Payment of salary should be mandated in light of unintentional absence from duty: Calcutta High Court

In the subject of public schools concerned with the illegal stoppage of an employee in contravention of court’s order, the State shall be responsible for the payment of compensation for the duration of the period absent. The bench comprising of Shampa Sarkar J. opined in the matter of Nityananda Bera v State of West Bengal & Ors. [W.P. No.12218 (W) of 2014], that the State should supervise the payment of wages for the period of unintentional absence.

The petitioner is aggrieved by a communication dated August 3, 2012 issued by the Commissioner of School Education, West Bengal, by which the District Inspector of Schools (S.E.), had been instructed that the petitioner should not receive any salary between August 1, 2005 to December 14, 2011 as the petitioner had not rendered his duty during the said period, due to the dispute in his date of birth as recorded in his service book with further instruction that the said period should be treated as leave without pay. This dispute arose following the ad-interim order dated July 25, 2005 which curbed the D.I.’s orders; however so he was restrained by the headmaster of the school from signing the attendance register.

The Court construed that it was not a case where the petitioner himself stayed away from work. The solenama between the parties forms a part of the decree of the civil court which had attained finality. The Court observed that, “Records reveal that the employer had undertaken that they would be bound to pay the salary of the petitioner from August 1, 2005. Thus, even if the money is provided by the state, when the challenge to the solenama in the state’s appeal did not result in their favour in the judgment of the Appeal Court, the said issue cannot be reopened and the solenama is now binding. Thus the leave of the petitioner ought to be regularized in terms of the solenama and the arrear salary should be paid accordingly

The bench referred to the decision of Shiv Nandan Mahto vs. State of Bihar & Ors ( (2013) 11 SCC 626) wherein it was held that the employee could not have been denied the benefit of back wages on the ground that he had not worked for the period when he was illegally kept out of service; he was entitled to be paid full back wages for the period he was kept out of service. The court opined that “The State respondents have acted arbitrarily and with mala fide intention in denying the payment of the salary of the petitioner and has now urged that this Court should enter into the validity of the solenama which cannot be permitted in view of the dismissal of the Title Appeal filed by the defendants/State respondents. The challenge to the solenama was not accepted by the appeal court. An order of court ought to be obeyed as it is a matter of public policy.

The court held that the school authorities shall be directed to implement the order of the civil court by sending the recommendation to the West Bengal Board of Secondary Education, “….for regularizing the period as on duty and upon such regularization, the arrear salary of the petitioner shall be disbursed by the State respondents by giving the petitioner all incremental and consequential benefits as admissible during the aforesaid period and if otherwise entitled to under the law.

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