Sm. Debashmita Dutta vs State Bank Of India & Ors
2022 Latest Caselaw 6020 Cal

29.08.2022          IN THE HIGH COURT AT CALCUTTA
   DL-5            CONSTITUTIONAL WRIT JURISDICTION
   (PP)                  APPELLATE SIDE

                          WPA 7818 of 2022

                        Sm. Debashmita Dutta
                                 Vs.
                       State Bank of India & Ors.


                  Mr. Dilip Kumar Samanta,
                  Mr. Biswapriya Samanta
                                             ....for the petitioner.

                  Mr. Subrata Kumar Sinha
                               ....for the respondent nos.1 to 5.

The petitioner is an employee of State Bank of

India (in short SBI). On 16th November, 2018, the

petitioner was transferred from Jagannath Chowk

Branch, Paschim Midnapore to Panchkhuri Branch,

also in Paschim Midnapore, where the petitioner was

to join as the Customer Assistant. The petitioner

says that she had joined Panchkhuri Branch on 3rd

December, 2018, which is not disputed by SBI.

Records reveal that the petitioner made a

representation on 17th January, 2019, which appears

at page 10 of the report filed on behalf of the

respondent nos.1 to 5. The following portion is

extracted from the said representation:-

"Sir, I am once again appealing you Sir my posting in a branch within Midnapore town. As I am in a trauma, I am unable to attend office and

requesting you to grant unlimited sick leave until my request is granted."

It is, therefor, apparent that after 16th January,

2019, the petitioner did not work at Panchkhuri

Branch or at any other branch of SBI. SBI also says

so. SBI issued a notice on 14th December, 2020

holding that the petitioner has voluntarily left the job.

The said notice appears at page 49 of the writ

petition. The petitioner challenged the said

termination by filing a writ petition, being WPA 11464

of 2020. The said writ petition was disposed of by an

order dated 19th January, 2021. It appears from the

said order that the petitioner had worked at

Panchkhuri Branch till 16th January, 2019. The

petitioner, as recorded in the said order, also claimed

to have gone to the branch on 12th November, 2020,

but was prevented from joining thereat. The petitioner

by a letter dated 10th December, 2020 which is at

pages 47-48 of the writ petition has, however, claimed

that she went to join Panchkhuri Branch on 10th

December, 2020, but was not allowed to do so by the

Branch Manager. The admitted facts, therefor, show

that the petitioner did not work between 17th

January, 2019 and 9th December, 2020. Although

the notice dated 14th December, 2020 was set aside

by the order dated 19th January, 2021, the petitioner

was permitted to join Panchkhuri Branch within 7

days from that date without allowing any back wages

for the period between 17th January, 2019 and 9th

December, 2020 or 12th November, 2020 after

quashing the notice dated 14th December, 2020. The

petitioner as appears from her own averment had

joined Panchkhuri Branch on 23rd January, 2021, as

she is asking for arrear salary up to 22nd January,

2021.

On behalf of SBI, it is stated that the petitioner

was absent in an unauthorised manner from 17th

January, 2019. The petitioner has claimed to have

gone to the Panchkhuri Branch on 10th December,

2020. Treating the assertion of the petitioner to be

correct, SBI has treated the petitioner to be absent

from duty in an unauthorised manner between 17th

January, 2020 and 10th December, 2021. Salary and

emoluments except for this period have been paid.

The salary and emoluments for this period have been

refused as the petitioner did not work for this period.

The petitioner has not been able to show even

prima facie that she was not under unauthorised

absence between 17th January, 2019 and 9th

December, 2020. No leave application or sanctioned

leave for this period is available. On the contrary, the

petitioner's representation dated 17th January, 2019

and that dated 10th December, 2020 speak otherwise.

The issue of unauthorised absence and that the

employee is not entitled to any salary for such period

on the principle of "no work no pay" has been

considered by the Hon'ble Supreme Court in the

judgment reported in (2006) 9 SCC 583 (S. C.

Saxena v. Union of India & Ors.). This concept of "no

work no pay" is often defined as dies non. In the

instant case, the petitioner has not shown anything to

have been prevented from working between 17th

January, 2019 and 10th December, 2020. Following

the ratio laid down in (2019) 7 SCC 564 [Chief

Regional Manager, United India Insurance Company

Limited vs. Siraj Uddin Khan], the petitioner is not

entitled to any salary between 17th January, 2019

and 9th December, 2020.

After considering the petitioner's case in the

perspective as aforesaid, I find that the petitioner

having not worked between 17th January, 2019 and

9th December, 2020 is not entitled to any arrears of

salary and other emoluments for the said period.

This period shall be treated in the petitioner's case as

dies non.

The petitioner will be, however, entitled to all

benefits that have accrued to her on or before 16th

January, 2019 and on and from 10th December, 2020

and shall be paid all the benefits, if not already paid,

within 30th September, 2022.

The writ petition is accordingly disposed of

without any order as to costs.

Urgent photostat certified copy of this order, if

applied for, be given to the parties, upon compliance

of necessary formalities.

(Arindam Mukherjee, J.)