Calcutta High Court (Appellete Side)
Dr. Avijit Halder vs Icar- Agricultural Technology ... on 24 August, 2022
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P.A. 3164 Of 2019
Dr. Avijit Halder
Versus
ICAR- Agricultural Technology Application Research Institute (ATARI) &
Ors.
For the Petitioners : Mr. Ranajit Chatterjee, Adv.
Ms. Aniruddha Mitra, Adv.
Mr. Prosenjit Chatterjee, Adv.
For the BCKV : Ms. Lina Majumder, Adv.
For the State : Mr. Swapan Kumar Dutta, Adv.
Mr. Pradyot Kumar Das, Adv.
Heard On : 24.08.2022
Judgment On : 24.08.2022
Saugata Bhattacharyya, J.:
Petitioner in this writ petition has questioned the order dated 23 rd
June, 2015 issued by the Registrar (Acting) of Bidhan Chandra Krishi
Viswavidyalaya (for short "BCKV") whereby in order to forward the service book
as well as other documents of the petitioner to his present employer and
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regularisation of leave the Registrar has insisted upon the petitioner to pay the
salary and other financial benefits released in his favour for the period from 1 st
August, 2000 to 31st July, 2003 together with interest on the total amount as
indicated in the said order pursuant to a bond which the petitioner furnished
on 11th May, 2001 while he was working in the post of Lecturer (Research) in
the department of Animal Science, Faculty of Agriculture of BCKV.
The petitioner while working as Lecturer (Res) under BCKV decided to
undergo Ph.D. course under National Dairy Research Institute (NDRI), Karnal.
For undergoing such course petitioner was sanctioned a study leave for the
period on and from 1st August, 2000 to 31st July, 2002 by the concerned
authority of BCKV. Ultimately, petitioner completed the said Ph.D. course and
in order to complete such course he required three years time for which there
was requirement to sanction study leave for further period of one year from 1 st
August, 2002 to 31st July, 2003.
It is required to be mentioned herein as submitted by Mr. Chatterjee,
learned counsel representing the petitioner that as per the relevant statute of
BCKV the petitioner had to furnish a bond on 11 th May, 2001 (pages 39 and 40
of the writ petition) whereby petitioner undertook to render five years service
after completing the said course of Ph.D. on resumption of duty as Lecturer
(Res) in BCKV. It was also undertaken by the petitioner while furnishing such
bond that in the event petitioner fails to complete the study or discontinue the
study or fails to resume duty or otherwise quitting service without returning to
duty after expiry of said study leave for the period of three years the petitioner
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would forthwith pay to the BCKV on demand the sum which is equivalent to
leave salary, allowances and other financial benefits, spent on him for
permitting the petitioner to undergo such study together with interest to be
calculated as per existing norms.
It appears from the present writ petition that the petitioner resumed his
duty at Krishi Vigyan Kendra, Kalimpong, (Pedong) on 4th August, 2003 where
he was deputed and subsequently on being released from deputation by the
UBKV on and from 5th February, 2004 he joined at Regional Research Sub-
station of BCKV at Raghunathpur on 6th February, 2004. Subsequently the
petitioner applied for the post as Senior Scientist (Animal Reproduction) in
ICAR in 2006 and on being selected he was appointed as Senior Scientist in
ICAR. The petitioner was released from BCKV with effect from 18 th August,
2006 and joined the post in ICAR on 21 st August, 2006.
From the aforesaid facts relating to the service of the petitioner it
appears that after completing his Ph.D. he worked in BCKV from 4 th August,
2003 to 18th August, 2006.
It has been pointed out on behalf of the petitioner that vide document
generated on behalf of BCKV dated 11th July, 2006 it was certified that the
petitioner had no dues outstanding in connection with his service which he
rendered in BCKV. Similar documents were issued by the Assistant Librarian &
In-charge as well as University Engineer (Acting) Works Department, BCKV
dated 19th July, 2006 and 25th July, 2006 certifying "no dues" in favour of the
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petitioner. On being permitted by the BCKV authorities petitioner on lien of five
years joined the post of Senior Scientist in ICAR on 21 st August, 2006.
After completion of lien period of five years petitioner requested the Vice
Chancellor of BCKV vide letter dated 1st September, 2011 for acceptance of his
resignation finally. Based on such request it has been contended on behalf of
the petitioner that his resignation was accepted and he is performing his job in
the post of Senior Scientist under ICAR and subsequently as Principal Scientist
till date. Thereafter, vide letter dated 7th August, 2014 petitioner requested the
Registrar of BCKV to transfer his service book and other service related
documents to ICAR and also requested for finalisation of leave for the period
from 1st August, 2002 to 31st July, 2003 which he had to avail being the third
year of his Ph.D. course in order to complete the said course as the petitioner
was first intimated vide letter dated 20th /23rd June, 2014 by the Registrar that
the leave for the said period from 1st August, 2002 to 31st July, 2003 was not
sanctioned at the relevant period of time. It has been submitted on behalf of
the petitioner that letter dated 20th /23rd June, 2014 was the first letter
through which he came to know for the first time that the study leave for the
third year was not sanctioned.
On being requested by the petitioner to sanction the study leave as well
as to forward the service related documents to ICAR the Registrar (Acting) of
BCKV issued the impugned order dated 23rd June 2015 asking the petitioner to
pay the amount as stated in the said impugned order in order to perform his
obligation in connection with the bond which he furnished on 11 th May, 2001
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and subject to performing his obligation attached to such bond the necessary
steps to be taken for sanction of his leave relating to third year of his study and
the necessary documents would be certified and forwarded to ICAR. Being
aggrieved by such decision of the Registrar (Acting) of the BCKV the present
writ petition has been preferred questioning the act of insistence on the part of
the BCKV to perform his obligation based on such bond.
Mr. Chatterjee, learned counsel representing the petitioner has argued
that at this belated stage the bond which he executed on 11 th May, 2001
cannot be insisted to be acted upon paying the amount to the university as
indicated in the impugned order dated 23rd June, 2015 since the BCKV had
lost its opportunity to ask for performing the petitioner's obligation based on
such bond first in the year 2006 when petitioner was released on issuance of
"no due" certificate facilitating him to join the post of Senior Scientist in ICAR
and subsequently in 2011 when resignation of the petitioner was accepted with
effect from 19th August, 2006 vide letter dated 22nd September, 2011 issued by
the Registrar. According to the petitioner, BCKV finally lost opportunity to
insist upon him to perform his obligation attached to the bond after acceptance
of resignation by the Registrar vide letter dated 22 nd September, 2011. It has
been submitted that letter dated 7th August, 2014 was submitted for
forwarding the service related document to ICAR and to settle the issue relating
to sanction of leave for the period from 1 st August, 2002 to 31st July, 2003 and
it was not the correct occasion so far as the BCKV is concerned to insist upon
the petitioner to perform his obligation relating to such bond.
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There is another limb of submission which has been advanced on
behalf of the petitioner that before releasing the petitioner on 27 th July, 2006
which resulted in his joining as Senior Scientist in ICAR if he would have been
intimated that it would be required to pay the sum as per bond which he
furnished in 2001 in that event petitioner could have taken a decision whether
he would continue his service under BCKV or to join the post of Senior
Scientist under ICAR.
In support of the contention petitioner has relied upon following
judgments:
i) (2008) 5 SCC 176; Para 42 (Karnataka State Financial Corporation
-vs- N.Narasimahaiah & Ors.) ;
ii) (1969) 3 SCC 445 ; Para 5 (Jagad Bandhu Chatterjee -vs-
Smt.Nilima Rani & Ors.).
Ms. Majumder, learned advocate representing BCKV in order to defend
the decision of the Registrar (Acting) of BCKV has drawn the attention of this
Court to the relevant provisions of University Statute. According to the BCKV,
the University Statute prescribes five years during which petitioner has to
remain in service after acquiring higher qualification on being sanctioned study
leave and in the event of failure to perform the duty for the said period of five
years the petitioner is required to pay the said bond amount as it has been
furnished in the present case on 11th May, 2001. In addition thereto, it has
also been pointed out on behalf of the BCKV that the requirement of rendering
service for the period of five years after the study leave stands corroborated on
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consideration of the contents of the said bond dated 11 th May, 2001 furnished
by the petitioner wherein it has been undertaken that the petitioner would
render five years service on return from leave. Therefore, there is no flaw
according to Ms. Majumder in the decision of the Registrar (Acting) of BCKV as
contained in the impugned order dated 23 rd June, 2015 and petitioner is
required to pay the sum as calculated by the BCKV along with interest since he
failed to perform his duty during the period of five years after he resumed his
duty as Lecturer (Res) on 4th August, 2003.
Mr. Datta, learned Additional Government Pleader represents the State
respondents and has submitted that petitioner is required to perform his
obligation in connection with the bond which he furnished on 11 th May, 2001
on the demand made by the BCKV as emanates from the impugned order dated
23rd June, 2015. According to the State respondents as petitioner furnished a
bond it is immaterial when the demand has been lodged by the BCKV and
since such demand is made by the BCKV petitioner is under the obligation to
pay the sum as per his undertaking which he had made while furnishing the
bond.
In consideration of the submissions made by the learned advocates
representing the parties and on chronological analysis of the facts as narrated
hereinabove it appears that the petitioner resumed his duty as Lecturer (Res)
on 4th August, 2003 and continued his service under BCKV up to 18 th August,
2006. On being selected to be appointed in the post of Senior Scientist under
ICAR he approached the concerned Vice Chancellor of the BCKV vide letter
dated 27th July, 2006 requesting him to condone the bond and release him in
order to join his new post under ICAR. Such letter of the petitioner is at page
57 of the writ petition wherefrom it appears that the then Vice Chancellor by
making endorsement on the said letter released him on lien as per BCKV
Statute. Petitioner ultimately based on such permission of the Vice Chancellor
was released and joined the post of Senior Scientist under ICAR.
On perusal of such letter dated 27th July, 2006 containing the endorsement
of the Vice Chancellor it does not appear that there was any specific or implied
insistence on the part of the BCKV asking the petitioner to perform his
obligation relating to the bond which he furnished in 2001 upon making
payment in favour of the University. Accordingly, it appears to this Court that
petitioner was under the impression at the time of his release from BCKV in
2006 that there was no necessity to pay the bond amount which facilitated him
to take decision to join the post of Senior Scientist in ICAR. It has been
correctly submitted on behalf of the petitioner that had there been insistence
on the part of the BCKV to perform his obligation in connection with the said
bond then he could have taken decision in 2006 not to join the post of Senior
Scientist in ICAR in consideration of such demand of BCKV based on said
bond.
Subsequently, it appears that since the petitioner was on lien for the
period of five years and on expiry of the said lien period petitioner's resignation
with effect from 19th August, 2006 was accepted by the concerned authority of
BCKV vide memo dated 22nd September, 2011. There was scope left open to the
BCKV to again insist upon the petitioner to pay the bond amount before
acceptance of his resignation on expiry of lien period but the University
Authority thought it fit not to insist on performing his obligation relating to the
bond.
Therefore, according to the appreciation of the facts related to the
present case it appears that the BCKV authority had always decided not to
insist the petitioner to pay the bond amount, the first occasion was in 2006
while petitioner was released and lastly on 22 nd September, 2011 when the
resignation of the petitioner was accepted with effect from 19 th August, 2006.
Such stand of the BCKV not to insist upon the petitioner to pay the bond
amount leads to waiver of right to make further insistence on the petitioner for
depositing of the bond amount. Therefore when the petitioner vide letter dated
7th August, 2014 approached the concerned authority of the BCKV to settle the
issue relating to his leave for the period from 1 st August, 2002 to 31st July,
2003 and forward his service related document including the service book of
the petitioner the BCKV ought not to have taken such decision as contained in
the impugned order dated 23rd June, 2015 asking the petitioner to pay the
bond amount in view of waiver of right to take steps based on the bond
furnished by the petitioner in 2001 that too after the resignation of the
petitioner was accepted with effect from 19 th August, 2006.
In this regard reliance has been placed on Jagad Bandhu Chatterjee
(supra) wherein the Hon'ble Apex Court in paragraph 5 has succinctly while
interpreting Section 63 of the Indian Contract Act decided that it is open to the
promisee to dispense with or remit, wholly or in part, the performance of the
promise made to the promisee, may accept instead of it any satisfaction which
he thinks fit. Borrowing inspiration from such interpretation made by the
Hon'ble Apex Court in paragraph 5 of Jagad Bandhu Chatterjee (Supra) this
Court can safely conclude that acceptance of resignation of the petitioner by
the concerned authority of BCKV with effect from 19 th August, 2006 on expiry
of lien period results in waiver of right of the BCKV to insist upon the petitioner
to perform his obligation attached to the bond which he furnished on 11 th May,
2001.
In view of the above discussion, the impugned order dated 23 rd June,
2015 issued by the Registrar (Acting) BCKV stands set aside and the concerned
authority of BCKV is directed to regularise the study leave for the period from
1st August, 2002 to 31st July, 2003 within a period of eight weeks from the date
of communication of this order and on regularization of such study leave the
BCKV is further directed to forward the service related documents of the
petitioner including service book to ICAR within four weeks thereafter.
If the petitioner is entitled to receive any other financial benefits it will be
open to the petitioner to make a representation to the concerned authority of
the BCKV with 30 days from date and on receipt of such representation the
BCKV authority shall take a decision in accordance with law within a period of
eight weeks thereafter.
With the aforesaid directions the writ petition stands disposed of.
However, there shall be no order as to costs.
Urgent photostat certified copy of the order, if applied for, be given to the
parties, upon usual undertakings.
(Saugata Bhattacharyya, J.)
