MUNICIPAL COMMISSIONER, KOLKATA MUNICIPAL CORPORATION & ORS Vs. TAPAN KUMAR PAUL ALIAS TAPAN PAUL & ORS

JUDGEMENT

(1.) The Municipal Commissioner of Kolkata Municipal Corporation (hereafter KMC) and 3 (three) of its officers are the appellants before us, in this intracourt writ appeal. They are aggrieved by the order dated August 6, 2018, whereby a learned Judge of this Court disposed of WP 24373 (W) of 2017 presented by the respondent no.1 (hereafter the writ petitioner) with directions as follows:

(2.) The appellants have applied for stay of operation of the order impugned. While hearing the application for stay, we necessarily had to consider various issues based on the arguments advanced by the parties. We also had to obtain information from the State on a particular point, which shall be referred to at a later part of this judgment. Since we were of the view that the decision on the application for stay would leave nothing substantial for being decided in the appeal, we called upon the parties to address us on the merits of the appeal. They obliged and we now propose to dispose of the stay application as well as the appeal by this common judgment and order.

(3.) The facts as pleaded in the writ petition and the relief claimed call for being noticed first. The writ petitioner had retired from the service of KMC, while under suspension, on attaining the age of superannuation on February 29, 2016. Prior to being placed under suspension, he was posted as the Personal Assistant to the Assessor Collector (South). Despite superannuation, the writ petitioner's retiral benefits had not been released. The cause for suspension of the writ petitioner was the outcome of his involvement as an accused in connection with Bhawanipur P.S. FIR No. 206/2006 dated June 5, 2006 under sections 417/420/468/471/34 of the Indian Penal Code (hereafter the IPC) and section 13 of the Prevention of Corruption Act, 1988 (hereafter the PC Act) and detention in custody for more than 48 hours in connection with investigation of the said FIR. Suspension was ordered on July 23, 2006, with effect from May 3, 2006. The writ petitioner was, however, released on bail by an order dated June 25, 2006, after being in custody for 46 days. Since subsistence allowance was not being paid to him in accordance with the revised pay scale, the writ petitioner had the occasion to invoke the writ jurisdiction of this Court earlier in 2011. Despite disposal of such writ petition by a learned Judge by an order dated January 6, 2012 directing the Joint Municipal Commissioner, KMC to consider payment of subsistence allowance in terms of the rules, the prayer was declined because the said authority found that the writ petitioner had no "valid ground to receive subsistence allowance on the basis of revised pay scale". During the entire period the writ petitioner continued under suspension, nearly 10 years, he claimed to have received subsistence allowance of Rs.10,500/- per month, being 75% of his salary of Rs.14,999/- per month, which he used to receive in the year 2003 without any revision being effected. Pursuant to the pay revision effected in 2011, the salary of the Personal Assistant to an Assessor Collector of KMC was revised to Rs.43,440/-, yet, the writ petitioner was denied 75% of such sum without justification. While in service but under suspension, the writ petitioner further claimed to have made a series of representations seeking enhancement in the rate of subsistence allowance but in vain. Even after his retirement on February 29, 2016, the writ petitioner appealed to the concerned authorities of KMC to release pension and other retirement benefits but the same too proved abortive. In the meanwhile, however, the writ petitioner stood trial in Special Case No.9 of 2006 (arising out of the aforesaid FIR) in the Court of the Judge, 24-Parganas 1st Special Court, Alipore under sections 417/420/468/471/34 of the IPC and section 13(1)(c) read with section 13(2) of the PC Act. The judgment was delivered in connection therewith on August 25, 2017. The writ petitioner was acquitted as the prosecution failed to drive home the charge against him. Upon such acquittal, the writ petitioner approached the Mayor of the KMC as well as the appellants with a representation dated September 2, 2017. Having been greeted with silence, the writ petitioner was compelled to invoke the writ jurisdiction of this Court a second time by presenting the writ petition out of which this appeal arises. Therein, he sought for, inter alia, the following relief: