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2008 DIGILAW 478 (CAL)

Lila Sarangi v. State of West Benagal

2008-05-06

S.K.GUPTA, TAPEN SEN

body2008
Judgment :- (1.) BEING aggrieved by the decision dated 21. 7. 2006 of the learned Single Judge of this Court passed in W. P. No. 8184 (W) of 2006, this appeal has been preferred. (2.) THE writ petition was filed by the petitioner/appellant praying for issuance of writ of mandamus commanding the respondents to permit the petitioner to resubmit her revised option changing thereby from Contributory provident Fund to pension scheme including family pension-cum-gratuity. It is alleged by the appellant/petitioner that in the year 1972 she was appointed as an assistant teacher in the Amarshi Brindaban Chandra Girls Higher secondary School within the district of Midnapore, presently known as Purba midnapore. Subsequently in the year 1985 the State Government issued a notification under Memo. No. 136-Edn (B) dated 15. 5. 1985 for availing the opportunity of Contributory Provident Fund-cum-Gratuity. Pursuant to that notification the petitioner exercised her option with a view to avail the opportunity of Contributory Provident Fund Scheme. In relaxation of the said notification, as well as by way of partial modification of the Memo. No. 136-Edn (B) dated 31. 5. 1990, the Government was pleased to issue Memo. No. 496-Edn (S)/39/91 dated 16. 12. 1991 and by it the Government was pleased to approve that the teaching and non-teaching staff of the aided non-Government educational institution who opted for Contributory Provident fund-cum-Gratuity Scheme, were allowed to exercise revised option for pension including family pension subject to the condition that the employers share of contribution together with interest accrued thereon shall be refunded to the Government forthwith. In the said memo, it was mentioned that such option will have to be exercised within ninety days from the date of issuance of it and the fresh option, so exercised, shall be final and no further change of option will be allowed. (3.) IN terms of the said memo, as mentioned above, the last date for submission of option was 15. 3. 1992 and the petitioner submitted the option form along with the declaration form before the school authority on 2. 2. 1992. (4.) ON 29. 8. 2005 the appellant/petitioner was appointed as Teacher-in-Charge of the said school by the Managing Committee and accordingly she took charge of the school on 01. 9. 2005. 3. 1992 and the petitioner submitted the option form along with the declaration form before the school authority on 2. 2. 1992. (4.) ON 29. 8. 2005 the appellant/petitioner was appointed as Teacher-in-Charge of the said school by the Managing Committee and accordingly she took charge of the school on 01. 9. 2005. After she took charge of the Teacher-in-Charge of the school, she came to know from the inspection of the peon book and other documents of the said school that there was no record to show that option forms and declaration which were submitted by the teachers including the petitioner, were sent to the District Inspector of Schools (SE), midnapore. It is the duty of the head of the institution, being the representative of the District Inspector of Schools (SE), to send the option form to the appropriate authority for necessary approval without any delay. As soon as the petitioner came to know that option paper and declaration, as submitted by her, was not forwarded to the District Inspector of Schools (SE) for necessary approval, the petitioner submitted a representation before the ex-Teacher-in-Charge of the said school who knew as to why the school authority did not send the option paper and declaration regarding change of option, to the District Inspector of Schools (SE). In reply said ex-Teacher-in-Charge of the school informed the petitioner by his letter dated 16/11/2005 that in the month of July, 1992 due to political rivalry the office-room of the school was looted and in the process many valuable papers and documents were missing from the almirah of the school. It was further informed that the head of the institution submitted a complaint before the Officer-in-Charge of Patashpur Police Station being G. D. Entry No. 192 dated 6. 10. 1992 informing him about the incident. (5.) ON receipt of the said information, the petitioner submitted a representation before the District Inspector of Schools (SE) on 1. 3. 2006 and requested him to allow her to resubmit the option form as due to the laches on the part of the school authority, her option form and declaration were not sent to the appropriate authority for necessary approval. But the District inspector of Schools (SE) did not take any step so far as this representation is concerned, as submitted by the petitioner on 01. 3. 2006. But the District inspector of Schools (SE) did not take any step so far as this representation is concerned, as submitted by the petitioner on 01. 3. 2006. Nor any reply was given to the petitioner by the said authority for reasons best known to him. Due to this inaction on the part of the District Inspector of Schools (SE), the legal right of the petitioner to get the pensionary benefit, has been infringed. According to the petitioner, she should not suffer due to the laches on the part of the school authority in sending her option form, which was submitted within the prescribed time-limit. (6.) DUE to such inaction and negligence on the part of the authority concerned, the petitioner has filed the writ application praying for appropriate direction upon the respondent authorities, more particularly, the District inspector of Schools (SE), Purba Midnapore, to permit the petitioner to resubmit her revised option changing thereby from Contributory Provident fund Scheme to the Pension Scheme including Family Pension-cum-Gratuity, as provided in the circular issued by the Government of West bengal, Education Department. (7.) THE writ petition was contested by the respondent authorities by filing affidavit-in-opposition, wherein the claim of the petitioner was denied on material points. The respondents prayed for dismissal of the writ application. (8.) LEARNED Single Judge considered the submissions of both the sides and on perusal of the materials on record, dismissed the writ application of the petitioner. According to the learned Single Judge, the writ petitioner/ appellant was guilty of negligence and since the petition was filed at a hopelessly belated stage, so no relief could be granted in favour of the petitioner. By his impugned judgment, the learned Single Judge was pleased to dismiss the writ application. (9.) BEING aggrieved by and dissatisfied with the said impugned judgment of the learned Single Judge, this appeal has been preferred. (10.) ACCORDING to the learned Advocate for the appellant, the Trial Judge was not at all justified in refusing the prayers of the writ petitioner. Learned advocate for the appellant argued that the learned Trial Judge failed to appreciate that there was no laches on the part of the appellant in submitting the option form along with the declaration, as provided in the circular issued by the Government of West Bengal. Learned advocate for the appellant argued that the learned Trial Judge failed to appreciate that there was no laches on the part of the appellant in submitting the option form along with the declaration, as provided in the circular issued by the Government of West Bengal. It is also submitted on behalf of the appellant that the learned Trial Judge failed to consider that the option form was duly submitted within the prescribed time-limit with the school authority and said school authority failed to forward the same to the office of the District Inspector of Schools (SE). The writ petitioner has set up a claim to the effect that at the material time the office of the school was ransacked due to political rivalry and in the process many valuable documents including the papers of the appellant were lost and for that the police authority was duly informed by way of lodging a complaint. Under such circumstances, it must be said that there was no laches on the part of the writ petitioner/appellant to submit the option form within the prescribed time limit. As the said option form did not reach the authority concerned in time, for which the appellant was no way responsible, so it was obligatory on the part of the authority to allow the appellant to resubmit her option form in compliance with the circular issued by the Government of West bengal by which in fact the Government desired to provide some benefits to its employees. All these facts were ignored by the learned Single Judge while dismissing the writ petition and thereby it has caused serious prejudice to the writ petitioner. (11.) ACCORDING to the learned Advocate for the writ petitioner/appellant since the circular in question was intended to provide some benefits in favour of the employees, so the authority concerned should show a lenient attitude in implementing the provisions, as made in the said circular. He further argued that beneficiary schemes are to be interpreted in favour of the employees and it should not be curtailed due to some technical deficiencies. He further argued that beneficiary schemes are to be interpreted in favour of the employees and it should not be curtailed due to some technical deficiencies. In this respect the learned Advocate for the appellant cited decision reported in 2007 (4) CHN page 1049 (Ibrahim Mallick vs. State of West Bengal and Ors.)and an unreported decision of this Court passed by the Division Bench of this Court in APO No. 425 of 2006 arising out of W. P. No. 1307 of 2004 (State of West Bengal and Ors. vs. Biswanath Koley). By citing the decisions, the learned Advocate for the appellant argued that the learned Trial Judge was not at all justified in dismissing the writ petition and said judgment is liable to be set aside immediately in the interest of justice. (12.) LEARNED Advocate for the respondents/opposite parties, on the other hand, argued that as the appellant failed to submit the option form within the prescribed time limit, as provided in the circular itself, so no further opportunity should be given to her in order to submit the revised/fresh option form. According to him the reason, as given by the appellant/writ petitioner to the effect that she submitted the option form with the then teacher-in-Charge of the school and the same was not forwarded to the authority in question, has not been substantiated and as such, such claim was not believable. According to him, the learned Single Judge was perfectly justified in not accepting this claim of the writ petitioner and thereby dismissing the writ petition. Learned Advocate for the respondents submits that there is no merit in this appeal and as such, same should be dismissed. (13.) WE have taken into consideration the submissions made by the learned Advocates of both the sides and also considered the decisions cited at the Bar as well as the relevant notifications issued by the Government of west Bengal from time to time. The learned Advocate for the State respondent argued that as admittedly the petitioner did not exercise his option in terms of the memorandum dated 15. 05. 1985 and 16,12. 1991, she cannot be allowed to avail the benefits either under ROPA Rules of 1990 or under the ROPA Rules of 1998, after the lapse of so many years. In this respect, the learned Counsel appearing for the respondent submitted that on 16. 12. 05. 1985 and 16,12. 1991, she cannot be allowed to avail the benefits either under ROPA Rules of 1990 or under the ROPA Rules of 1998, after the lapse of so many years. In this respect, the learned Counsel appearing for the respondent submitted that on 16. 12. 1991, a circular was issued by the Government under Memo No. 496 whereby it was stated that the approved teaching and non-teaching employees of the aided Non-Government Educational Institutions who were under the Contributory Provident Fund-cum-Gratuity Scheme could switch over to the Pension Schemes including Family Pension-cum-Gratuity scheme on condition that their option would have to be exercised within nineteen days from the date of issuance thereof and no further change of the option will be entertained. It was also mentioned in the said circular that in case an employee opts for the revised option for pension, then, in that event, the employers share of contribution together with interest and additional interest shall be refunded to the Government forthwith. (14.) THE learned Counsel for the respondent argued that as admittedly no such step was taken by the petitioner in compliance with the said circular, so the learned Trial Judge was perfectly justified in not granting any relief to the writ petitioner. (15.) AS against this, the learned Advocate for the writ petitioner/appellant cited an unreported decision passed in APO No. 425 of 2006 arising out of w. P. No. 1307 of 2004 by the Division Bench of this Court. In the said decision, the learned Division Bench, while upholding the decision of the learned Single Judge observed : "the learned Single Judge after considering all the aspects involved in the cases including the fact that other persons had been given the benefits of exercising their options finally came to the conclusion in Biswanath kolyes case and correctly so, that having opted under the ROPA Rules it was not necessary for the petitioner to exercise his option under the 1991 memorandum referred to above as the same was applicable only to those teachers who had not opted under the ROPA Rules and for those who had opted to continue to serve upto 65 years of age. We uphold this view and make it applicable in the other two appeals also." (16.) IN the conclusion the learned Division Bench further observed to the effect-"for the foregoing reasons we answer the question framed at the outset by holding that notwithstanding the petitioners not having opted under the Government memorandums dated 15. 05. 1985 and 16. 12. 1991 they cannot be deprived of the benefits accruing to them under the relevant ropa Rules if they had chosen to exercise their options under those rules. " (17.) INCIDENTALLY, it may be pointed out here that the petitioner is still in service and notwithstanding the fact that she claimed that she submitted the option within the prescribed time and it was not forwarded to the appropriate authority, she subsequently submitted a representation before the authority for accepting option to come within the purview of the revised scheme of pension and gratuity. In view of the decision reported in 2007 (4)CHN page 1049 (supra) the Division Bench of this Court held to the effect:-"it is also a settled proposition of law that beneficent schemes have to be interpreted in favour of the employee for whose benefit the schemes are promulgated. Therefore, keeping in view the entire fact situation in this case, we are of the considered opinion that the option of the petitioner deserves to be accepted and the mistake in the official record deserves to be corrected. " (18.) IT appears that the fact of the writ petition as was under consideration before the said Division Bench, was almost similar with that of the case in our hand. There also the said writ petitioner was appointed as an Assistant teacher in the year 1968. Said petitioner opted for pension including family pension-cum-gratuity in May 1985. At the verge of his retirement, said petitioner came to know that his option was not recorded due to mistake committed by the school authority. The petitioner made representation before the considered authority for rectification of the mistake. However, such representation was turned down compelling the said petitioner to file the writ application before the High Court. At the verge of his retirement, said petitioner came to know that his option was not recorded due to mistake committed by the school authority. The petitioner made representation before the considered authority for rectification of the mistake. However, such representation was turned down compelling the said petitioner to file the writ application before the High Court. Reversing the decision of the learned Single Judge of that writ petition, the Division Bench, as was observed earlier, was pleased to hold that the representation as made by the writ petitioner of that writ petition should have been accepted and treated as the option for coming within the purview of the Pension Scheme. Almost same fact is before us so far as this writ petition is concerned. Here also the writ petitioner has claimed that she submitted the option in due time but the school authority failed to send the same to the appropriate authority in due course. In support of her contention, she filed the letter of the erstwhile teacher-in-Charge of the school who admitted that due to political disturbance prevailing at that time, valuable papers of the school were looted and as such the option as submitted by the petitioner could not be forwarded to the appropriate authority for taking necessary action. In this respect, it appears that it was further stated that regarding the alleged incident of looting, a G. D. was made with the concerned police station. However, the learned Single Judge was not impressed by this explanation and also by their documents as filed by the petitioner in support of her claim, while dismissing the writ application. But, it appears to us that it will be too much to disbelieve the claim of the writ petitioner without any reason whatsoever. Simply because the writ petitioner submitted the representation at a belated stage, that cannot be a ground for refusing her prayer. The petitioner, in our opinion, has been able to establish successfully that she was not aware about the non-consideration of his option by the appropriate authority prior to the year 2006. Certainly, the learned Trial Judge is entitled to draw an adverse presumption against this claim of the petitioner because of the fact that it was unbelievable that the petitioner could not know about this position although regular deductions were made from her salary towards contributory provident Fund. Certainly, the learned Trial Judge is entitled to draw an adverse presumption against this claim of the petitioner because of the fact that it was unbelievable that the petitioner could not know about this position although regular deductions were made from her salary towards contributory provident Fund. Be that as it may, simply for that reason it cannot be said that the prayer so made by the writ petitioner before the Writ Court should be rejected. After all, the function of the Writ Court is to do equity amongst the parties and in case there is no intentional larches on the part of the writ petitioner, then there cannot be any bar in granting relief in favour of a writ petitioner. After all, we must not forget that the circulars were issued in order to give benefit to the employees and it was not the intention of the government to punish an employee for any laches, due to some technical reasons. In this respect, the decision of the Honble Apex Court as passed in the case of Bijali Bhattacharyay vs. State of West Bengal and Ors., in C. A. No. 5061 of 2004 arising out of SLP (C) No. 4928 of 2003 dated 06. 08. 2004 which has been quoted in the decision reported in 2007 (4) CHN page 1049 (supra) is very much relevant. The fact in the said decision, as was before the Honble apex Court, was that the petitioner claimed therein that due to his illness, she could not exercise the option within the due date. Although, this claim was not strictly proved, still the Honble Apex Court was pleased to observe to the effect-"it appears that the appellant did not exercise her option for Pension scheme before the due date as she was not keeping well and the authorities were not justified in not giving a further opportunity to exercise her option. The appellant retired only in the year 2000 and several months before the date of retirement she filed her option. Hence, we allow this appeal and direct that she be permitted to opt for Pension scheme in view of the peculiar facts and circumstances of the case. " (19.) SO far as the case in our hand is concerned, it appears that the fact is almost similar with that of the fact which was there before the Honble apex Court. Hence, we allow this appeal and direct that she be permitted to opt for Pension scheme in view of the peculiar facts and circumstances of the case. " (19.) SO far as the case in our hand is concerned, it appears that the fact is almost similar with that of the fact which was there before the Honble apex Court. We have already pointed out that the petitioner/appellant is still in service and she submitted a representation to the authority for allowing her to opt for the Pension Scheme. But, no action has yet been taken by the authority in this respect. Under such circumstances, we are of the opinion that the writ petitioner should be given a fresh chance to submit her option afresh for coming to the Pension Scheme notwithstanding the fact that her claim regarding submission of the earlier option with the school authority could not be established beyond doubt. We have already pointed out that the circular, in question, was issued by the Government to give benefit to its employees and under the present facts and circumstances as narrated above, we, are of opinion that it will be gross injustice if the prayer of the petitioner to allow her to come within the purview of the Pension scheme is rejected. Since the circular No. 496 -Edn. (B) dated 16. 12. 1991, it was mentioned that in case an employee opts for Pension Scheme from the contributory Provident Fund Scheme then he/she is bound to refund the employers share of contribution together with interest and additional interest to the Government "forthwith" (emphasis supplied), it may be argued that as that amount was not refunded "forthwith" so the petitioner is not entitled to get the benefit of the said circular. But, it appears from the circular No. 18 - SE (B/in -60/95 dated 05. 02. 1996) that the word "forthwith" as it appears in the circular dated 16. 12. 1991 was clarified and by this circular it was decided that the said condition of refund of the amount "forthwith" should not be followed rigidly and the employee was permitted to refund the same before the date of superannuation. This clarification as given by the Government certainly leads us to the conclusion that it was the desire of the Government to extend this benefit of Pension Scheme to all its employees notwithstanding any technical lacuna. This clarification as given by the Government certainly leads us to the conclusion that it was the desire of the Government to extend this benefit of Pension Scheme to all its employees notwithstanding any technical lacuna. As such, we think that since the writ petitioner is still in service and she wants to come within the pension Scheme, then there cannot be any reason in not allowing such prayer in view of our above discussion. We are of opinion that the learned single Judge was not at all justified in rejecting the prayer of the writ petitioner on the ground that the subsequent option, as submitted by the writ petitioner could not be accepted due to inordinate delay. To our mind, it is a fit case where the prayer, as made by the appellant/writ petitioner should be allowed subject to the condition that she must refund the amount as indicated in the circular dated 16th December, 1991. (20.) THEREFORE, from our above discussion, we are of opinion that there is merit in this appeal and as such it should be allowed and the judgment, as passed by the learned Single Judge of this Court, should be set aside. (21.) IN the result, the appeal is allowed on contest but in the facts and circumstances of the case, parties will bear their respective cost. The judgment dated 21. 07. 06 as passed by the learned Single Judge in W. P. No. 8184 (W) of 2006 is set aside. The writ petition, as filed by the appellant/ petitioner, is allowed. The respondent No. 4, the District Inspector of School (SE), Purba Medinipur is directed to permit the writ petitioner to submit her revised option changing thereby from Contributory Provident Fund to pension Scheme including Family Pension-cum-Gratuity subject to the condition that the writ petitioner will refund the employers share of contribution together with interest and additional interest in favour of the government within four months from the date of this order. Said revised option must also be submitted by the writ petitioner with the respondent no. 4 within the period of four months from the date of this judgment. The respondent No. 4 is directed to inform the writ petitioner within one month from the date of this order as to the amount which is to be refunded by the writ petitioner. 4 within the period of four months from the date of this judgment. The respondent No. 4 is directed to inform the writ petitioner within one month from the date of this order as to the amount which is to be refunded by the writ petitioner. After receipt of the information from the respondent No. 4 regarding the amount to be refunded, the writ petitioner/appellant is directed to deposit the same in favour of the Government under intimation to the respondent No. 4. If the revised option is submitted and the money is refunded, then the respondent authority is directed to accept the revised option of the writ petitioner/appellant and allow her to come within the purview of the Pension Scheme of the Government as circulated by different government orders. (22.) LET a certified photocopy of this judgment be handed over to the parties on urgent basis, if applied for. Appeal allowed.