High Court
Case Details
WP(C) 1793/2011 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL)
Decision
The petitioner is the wife of Late Benudhar Borah. The writ petition was filed by Benudhar Borah but during the pendency of the same he died and accordi ngly his wife has stepped into his shoes as the legal heir which was allowed by order dated 31/05/2013 passed in MC 785/2013. 2. The writ petition was filed on 11/03/2011 with the prayer for service be nefits as a Ministerial staff of the Directorate of Fisheries, Govt. of Assam in cluding pensionary benefits upon retirement from service on attaining the age of superannuation on 31.08.1987. 3. I have heard Mr. S.B. Prasad, learned counsel for the petitioner and so also Mr. S. R. Rajbongshi, learned Standing Counsel, AFDC. I have also heard Mr. M. Bhagabati, learned CGC. 4. There is no dispute that the petitioner was a Govt. servant in the Direc torate of Fisheries, Government of Assam. He was appointed on 26/07/1968 as LDA. In between he was also temporarily promoted as Translator but later on reverted again to the post of LDA. Thereafter, by order dated 4.11.1974 he was promoted to the post of UDA. By the same very order, one Shri H.N. Chakraborty was tempor arily appointed to the post of Translator. It will be pertinent to mention here that while the post of UDA carried the scale of Rs. 400-650/-, the post of Trans lator carried the scale of Rs. 325-560/-. 5. When the matter rested thus, the services of the petitioner along with 2 others, Typist and Peon of the Fishery Department were placed at the disposal o f the Assam Fisheries Development Corporation w.e.f. 01/04/1977. On completion o f 5 years of service in the Corporation, the petitioner made representation date d 07/02/1981 to the Director of Fisheries, Assam, praying for his repatriation t o the Government Department. By Annexure-5 order dated 09/08/1983, the petitione r was reverted back to the Directorate of Fisheries from the Corporation w.e.f. 11/08/1983. However, his service was not accepted by the Directorate inspite of the said order and he continued to remain with the Corporation. In the mean time , by Anneuxre-6 order dated 11/06/1997, said Shri H.N. Chakraborty was promoted to the post of Superintendent. It will be pertinent to mention here that the pet itioner also got his promotion to the post of Superintendent on 01/12/1993 in t he Corporation in the pay scale of Rs. 1475 - 3825 but on the other hand Shri H. N. Chakraborty was promoted to the post of Superintendent in 1997 in the time sc ale of Rs. 2095 -3950. 6. It appears that while serving in the Corporation, the petitioner was als o given higher scale of pay of Rs. 4960-10050/- which is equivalent to the post of Superintendent w.e.f. 01/04/2004. By order dated 28/02/2002 Shri H.N. Chakra borty was allowed to take over charge temporarily of the post of Registrar. The petitioner once again vide his representation dated 18/01/2007 requested the Dir ector of Fisheries to take his services back to the Department. However, with no result. He also made representation to the Managing Director of the Corporation to release him enabling him to join the Fishery Department. It appears that the petitioner also made representation to the Government of Assam in the Fishery D epartment for his repatriation to the Department from the Corporation vide Annex ure-8 dated 18/07/2007. By Annexure-10 communication dated 03/08/2007, the Direc tor of Fisheries, intimated the Government in the Fishery Department about the c ase of the petitioner. In the said communication, the earlier repatriation order of the petitioner issued in 1993 which did not materialize was also referred to . According to the said letter, the petitioner was already informed on 30/12/198 1 that there was no scope for his return to the Department as he was permanently transferred to AFDC. However, the aforesaid plea was denied by the petitioner b y his Annexure-11 representation dated 10/08/2007, in which it was categorically stated that he was never informed of his permanent transfer to the respondent C orporation. 7. Interestingly, by Annexure-13 communication dated 19.5.2010, the Govt. o f Assam in the Fishery Department, informed the petitioner that the relevant fil e regarding his service matter bearing No. Fish-66/2005 was missing. It was furt her intimated that the claim of the petitioner might be in the said missing file . Situated thus, the petitioner filed the instant writ petition with the prayer for treating him to the services of the Fishery Department and consequential ben efits including retirement and pensionary benefits. 8. In the counter affidavit filed by the Fishery Department, it has been st ated that the petitioner while was serving in the Corporation received all benef its admissible to an employee of the Corporation including higher scale of pay. The affidavit further states that after retirement from service, the petitioner received the gratuity sanctioned to him. His EPF amount was also released by the Corporation. However, the affidavit admits that the petitioner made representat ion for his repatriation to the Fishery Department. 9. In the counter affidavit filed by the respondent No.2, the aforesaid sta nd of the respondent No.1 has been reiterated. It has been stated that the servi ces of the petitioner was placed at the disposal of the respondent Corporation a nd that while serving in the Corporation, he was provided with higher scale of p ay equivalent to the pay of Superintendent w.e.f. 01/04/2004. 10. In the affidavit-in-reply filed by the petitioner, it has been stated th at inspite of availability of the required documents, his case for repatriation and providing benefits as the Government employee was not considered by the resp ondents. The affidavit-in-reply further states that there was communication on t he part of the respondents, as a consequence of which he was made to suffer. Amidst the aforesaid developments, the fact of the matter is that the pe 11. titioner has not been provided with the pensionary and other retirement benefits in full. Mr. M. Bhagabati, learned State Counsel by producing the copy of the o rder dated 16/08/2010 submits that the petitioner was paid Rs. 3.50 lakhs as gra tuity amount by the respondent Corporation. He further submits that the petition er has been provided with EPF benefit also. On the other hand. Learned counsel f or the petitioner Mr. S.B. Prasad submits that the petitioner being a State Govt . employee, the said condition of service could not have been altered without ta king option from him. He submits that as the basic principle of deputation, opti on said to have been asked for from the petitioner for his deputation with the r espondent Corporation. He further submits that the petitioner having not been ab sorbed in the Corporation, he always remained a Govt. employee in the Fishery De partment and consequently, the petitioner was entitled to receive all service be nefits as would have been available as a Govt. employee. 12. Countering the above argument, both Mr. S.R. Rajbongshi, learned Standin g Counsel, AFDC and Mr. M. Bhagabati, learned State Counsel submit that the peti tioner having remained with the Corporation for a fairly long period of time and also having accepted the service benefits remaining the Corporation, there was tacit approval on his part to get absorbed in the Corporation and it is immateri al as to whether any formal order of absorption has been passed or not. Upon hearing the learned counsel for the parties and also on perusal of 13. the records, this writ petition is disposed of with the following direction :- I) The Govt. of Assam in the Fishery Department shall take appropriate deci sion in the matter as to whether the petitioner remained a Govt. employee workin g in the Fishery Department irrespective of his service on deputation in the res pondent Corporation. The said authority will bear in mind that no option was obt ained from the petitioner for his service under the Corporation and that he was never absorbed in the Corporation. In the event the authority decides that the petitioner remained a Govt. II) employee working in the Fishery department, he and for that matter the present p etitioner shall be provided with all service benefits at par with his juniors wh o remained in the Fishery Department and consequential pensionary and other reti rement benefits. For the purpose if any refund is to be made by the petitioner o f the amount he has already received from the respondent Corporation, the same s hall be adjusted from the pensionary and other retirement benefits including gra tuity. III) If for any reason, it is decided that the petitioner with his tacit appr oval became an employee of the respondent Corporation, he and for that matter, t he present petitioner shall be provided with all service benefits including the monthly pension and family pension, etc. 14. Let the aforesaid exercise be carried out as expeditiously as possible b ut at any rate not later then 30/11/2013. This time limit is fixed keeping in mi nd that the deceased husband of the petitioner retired from service on 31.10.200 7 and by now the matter is almost 6(six) years old and for want of pensionary b enefits, the petitioner i.e. his wife along with his family members might have b een suffering immensely. 15. er as to costs. The writ petition is answered in the above manner. There shall be no ord