Payment of Arrear Salary
Querist :
Anonymous
(Querist) 26 September 2010
This query is : Resolved
After retirement from the Navy, I joined in the service of a corporation as GM in 1989. I submitted resignation letter but the MD called me & asked me to continue as my unit made 30% more profit than previous yrs. So i continued without any break in service. i was confirmed in my post before completion of probation period. Next yr also, the unit made 30% more profit than previous yr.Then after 1 yr from the date of resignation, they informed me of acceptance of my resignation ltr and released me from service. I refused to comply with their order & they issued order of stand release from service.
2. I submitted Writ Petition to the High Court, rule was issued, made absolute and declared the impugned memo of my release to have been passed without any lawful authority and is of no legal effect.
3. I submitted joining letter but they submitted leave to appeal which was dismissed after hearing.
4. I submitted joining letter again but they didn't accept the same within reasonable time. Before crossing the age limit for superannuation, i filed Contempt Petition, rule was issued, heard by a Division bench of High Court, made the rule absolute in part as follows:-
a) Cotemner no. 1 was found guilty of contempt and warned, other contemners were found not guilty and acquitted.
b) As consequence of setting aside of impugned order, i am to be treated in service for the entire period of 18 years i was kept out of service by the authority.
c) Authority has been directed to pay my service benefits for 12 years within 3 months.
d) 6 yrs has been deducted from my service as the W. P. was dismissed for default and the same was restored after 6 yrs.
5. The issue of delay & latches was not agitated during hearing of restoration application & W. P. was restored unopposed from respondents though notice was served & they submitted power in time.
a) Can they raise this issue without affidavit at belated stage of hearing in Contempt proceedings?
b) If not, is the deduction of 6 yrs justified?
c) If not, what is the remedy? Should i file review or i can agitate the issue before Apex Court?
d) Can i say that they are barred by res judicata and waiver?
6} They contended that i was absent from duty and granted me extra ordinary leave without pay. H C Div. rejected their contention & declared me in service for the entire period. But still they are maintaining same argument & obtained stay for 6 wks from the chamber judge of the Appellate Division.
a) Can they get extension even after getting copy of the judgment?
b) What should be my courses of action?
7) Dear Sir.
I am a bereaved man and facing hardship with my family and a baby who is blind,dumb and lacking intelligence. PLEASE HELP US. THANKS REGARDS. MAHMUD HASAN
s.subramanian
(Expert) 26 September 2010
The issue on laches cannot be raised at this stage and they are barred by the Doctrine of constructive Res Judicata under Sec.11(4) of Civil Procedure Code.
The deduction of 6 years is perfectly justified. Do not challenge it since it is because of your delay in seeking restoration.
Do not file any review and do not go to Apex court also when you have a good decision in your favour.
Once they get copies the stay will not be extended on any ground.
You file a caveat in Apex Court so that any exparte order against you can be averted.
Do not worry. You have succeeded althrough and you shall succeed in the apex court also. God bless you and your baby.
Querist :
Anonymous
(Querist) 26 September 2010
Dear (Sir) Mr. Subramanian.
I am very much grateful for your prompt reply with wishes for my Baby.
In the matter of delay and latches, i want to clarify the matter for your review.
W. P. No. 337 was dismissed for default in 1997. My lawyer detected the matter and filed W. P. 124 in 2001 for restoration. Rule was issued. Notice served. Respondents filed power in 2001. On the day of hearing the rule was not opposed by them and the matter has been mentioned by the judge in the order.Rule was made absolute and W. P. 377 was restored to its original file. Respondents didn't file any appeal against order of restoration on the ground of delay and latches of the petitioner and didn't agitate this issue at the time of hearing of W. P. 377 and at Appellate stage. In replying to the rule of Contempt petition, they have submitted Counter Affidavits but didn't mention this issue at all. On the last last day of the hearing, when they became sure about the attitude of the court as they failed to satisfy judges on the point of (a) not considering me in service for the entire period (b) granting me extra ordinary leave without pay for more than 16 years, the ld. lawyer made a surprise submission on W. P. 124 and prayed for deduction of that period. As a petitioner in person, i was not ready to answer on the issue without going through the record where i had no access at that time but submitted that the question of delay and latches in filing W. P. No. 124 for restoration has been resolved when rule was made absolute. This court will consider only Contempt matters arising out of W. P. No. 337 and W. P. No. 124 has no access in this area. The Court asked whether they got the notice of W. P. No. 124 or not to which i couldn't answer affirmatively at that time.
My humble submission is that if they are barred by constructive res judicata, then how their prayer can be entertained and how 6 yrs can be deducted on the basis of the prayer which cannot be raised as per law? Had there been no such prayer from their side, there wouldn't have been any deduction at all.
In the original W. P. No. 337, the Court didn't deduct any service period and there was no plea from respondents as such.
Under Contempt proceedings, can it be done legally?
Respondent authority has reinstated me in service w. e. f. 19 / 11 / 2007 and prepared a bill counting my service for about 3 years and granted me extra ordinary leave (considering me absent) without pay for 16 years. The court has declared that order of granting me leave without lawful authority and void. If granting of leave is void, that means i am in service and being in service i am entitled to my salary and other attended benefits.
Thank you again for your kindness. I wish you success in every sphere of your life.
Best Regards. Mahmud Hasan
