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Bhujagendra Bhusan Banerjee Vs. Dist. Board of 24-parganas - Court Judgment

LegalCrystal Citation
SubjectService
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 1090 of 1946
Judge
Reported inAIR1950Cal366
ActsBengal Service Rules - Rule 46; ; Bengal Local Self-Government Act, 1885 - Section 35A; ; Provident Fund Rules - Rule 5A
AppellantBhujagendra Bhusan Banerjee
RespondentDist. Board of 24-parganas
Appellant AdvocateC.S. Sen and ; Kamjit Mookerjee, Advs.
Respondent AdvocatePurnendu Sekhar Bose, Adv.
DispositionAppeal dismissed
Cases ReferredDistrict Board of Khulna v. Jogesh Chandra Basu
Excerpt:
- .....rise to the present litigation are briefly as follows.2. the plaintiff was an employee under the district board of the 24-parganas who are the defendants in this suit. he joined the service of the district board on 1st june 1915. on 1st january 1920 a time scale for clerks was introduced, the time scale being rs. 45/3/75 (efficiency bar) 21/2-100. on 1st january 1922, the plaintiff was allowed to draw the pay of rs. 66 and in june 1924 his pay became rs. 72. he continued to draw the same say till june 1928, when he was transferred to basirhat. from 1st august 1928 he drew pay at rs. 82-8-0. from 1st june 1980 he drew pay at rs. 87-8-0 but the amount was reduced by rs. 2-8-0 with effect from 1st july 1930. from 1st july 1930 to 23rd april 1940 when he retired from service he continued.....
Judgment:

Guha, J.

1. This appeal by the plaintiff arises out of a suit for recovery of arrears of increased pay amounting to Rs. 1327-8-0 and for additional provident fund dues of Rs. 1250. The facts which gave rise to the present litigation are briefly as follows.

2. The plaintiff was an employee under the District Board of the 24-parganas who are the defendants in this suit. He joined the service of the District Board on 1st June 1915. On 1st January 1920 a time scale for clerks was introduced, the time scale being Rs. 45/3/75 (efficiency bar) 21/2-100. On 1st January 1922, the plaintiff was allowed to draw the pay of Rs. 66 and in June 1924 his pay became Rs. 72. He continued to draw the same say till June 1928, when he was transferred to Basirhat. From 1st August 1928 he drew pay at Rs. 82-8-0. From 1st June 1980 he drew pay at Rs. 87-8-0 but the amount was reduced by Rs. 2-8-0 with effect from 1st July 1930. From 1st July 1930 to 23rd April 1940 when he retired from service he continued to draw pay at the rate of Rs. 85 without having any increment during this period of about ten years. The plaintiff's grievance was twofold. He claimed that some arrears in pay were due to him under the rules and secondly, he claimed that though by a resolution of the District Board on 22nd May 1940 confirmed on 19th June 1940 he was entitled to additional provident fund money, no such sum was paid to him till the institution of the suit which was filed on 7th May 1943. The defence of the District Board was briefly to the effect that the plaintiff was not entitled to any arrears of pay as he had not crossed the efficiency bar. As regards the claim in respect of the provident fund, the defence inter alia was that the claim was premature. On both the points the lower Courts have found in favour of the defendant and dismissed the plaintiff's suit accordingly.

3. It is urged on behalf of the appellant that the decision of the Courts below on both the above points is erroneous.

4. We propose to take up the first point about the plaintiff's right to recover the arrears of increment of pay as claimed by him. It will be noticed from the time scale mentioned above that efficiency bar is reached at the stage of Rs. 75. It has been held by the Courts below upholding the contention of the defendant District Board that in the circumstances of the present case the efficiency bar was not crossed by the plaintiff. Where an efficiency bar is prescribed in a time scale, the increment next above the bar shall not be given without specific sanction of the authority empowered to withhold increments. That is the provision contained in Fundamental Rule 25 which corresponds to Rule 46 of the Bengal Service Rules Part I. The principle contained there will govern the present case. In the present case there was no specific order by the Chairman of the District Board sanctioning the removal of the bar. It is argued however, on behalf of the appellant that though there was no such order in so many words there are circumstances which unmistakably go to show that the District Board authorities treated the case as if the bar had been removed. It is pointed out that on 1st August 1928 the plaintiff wag allowed to draw pay at a rate above RS. 75 and this, it is argued, is consistent with the position that the District Board authorities did in effect waive the bar. In this connection our attention has, however, been drawn to the series of correspondence that passed between the Chairman of the District Board, 24 Parganas, and the Chairman of the Local Board, Basirhat, various office notes regarding fixation of the pay of the appellant, and the series of orders passed by the Chairman of the District Board upon them. On a consideration of all these letters and orders it appears abundantly clear that the appellant drew pay at rates higher than Rs. 75 in spite of the directions of the Chairman of the District Board. There is a letter by the Chairman of the District Board to the Chairman of the Local Board pointing out clearly that the removal of the efficiency bar required the sanction of the Chairman of the District Board and that the appellant's pay should be drawn below the efficiency bar pending the order of the Chairman of the District Board. This position was pointed out again and again but somehow or other the directions of the Chairman of the District Board were not carried out and the appellant continued to draw pay at rates higher than what he was strictly entitled to. There is another circumstance which goes to show that the District Board did not acquiesce in the position that the appellant had been permitted to cross the efficiency bar. It is pertinent in this connection to refer to certain resolutions passed by the District Board. Reference may in this connection be made to the resolution No. 507 passed by the Board on 22nd May 1940 and to resolution No. 530 of the Board passed on 19th June 1940. Resolution No. 507 runs thus :

'Considered the prayer of Babu Bhujagendra Bhusan Banerjee, Clark, on the following points :

(5) Granted pay at the increased rate with all arrear increments due.'

The proceedings of the meeting held on 22nd, May 1940 came up for confirmation on 19th June 1940, and the relevant resolution, viz, resolution-No. 530 passed on that date shows that the word, 'granted' was a mistake for 'refused'. Reading the two resolutions together it is clear enough that the District Board did not consider that the appellant had crossed the efficiency bar and the District Board decided that the plaintiff was not entitled to arrear of increment at the increased rate. Whatever the reason, the District Board, did not choose to claim any refund from the plaintiff. That, however, was in the nature of some indulgence or sympathy shown to the plaintiff, but that circumstance cannot be turned into an argument in support of the plaintiff's claim. In our opinion there is no sufficient reason for us to interfere with the decision of the lower Courts dismissing the claim of the plaintiff for arrear increment.

5. The next point that falls for determination is whether the lower Courts were justified in rejecting the plaintiff's claim for additional provident fund money. The Courts below have held that this claim was premature. It is necessary in this connection to refer again to resolution No. 507 passed by the District Board on 22nd May 1940. Item (7) of the resolution runs as follows: 'Granted additional provident fund due to him (i. e., Bhujagendra Bhusan Banerji)'. This part of the proceeding, it may be mentioned in passing, was confirmed in the meeting held on 19th June 1940. On the strength of the resolution it has been urged on behalf of the appellant that there is absolutely no reason why after the District Board had finally passed and confirmed a resolution granting additional provident fund due to the plaintiff, he should be debarred from getting the amount. At the first sight the argument looks attractive but on further scrutiny we are of opinion that the prayer of the plaintiff for additional provident fund money cannot be allowed. Reference may, in this connection, be made to the case of District Board of Khulna v. Jogesh Chandra Basu, 47 C.W.N. 823: (A.I.R. (30) 1948 Cal. 447). The matter under consideration depends upon proper construction of Rule 5A regarding additional contribution. This rule was construed in the case referred to above and it was held by a Division Bench of this Court that the payment of additional amount of provident fund was absolutely at the discretion of the District Board and that the amount mentioned in the rule was not imperative if the District Board chose to exercise the discretion. The rule only fixed a maximum that could be paid.

6. Mr. Sen appearing for the appellant argued that by virtue of the resolution No. 507, item (7) referred to before the case cited above does not stand in his way. His argument boils down to this: By that resolution the District Board decided practically everything in regard to the additional provident fund money claimed by the plaintiff and all that remained to be done was to make a simple arithmetical calculation. We are unable, however, to construe the resolution in the way that Mr. Sen has invited us to do. By the resolution the plaintiff was granted additional provident fund due to him. The phrase 'due to him' is significant. It appears to us that by the resolution what was meant was this: The District Board decided that the plaintiff was entitled to additional provident fund but what exactly was due to him was dependent upon certain other circumstances which were not merely of ministerial calculation. The Board conceded in principle that the plaintiff would get additional provident fund money but the Board did not decide what would be the rate of additional contribution nor dit it decide for what period it would be paid. These were matters which were left undecided and these again were matters which could not be decided on mere calculation because in respect of these matters the Board would have to exercise certain discretion which, we hold, has not yet been exercised by it. This being so, we are inclined to hold that the claim of the plaintiff in regard to additional provident fund money is premature as held by the Courts below, though the grounds on which we have come to this decision are not exactly the same as those of the lower Courts.

7. The result, therefore, is that both the points urged before us on behalf of the appellant must be decided against him.

8. The appeal is accordingly dismissed with costs.

Lahiri J.

I agree.


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