Calcutta High Court (Appellete Side)
Dr. Ashoke Kr. Sharma vs Union Of India & Ors on 13 June, 2022
12
Court
No. 11 13.06.2022
G.S.Das
MAT 678 of 2022
With
CAN 1 of 2022
CAN 2 of 2022
Dr. Ashoke Kr. Sharma
-Vs-
Union of India & Ors.
Mr. Soumya Majumder
Mr. Saptarshi Roy
Mr. Arkadipta Sengupta
Ms. Kakali Das Chakrabarty ... for the Appellant
Mr. Sovan Mukherjee
... for the respondents
Party/Parties is/are represented in the order of
their name/names as printed above in the cause title.
The appellant claims restoration of his service
benefits, inclusive of salaries month by month,
claiming to be appointed as a Homoepathic doctor
under the Respondents/South Eastern Railway (SER).
The appellant submits that the Hon'ble Single
Bench fell into error by holding that no enforceable
right has accrued on the appellant for claiming
restoration of his service benefits, inclusive of salaries.
Mr. Majumder, Learned Counsel appearing for
the appellant/the writ petitioner, submits that the
Order of eviction against the appellant under the
Public Premises (Eviction of Unauthorised Occupants)
Act, 1971 (for short, the 1971 Act) issued by the
Estate Officer of the Respondents/SER, was carried in
appeal by the appellant in Misc. Appeal No. 35 of
2017. The Misc. Appeal (supra) was decided by the
Judgment and Order dated 1st of September, 2018 of
the Competent Authority being the Learned District
Judge, Paschim Medinipur by restoring to the
appellant not only the quarters from which he was
sought to be evicted by the Estate Officer, SER
invoking the provisions of the 1971 Act, but also his
service benefits, inclusive of salaries.
It is therefore submitted by Learned Counsel for
the appellant that the restoration of the quarters was
treated to be in the nature of restoration of his service
benefits, inclusive of salaries, being incidental thereto.
It is further submitted that the Judgment and
Order dated 1st September, 2018 (supra) was not
challenged before a competent Court by the
Defendants/the present Respondents/the Railways
and hence has attained finality.
Per contra, Mr. Mukherjee, Learned Counsel
appearing for the Respondents/SER, submits that
prior to filing of the writ application which was
affirmed in January, 2020, the appellant/the writ
petitioner filed a Title Suit numbered as T.S. 421 of
2015 claiming identical prayers for restoration of his
service benefits, inclusive of salaries.
It is submitted that the writ petition was filed in
January, 2020 during the period when the Title Suit
was pending.
It is also submitted that since the appellant/the
writ petitioner anticipated difficulty in the carriage of
proceedings in the writ petition during pendency of
the suit for identical reliefs, a prayer was made before
the Learned 3rd Civil Court (Junior Division), Paschim
Medinipur for withdrawal of the suit on the ground of
amicable settlement between the parties.
Learned Counsel for the Railways/SER next
refers to the Order No. 20 dated 24 th February, 2020
whereby the Learned 3rd Civil Court (Junior Division),
Paschim Medinipur was pleased to allow the prayer of
the present appellant/the writ petitioner, being the
plaintiff in Title Suit No. 421 of 2015, for withdrawal
of the suit on the ground of amicable settlement.
Learned Counsel for the Railways/SER claims
that the suit was withdrawn without notice to the
Railways/the Defendants in the suit and without
providing any details of the so-called amicable
settlement.
Mr. Mukherjee points out that the very
pendency of the writ petition as affirmed in January,
2020 would show that the cause-of-action in the suit
and subsequently repeated in the writ petition stood
far from being amicably settled. The suit was
withdrawn on February, 2020 after the writ petition
was affirmed and filed in January, 2020.
In such a scenario, it is submitted by Learned
Railway Counsel, the Hon'ble Single Bench did not err
in holding that the writ petitioner could not espouse
any enforceable right to claim a mandamus for
restoration of his service benefits, inclusive of salaries.
It is also submitted that the two issues
connected to setting aside of the eviction proceedings
and claim to his service benefits, inclusive of salaries,
although contended to be incidental to the relief
against eviction, are distinct issues and, for such
reason, the appellant/the writ petitioner filed a
separate suit being Tile Suit No. 421 of 2015 (supra)
followed by a writ petition being numbered as WPA
1788 of 2020 notwithstanding the purported
composite reliefs claimed to be granted in Misc.
Appeal No. 35 of 2017.
Having patiently heard the parties and
considering the materials placed, in the light of the
discussion above this Court is unable to extend any
interim relief to the appellant. The issues raised in
this appeal as controverted by the Respondents/SER
require closer examination both on factual and legal
aspects which also connect to the maintainability of
this appeal.
Accordingly, the prayer for interim relief stands
refused.
Although this Court is informed of the fact that
Affidavits were exchanged to the writ petition, in the
light of the arguments advanced today before this
Court as recorded above, let Affidavit-in-opposition to
the application being CAN 2 of 2022 be filed within a
period of four weeks from this date. Reply, if any
thereto, be filed within 10 days thereafter.
Liberty to mention for inclusion in the list under
the same heading "Application (Gr.-VI)" after the
period granted to exchange Affidavits is complete
strictly upon notice to each other.
Affidavit-of-Service filed in Court today be
retained with the record.
All parties to act on a server copy of this order
duly obtained from the official website of the Hon'ble
High Court, Calcutta.
(Lapita Banerji, J.) (Subrata Talukdar,J.)
