Calcutta High Court (Appellete Side)
Dhirendra Nath Mondal vs State Of West Bengal & Ors on 3 January, 2023
03.01.2023 IN THE HIGH COURT AT CALCUTTA
DL-85 CONSTITUTIONAL WRIT JURISDICTION
(PP) APPELLATE SIDE
Ct.21
WPA 3551 of 2021
Dhirendra Nath Mondal
Vs.
State of West Bengal & Ors.
Mr. Achyut Basu,
Mr. Anirban Saha,
Ms. Punam Basu,
Mr. Somen Bose,
Mr. Srikumar Chakraborty
.....for the petitioner.
Mr. Santanu Kumar Mitra,
Mr. Anand Farmania
....for the State.
Mr. Ayan Banerjee,
Ms. Debasree Dhamali,
Ms. Riya Ghosh
....for SBSTC.
The petitioner was working with the South
Bengal State Transport corporation (in short,
"SBSTC") as a Conductor. The petitioner retired from
service on August 31, 2018. Despite applying for his
terminal benefits on September 17, 2018, the
petitioner's retiral benefits have not been released till
date. The petitioner has prayed for release of the
retiral benefits as per ROPA 2009 along with refund of
an amount of Rs.50,438/- on account of house rent
allowance along with electricity bill to the tune of
Rs.1,45,000/-.
Mr. Basu, learned counsel appearing on behalf
of the petitioner submits that whether or not the
2
petitioner is staying at the quarter allotted by SBSTC
cannot be a relevant consideration for disbursement
of the retiral dues of the petitioner. The employer/
SBSTC has illegally withheld the retiral dues of the
petitioner. He refers to a document annexed at page
21 of the writ petition.
From the said document, it appears that one of
the employees of SBSTC has certified that all the
housing quarters have been surrendered by SBSTC
and the employer/SBSTC has no objection if the
meter is transferred in the name of the petitioner. He
relies on that document in support of his contention
that there is a direct tenancy between the
Government of West Bengal and the petitioner and
the employer/SBSTC does not have any authority to
refrain from paying the retiral dues of the petitioner
on the ground that the petitioner has not vacated the
quarter as the quarter is not in the possession or
control of SBSTC. He relies on an unreported
judgment of a Coordinate Bench of this High Court
(Sagarbhanga Sarkari Abashik Hitsadhani Samity
v. State of West Bengal) in support of his contention
that the respondents/employers should delink
question of payment of retiral benefits from the
question of occupation of the flats and not withhold
the payment of retiral benefits including gratuity and
leave salary.
Mr. Banerjee, learned counsel appearing on
behalf of the employer/SBSTC, the respondent nos.2
and 3 submits that Sagarbhanga Sarkari Abashik
Hitsadhani Samity (supra) is distinguishable on
facts since the employees who were initially allotted
the flats by the employer had subsequently entered
into the agreements with the State Government for
occupation of the said flats. Therefore, the privity of
contract so far as the occupation of the said flats was
concerned, existed between the State Government
and the concerned employees and not between the
employees and the companies concerned/ the
employers.
Mr. Mitra, learned counsel appearing on behalf
of the respondent nos.1 and 4 draws the attention of
this Court to the report on affidavit affirmed on
November 30, 2021. He submits that the flat
occupied by the petitioner has not been received by
the Estate Manager, Estate Directorate & Ex-Officio
Deputy Secretary/respondent no.4. He submits that
there is no independent contract as on date between
the petitioner and the State of West
Bengal/Respondent no.4 and there is no evidence to
show that the petitioner was entitled to occupy the
flat.
Having considered the rival submissions of the
parties and the materials placed on record, this Court
is of the view that a dispute exists with regard to the
fact whether or not all the quarters have surrendered
by SBSTC to the Government of West Bengal.
However, as far as the petitioner's flat/quarter is
concerned, the respondent no.4 has affirmed an
affidavit stating that the said flat has not been
handed over to the respondent no.4. No independent
contract exists between the State of West Bengal and
the petitioner. The petitioner has produced no
evidence to show that an independent agreement
exists between the State and the petitioner, which
entitles the petitioner to occupy the quarter. Since no
independent agreement exists between the State of
West Bengal and the petitioner, the case of
Sagarbhanga Sarkari Abashik Hitsadhani Samity
(supra) does not aid the case of the petitioner.
This Court cannot direct the employer to delink
the question of payment of retiral benefits from the
question of occupation of the flat. Further, the
respondent authorities can find support in the
judgment of the Hon'ble Supreme Court of India
passed in Civil Appeal Nos.2766-2767 of 2005
(Secretary, O.N.G.C. Ltd. and Ors. Vs. V. U.
Warrier) wherein it has been held that the High Court
was unjustified in exercising extra ordinary/equitable
jurisdiction in favour of an employee in directing
payment of gratuity amount despite the fact that the
employee failed to vacate the quarter even after his
retirement and despite warnings given to him.
In the light of the discussions above, this Court
holds that the issue of vacating of the quarter by the
employee/petitioner cannot be delinked from the
issue of payment of the retiral benefits payable to him
by the employer. The employer/SBSTC cannot be
directed to release all the retiral benefits as per ROPA
2009 to the petitioner without him handing over the
quarter.
In the circumstances, WPA 3551 of 2021 is
dismissed without any order as to costs.
All parties shall act on the server copies of this
order duly downloaded from the official website of
this Hon'ble Court.
Urgent photostat certified copies of this order, if
applied for, be supplied to the parties upon
compliance of all necessary formalities.
(Lapita Banerji, J.)
