amalendu Bikas Mahapatra (Supra), but unable
to apprise the Court that the operation of the said
judgment was stayed. Even if a review is filed and
there is no order of interdict, it does not lose its
binding efficacy and the ratio remains binding not
only between the parties but on the subject, so
decided.
The aforesaid expression can be strengthened
from another angle. When the legislatures have
incorporated expressed provision relating to an
appeal, where mere filing an appeal does not
tantamount to stay of enforceability of the order (see:
Order XLI Rule 5 CPC), mere filing a proceeding
before this Court and in absence of any expressed
order staying the operation of the said order, such
order remains binding between the parties or the law
laid down therein remain effective.
Since the entire impugned order was based upon
the said judgment which has been set aside, we thus
set aside the impugned order and remand the matter
back to the Tribunal for consideration on merit and
in accordance with law.
With these observations the writ petition being
W.P.S.T. 64 of 2021 is disposed of.
(Harish Tandon, J.)
(Rabindranath Samanta, J.)
