- (1.) THE Court : Mr Pal appearing for the petitioner submits that the questions of fact and law involved in this WP are identical with the ones which were involved in a WP No.11853 (W) of 2012 (Sri Khudiram Ghosh v. The State of West Bengal & Ors.) that was decided by a decision dated December 3, 2012. Mr Mukherjee appearing for the company, the petitioner's former employer, and not disputing the correctness of the submissions made by Mr Pal, has, however, submitted as follows. In 2009 the company issued an order that salary arrears payable due to revision of pay would be paid on receipt of funds from the State Government. In spite of repeated requests, the State Government has not released funds. The company is a sick one. It is not in a position to pay salary arrears.
(2.) THE decision dated December 3, 2012 in Khudiram Ghosh is quoted below:- "The Court: The petitioner in this WP under art.226 of the Constitution of India dated June 11, 2012 is aggrieved by a decision of the Manager (F&A) and Company Secretary-cum-Law Officer of one the Electro-Medical and Allied Industries Ltd. dated May 24/26, 2012. The petitioner was working in the Electro-Medical and Allied Industries Ltd. (a Government of West Bengal Enterprise) as Head Driver-cum-Mechanic. He retired from the services of the Company on February 29, 2008. He was entitled to gratuity according to provisions of the Payment of Gratuity Act, 1972 and leave salary according to the rules of the Company. He was paid parts of the gratuity amount and leave salary. Considering his representations, the Manager Z(F&A) gave the impugned decision that he was paid gratuity amount and leave salary maintaining the limits mentioned in an order of the Government dated September 17, 2008. Mr. Mukherjee appearing for the State has produced the thing dated September 17, 2008 that the Manager (F&A) took as a policy decision of the Government. It is evident from the thing dated September 17, 2008 that it was neither an executive nor an administrative order of the Government. It was a letter dated September 17, 2008 of a Deputy Secretary of the department concerned of the Government to the Managing Director of the Company. It was mentioned that gratuity and leave salary should be paid according to the limits mentioned therein. The limits mentioned in the letter dated September 17, 2008 did not have any legal basis. According to the Payment of Gratuity Act, 1972 and the rules of the Company, the petitioner was entitled to a larger gratuity amount and leave salary. During pendency of this WP the Managing Director of the Company has written a letter dated December 1, 2012 to the petitioner's advocate. In his letter dated December 1, 2012 the Managing Director of the Company has stated that the Company is ready and willing to pay the unpaid parts of the gratuity amount and leave salary to which the petitioner was actually entitled. Citing sickness of the Company the Managing Director has offered to pay the amounts in eight equal monthly instalments. Mr. Pal appearing for the petitioner has left the matter to the discretion of the Court. This means that the petitioner is ready to receive the amounts in eight equal monthly instalments. Gratuity was payable according to the provisions of the Payment of Gratuity Act, 1972. The amount was to be paid within thirty days from February 29, 2008, when the petitioner retired from the services of the Company. The leave salary was to be paid immediately after his retirement. Though the Company was sick, in my opinion, it was not entitled to withhold parts of the petitioner's retirement benefits. The wrongful withholding, while benefited the Company, caused financial loss to the petitioner. In my opinion, he is entitled to interest and if 7% p.a. interest is ordered, it will be just and fair. For these reasons, I dispose of the WP ordering as follows. The Company shall pay the petitioner the unpaid parts of the gratuity amount and leave salary with 7% p.a. interest from April 1, 2008 in eight equal monthly instalments. The interest element calculated on the basis of the dates of payment shall be paid with the last instalment. Oral prayer for costs remission is allowed. No costs. Certified xerox." It is not disputed that the company accepted the decision of this Court in Khudiram Ghosh following which similar WPs filed subsequently were disposed of. In none of the previous WPs the company took the plea that in view of its 2009 order and non-receipt of funds from the State Government, it should not be ordered to pay the petitioners therein salary arrears. On the contrary, in the previous WPs the company wanted an opportunity of paying the petitioners therein in instalments. This WP and all the previous WPs are identical on facts. The company accepting the decisions given in the previous WPs ought to have given the petitioner in this WP the benefits. It just remained inactive and thus generated this unnecessary litigation. Its conduct cannot be countenanced. The retired petitioner not paid all his retirement benefits has been driven to Court for no valid reason. It is necessary to order token deterrent costs.
(3.) FOR these reasons, I dispose of the WP ordering as follows. The company shall pay the petitioner five hundred rupees costs and unpaid gratuity, leave salary, salary arrears, etc. with 7% p.a. interest from the day he ceased to be in its employment in eight equal monthly instalments. The interest element calculated on the basis of the dates of payment shall be paid with the last instalment. Certified xerox.;