Calcutta High Court (Appellete Side)
Kanwal Manmohan vs Kolkata Port Trust & Ors on 5 December, 2022
SL
No.40
Court
No. 11
05.12.2022
FMA 2790 of 2016
G.S.Das
Kanwal Manmohan
-Vs-
Kolkata Port Trust & Ors.
Mr. Bikash Ranjan Neogi
Ms. Soma Chakrborty
Ms. Ananya Neogi
... for the Appellants
Mr. Kaool Basu
Ms. Sujata Majumdar
... for the KoPT
Party/Parties is/are represented in the order of their
name/names as printed above in the cause title.
Mr. Neogi, Learned Counsel appearing for the
appellants/writ petitioner, submits that he was served
with an order of Compulsory Retirement by his
employer/Kolkata Port Trust (for short, KoPT) in the
year 1987. The order of Compulsory Retirement
pursuant to a Disciplinary Proceeding (for short, DP)
was set aside by the Hon'ble Single Bench which was
challenged in appeal by the KoPT.
The attention of this Court is drawn by the
appellant to an interim order dated 5 th of December,
1990 passed by the Appellate Court in the appeal filed
by the KoPT against the order of the Hon'ble Single
Bench (supra). The Order dated 5th of December, 1990
at page 82 of the Informal Paper Book(s) reads as
follows:
"At the invitation of the Ld. Counsel for the
2
appellants and after hearing the Ld. Counsel
for respondent No.1 Court passes the following
order:-
Respondent No.1 will be regularly paid his
salary and allowances but he shall not join
duty till the appeal is heard and decided.
The order is passed without prejudice to the
rights and contentions of the parties.
The application is disposed of in terms of
the foregoing order."
The further attention of this Court is drawn to
the final disposal of the said appeal vide the Order of
the Hon'ble Division Bench dated 15th of December,
1997. By the said Judgment of the Hon'ble Appellate
Court, the appeal of the present appellant stood
dismissed and thereby restoring the order of
Compulsory Retirement passed by the KoPT to be
effective from the year 1987.
It is relevant to mention here that after dismissal
of the writ petition one Special Leave Petition was filed
by the appellant against the Judgement and Order of
the Hon'ble Division Bench dated 15th of December,
1997 (supra), which also stood dismissed.
It is submitted by Mr. Neogi, Learned Counsel for
the appellant, that the appellant is entitled to his
arrears of salary and other benefits for the period
during which he was allowed to serve by the interim
order of the Hon'ble Division Bench dated 5 th of
December, 1990 (supra).
The appellant submits that he served with the
KoPT under the interim order of the Hon'ble Division
Bench (supra) dated 5th of December, 1990 between
1987 and 1993 and therefore since such service was
under the order of Court, he is entitled to be paid back
his salaries for the period of such service.
Mr. Bose, Learned Counsel appearing for the
KoPT, further draws the attention of this Court to the
specific language of the interim order dated 5 th of
December, 1990. It is submitted that such interim
order was passed without prejudice to the rights and
contentions of the parties.
Learned counsel for the KoPT takes the stand
that therefore the appellant served in the position as
directed by the interim order of 5 th of December, 1990
subject to the rider that the parties shall abide by the
final position of the appeal qua the order of
Compulsory Retirement of 1987, as challenged therein.
Mr. Bose submits that with the Order of
Compulsory Retirement having been affirmed by the
Hon'ble Appellate Court by the Judgement and Order
dated 15th of December, 1997, the rights and
contentions of the parties as recorded by the interim
order stood finally determined.
Hence, the employer/KoPT was well within is
rights to take steps for final calculation of the dues
receivable by the appellant treating the date of his
Compulsory Retirement to be of the year 1987. More
so, when nothing remains to be further adjudicated on
the issue upon the dismissal of the SLP by the Hon'ble
Apex Court.
Therefore, Mr. Bose submits that the Hon'ble
Single Bench by its Judgement and Order dated 20 th
of April, 2016 in WP No. 6591(W) of 2016, which is the
order impugned in the present appeal, correctly
decided that the protection as claimed by the petitioner
in terms of the interim order dated 5 th December, 1990
no longer held good after the final disposal of the
appeal on the 15th of December, 1997 as affirmed by
the Hon'ble Apex Court.
Other points in the appeal as discussed by the
Hon'ble Single Bench vide the order impugned dated
20th of April, 2016 are however not pressed at the
hearing by Mr. Neogi.
Mr. Bose submits that the second point relating
to adjustment of occupation charges by the KoPT
against official quarters illegally occupied by the
appellant for the period 1993 to 2005, have been
correctly decided in terms of the applicable Act being
the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971.
In regard to the another aspect of the matter
pertaining to pay scale claimed by the appellant
corresponding to fixation of pensionary benefits,
Learned Counsel for the KoPT submits that such pay
scale relating to the last date of service of the appellant
as fixed in terms of the Order of Compulsory
Retirement in 1987, has also been correctly calculated
by the KoPT.
Having heard the parties and considering the
materials placed, this Court is of the view that the
interim order of the Hon'ble Appellate Court dated 5 th
of December, 1990 was unambiguous being without
prejudice to the rights and contentions of the parties
qua the dispute which pertained to the punishment of
Compulsory Retirement brought against the appellant
by his employer/the KoPT. Such order having been
upheld by the Hon'ble Division Bench and thereafter
by the Hon'ble Apex Court, the appellant cannot revisit
this issue by way of the present appeal.
This Court therefore finds no reason to disagree
with the findings of the Hon'ble Single Bench vide the
order impugned in this appeal being 20 th of April, 2016
in WP 6591(W) of 2016.
For the reasons above, FMA 2790 of 2016
stands dismissed.
All parties to act on a server copy of this order duly
obtained from the official website of the Hon'ble High Court,
Calcutta.
Urgent Photostat certified copy of this order, if
applied for, be supplied to the parties, subject to
compliance with all requisite formalities.
(Supratim Bhattacharya, J.) (Subrata Talukdar,J.)
