(Deceased) vs Food Corporation Of India & Ors
2022 Latest Caselaw 5873 Cal

                      In the High Court at Calcutta

                       Civil Appellate Jurisdiction

                              Appellate Side


The Hon'ble Justice Subrata Talukdar
                &
The Hon'ble Justice Lapita Banerji



                             MAT 520 of 2021

                                  With

                             CAN No.4 of 2022

           Mina Begum & Ors. (Replacing Kazi Sirajur Rahaman

                                (Deceased)

                                      Vs.

                    Food Corporation of India & Ors.



For the Appellant                 :         Mr. Animesh Mookherjee


For the Respondent Nos.1-4        :     Mr. Prabir Kumar Chaudhuri

Heard on                          :         04/07/2022


Judgment on                       :         25/08/2022

Lapita Banerji, J:- This appeal and application arises out of an Order

dated November 18, 2019 (Impugned Order) passed by an Hon'ble Single

Judge of this Court in W.P. 14356 (W) of 2014. By the Impugned Order,

the Hon'ble Single Judge held that since the Respondents/Food

Corporation of India (FCI) have confirmed the service of the writ petitioner

with effect from May 12, 1990 and consequently taken steps for pay

fixation, no further order was required to be passed in the Writ Petition. It

was further held that in the event, the writ petitioner was aggrieved by the

deemed date of confirmation, he would be at liberty to challenge the same

before the appropriate authority.

2. The admitted facts in this appeal are as follows:

(a) The writ petitioner/predecessor-in-interest of the appellants

was a casual employee of the respondent No.1/FCI since

May 24, 1983. Admittedly, he was employed on Monday to

Friday basis, without any exception. Saturdays and

Sundays were excluded from his service. The writ petitioner

would invariably receive an appointment letter on Monday

morning to continue with his employment till Friday.

(b) After 2 years of his employment, the writ petitioner made

representations to the FCI to be absorbed as a permanent

employee. Since the representations of the writ petitioner

went unheeded, he filed a Writ Petition being Civil Order No.

15956(W) of 1985 before this Hon'ble Court.

(c) An Hon'ble Single Bench of this Court by its Order dated

January 12, 1987 directed the FCI/respondents to confirm

the writ petitioner's appointment with immediate effect. Such

directions were to be complied with, within a period of 6

weeks.

(d) The said directions were passed even though the writ

petitioner was appointed on a "no-work-no-pay basis". The

Hon'ble Single Judge did not place reliance on the

declaration signed by the writ petitioner, whereby, he

accepted his appointment as strictly casual in nature and

also the rate of payment.

(e) The respondent/FCI challenged the Order dated January 12,

1987 in appeal. By an Order dated January 12, 1989

passed by a Coordinate Bench of this Hon'ble Court, the

Order of the Hon'ble Single Bench was upheld. The Learned

Counsel appearing for Food Corporation of India also

acquiesced to the suggestion made by the Co-ordinate Bench

as fair. The FCI was directed to offer employment on regular

basis as directed by the Learned Single Judge subject,

however, to the condition that if he was convicted in the

pending criminal proceedings, it would be open to the

respondents/FCI to take appropriate proceedings against

him in accordance with law.

(f) An offer of appointment was issued by the respondents/FCI

on May 5, 1989, wherein, the writ petitioner was offered the

post of a Typist. He was to be kept on probation for a period

of one year from the date of his joining i.e. May 12, 1989.

The writ petitioner accepted the said offer without demur

and started working from May 12, 1989.

(g) After accepting the said post of a Typist the writ petitioner

worked continuously till his retirement in November, 2019.

(h) The writ petitioner's wife had lodged a criminal complaint

against him under Section 498A of the Indian Penal code

and the same was registered as Case No.8 at P.S. Suri on

November 6, 1987. The said criminal case was pending

when the Judgment was passed by a Coordinate Bench on

January 12, 1989 and therefore, finds reference in the said

Order. By a Judgment dated June 5, 1998, the writ

petitioner was convicted by the Chief Judicial Magistrate and

sentenced to 2 years of rigorous imprisonment and also a

fine of Rs.2,000/- in the criminal case. The writ petitioner

was acquitted by the Hon'ble High Court at Calcutta by a

Judgment and Order dated November 15, 2006 passed in

C.R.R. No.1712 of 2001. In 2012, an S.L.P. was filed by his

wife before the Hon'ble Supreme Court of India.

(i) The Special Leave Petition, which was filed, was disposed of

by the Hon'ble Supreme Court in favour of the writ petitioner

in 2014.

(j) The contention of the FCI is that the disposal of the criminal

case was informed to the respondents/FCI on December 19,

2018 when the writ petitioner submitted his representation

for confirmation to the post of Typist. After receipt of the

said intimation of the disposal of the criminal case, the

respondents/FCI confirmed the service of the writ petitioner

with effect from May 12, 1990. The said fact will appear

from the communication dated January 4, 2019 issued by

the Deputy General Manager (Personnel) FCI. It was

however contented on behalf of the writ petitioner that after

the acquittal in 2006, the FCI was informed of the same in

2007 and a prayer for confirmation was made.

(k) The writ petitioner was superannuated from his service in

November, 2019. The entirety of contributory provident fund

(CPF), gratuity and Final Leave Encashment benefits were

handed over to him considering that his date of deemed

confirmation was May 12, 1990. The respondent/FCI also

fixed the revised pay scale in terms of H.Q.I. Circular No.

HQ-09-2019-17 dated October 11, 2019.

3. Mr. Mookherjee appearing for the writ petitioner/substituted appellants

argued that since the Hon'ble Single Bench's Order dated January

12, 1987 has been confirmed by an Hon'ble Coordinate Bench on

January 12, 1989, the writ petitioner's service should be deemed to be

confirmed from May 24, 1983 (the date on which he joined as a casual

employee and not from May 5, 1989). The writ petitioner claimed

arrears of salary based on fixation of his pay scale from May 24, 1983

and not from May 4, 1989. He claimed that under directions of this

Hon'ble Court, the writ petitioner was entitled to the same.

4. The writ petitioner made several representations through his Advocates

for fixation of pay and release of such arrears. He submitted that

representations through various Advocates on May 19, 1992, February

22, 2004, June 7, 2010 for fixation of pay, seniority and arrears of

salary from May 24, 1983 were made but went unheeded by the FCI.

5. Mr. Chaudhuri, appearing for the respondents/FCI argued that

pursuant to the direction given by this Hon'ble Court, the writ petitioner

was offered an appointment by a letter dated May 5, 1989. The writ

petitioner joined his services on May 12, 1989 without any

protest/demur. Therefore, he did not discharge regular service in the

post of Typist before May 12, 1989 and no financial benefits can be

given for any prior period. The writ petitioner after having accepted all

the retiral benefits was abusing process of law by agitating that his

employment be regularized from May, 1983, when he joined as a casual

worker, notwithstanding the fact that the same was impermissible in

law. The writ petitioner chose not to protest since 1989 when he was

offered the employment and after enjoying the benefits for several years,

came at a much delayed stage to assail the date of confirmation of the

regular employment. As such, the writ petition and consequently the

appeal were not maintainable and the appeal should be dismissed in

limine. The writ petitioner has sought to cause mischief by his

purported claim of absorption as a regular employee since 1983.

6. Having considered the rival submissions of the parties and the materials

placed on record, this Court finds:

(i) The writ petitioner was appointed as a casual employee on May

24, 1983.

(ii) The writ petitioner's employment was confirmed by an Hon'ble

Single Judge vide an Order dated January 12, 1987. The

directions were to be complied within 6 weeks from the date of

the Order. Therefore, the deemed date of confirmation of the

employment of the writ petitioner could not have been later than

February 23, 1987.

(iii) A Coordinate Bench of this Hon'ble High Court confirmed the

Order of the Hon'ble Single Bench by an Order dated January 12,

1989. The said Order of the Coordinate Bench was accepted by

the respondent/FCI. No appeal was preferred therefrom.

(iv) Therefore, the Order of the Hon'ble Single Bench, which directed

confirmation within a period of 6 weeks from the date of the

Order, attained finality. The writ petitioner's employment was

deemed to be confirmed latest by February 23, 1987.

(v) The offer of appointment dated May 5, 1989, by which the writ

petitioner was appointed and also kept in purported probation for

a period of one year, cannot be relied on by the respondent/FCI to

deny the fixation of pay, consequential seniority and arrears of

pay since February 23, 1987. Whether or not the writ petitioner

informed the respondent/FCI about his acquittal in the criminal

proceedings prior to 2018 or made any representation in that

regard, cannot stand in the way of granting benefits that the writ

petitioner was legally entitled to pursuant to the Order dated

January 12, 1987.

(vi) The writ petitioner's claim for fixation of pay, seniority and arrears

of pay from 1983, when he admittedly worked as a casual worker,

is unsustainable. The writ petitioner's right to be confirmed as a

regular employee crystalized pursuant to the Order dated January

12, 1987. The said Order was directed to be complied with within

a period of 6 weeks. No retrospective effect was given to the

employment/service of the writ petitioner by the Hon'ble Single

Bench. In the circumstances, the writ petitioner has failed to

establish any legal right for absorption/regularization since May

24, 1983.

(vii) Apart from the Affidavit-in-Opposition filed by the

respondent/FCI, the Court called for a written instructions (WI) on

behalf of the respondents /FCI.

(viii) Unfortunately, nothing much is comprehensible from the said

written instructions (WI) filed by the Assistant General Manager

(Personnel) dated 8/10th June, 2022,apart from the fact that the

writ petitioner/substituted appellants came at a belated stage

and, therefore, should be denied any relief. Since, the writ

petitioner did not discharge his regular service from January 12,

1987, it was contented that he could not be given service benefits

from that date.

(ix) No valid reason was shown by the said written instructions (WI)

as to why the offer letter was belatedly issued in May, 1989

instead of January/February, 1987. The FCI failed to give any

plausible reason/explanation as to why the writ petitioner should

be made to bear the brunt of the negligence (inadvertent or

otherwise) on the part of the FCI in failing to give the writ

petitioner the benefits, at least from February 23, 1987. The WI

merely reiterated the stand taken in the opposition and also

incorrectly stated that the benefits of the probationary period were

granted pursuant to previous litigations.

(x) The FCI admitted in the opposition affirmed on its behalf on May

11, 2022 that the writ petitioner's service was confirmed on May

12, 1989 and he was entitled to the benefits from the said date.

The Hon'ble Single Judge recorded in the Impugned Order dated

November 18, 2019 that the deemed confirmation was from May

12, 1990 as per the FCI. Neither in the opposition nor in the WI

has it been explained why despite admitting that the confirmation

was from May 12, 1989 the benefits were sought to be given to the

writ petitioner from May 12, 1990 i.e. 1 year after the admitted

date of confirmation.

7. In the light of the discussions above, this Court holds that the writ

petitioner was entitled to fixation of pay/seniority/arrears of pay at least

from February 23, 1987, if not from 6 weeks before, pursuant to the

Order dated January 12, 1987.

8. The FCI/Respondents are directed to calculate the arrears based on

notional seniority from February 23, 1987and release the arrears within

6 weeks from the date of this Order. The writ petitioner was not entitled

to fixation of pay/seniority/arrears of pay since May 24, 1983 as claimed

by him and the substituted appellants. The Impugned Order dated

November 18, 2019 is set aside to that limited extent and the appeal

being MAT 520 of 2021 along with CAN No. 4 of 2022 are partially

allowed to such extent. Pursuant to the Order Dated June 6, 2022 CAN

5 of 2022 was already allowed even though the application no. does not

find reference in the last order.

9. There shall be no order as to costs.

10. Parties shall be entitled to act on the basis of a server copy of the order

placed on the official website of the Court.

11. Urgent Xerox certified photocopies of this judgment, if applied for, be

given to the parties upon compliance of the requisite formalities.

I agree.

       (Subrata Talukdar, J.)                                (Lapita Banerji, J.)



Later:-

Learned Counsel for the F.C.I. prays for extension of time to execute the

terms of this order.

Accordingly, time is extended by three months from this date, as prayed

for.

I agree.

(Subrata Talukdar, J.)                                       (Lapita Banerji, J.)