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2013 DIGILAW 310 (CAL)

Monoj Kumar Ghosh v. STATE OF WEST BENGAL

2013-05-17

ANINDITA ROY SARASWATI, NISHITA MHATRE

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Judgment :- Nishita Mhatre, J. 1. The challenge in this petition is to the order passed by the West Bengal Administrative Tribunal in O.A. No. 287 of 2011. The Administrative Tribunal has dismissed the application filed by the petitioner for clubbing the period spent by him on deputation with Food Corporation of India (F.C.I.) with his employment as a Sub-Inspector in the Directorate of Rationing, Government of West Bengal. 2. The undisputed facts in the present case are as follows: The petitioner was appointed as Sub-Inspector in the Directorate of Rationing, Government of West Bengal on 16th January 1965. He was sent on deputation to Food Corporation of India on 3rd April 1967 unilaterally and without his consent. The petitioner continued to work with the Food Corporation of India till he was repatriated to his parent department on 17th February 1976. The petitioner was confirmed in service in the post of Sub-Inspector on 1st June 1976. The petitioner was issued a charge-sheet on 08th July 2005 for violating Rules 26 & 34 (3)(iii) & (iv) of W.B.S.R. Part –I. The petitioner retired from service on 31 st August 2005. Thereafter a second show-cause notice was issued to him and the petitioner replied to the same. However, he was punished on 29th March 2006 by which order 100% of his pension was withdrawn. 3. Being aggrieved by that order the petitioner preferred O.A. No. 1893 of 2006 before the Administrative Tribunal. That application was disposed of on 23rd December 2008. The order of punishment was quashed and the Special Secretary was directed to consider the petitioner’s case within 12 weeks from communication of the order. 4. Despite communicating the order to the respondents on 7th January 2009 there was no response from them. The petitioner, therefore, sought information under the Right to Information Act with respect to the pension payable to him. He was informed that he was not entitled to pro-rata pension and gratuity by an order of the Principal Secretary, Food and Supplies Department dated 18th January 2011. The Principal Secretary confirmed that the petitioner was not entitled to pro-rata pension and gratuity which the Tribunal had asked him to consider in view of Rule 189(A) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971. 5. Aggrieved by that order the petitioner filed another application before the Tribunal being O.A. No. 287 of 2011. The Principal Secretary confirmed that the petitioner was not entitled to pro-rata pension and gratuity which the Tribunal had asked him to consider in view of Rule 189(A) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971. 5. Aggrieved by that order the petitioner filed another application before the Tribunal being O.A. No. 287 of 2011. The Tribunal confirmed the order of the Principal Secretary by concluding that the petitioner had not been absorbed permanently in a Public Sector Undertaking and therefore under Rule 189(A) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 he was not entitled to prorate pension. 6. The Learned Counsel for petitioner submitted that the petitioner, having worked in a temporary capacity with the State Government before being sent on deputation to F.C.I., is entitled to pension for the period that he worked with the F.C.I. The Learned Counsel urges that under the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 pension is payable to an employee who is deputed on Foreign Service. He pointed out that Foreign Service has been defined under Rule 5 (xiii) of the W.B.S.R. to mean service in which a Government employee receives his pay with the sanction of Government from any source, other than the consolidated fund of India or the consolidated fund of a State or the consolidated fund of a Union Territory. The Learned Counsel pointed out that once the petitioner was transferred to F.C.I. he received his pay with the sanction of the Government of West Bengal from a source other than the consolidated fund of the State or the consolidated fund of the Union of India. The pay was received from the coffers of the F.C.I. and, therefore, the petitioner was entitled to pension. The Learned Counsel then drew our attention to Rule 102 of the West Bengal Service Rules which stipulates that when a Government employee is in Foreign Service, contributions must be paid to Government – (i) towards the cost of his pension; and (ii) if the Foreign Service is in India, towards the cost of leave-salary. 7. The Learned Counsel, therefore, submitted that when the State Government had received contributions from F.C.I. towards the cost of his pension for the service rendered by him with the F.C.I., the State Government is duty bound to pay the pension. 7. The Learned Counsel, therefore, submitted that when the State Government had received contributions from F.C.I. towards the cost of his pension for the service rendered by him with the F.C.I., the State Government is duty bound to pay the pension. He submitted that the direction of the Tribunal to pay pro-rata pension to the petitioner must be interpreted to mean such pension as would be payable for the service rendered by the petitioner with F.C.I. He urges that the Tribunal did not mean that the pro-rata pension which is referred under Rule 189(A) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971should be paid to the petitioner. The Learned Counsel has drawn our attention to various other rules of the West Bengal Services (Death-cum-Retirement Benefit) Rules in support of his submission that a Government Servant on deputation with a public sector undertaking is entitled to pension from the State Government if the employee is repatriated to his parent department with the State Government. 8. Mr. Majumder, the Learned Advocate appearing for the State submitted that the order of the Tribunal passed in O.A. No. 1893 of 2006 directs the State to consider whether the petitioner is entitled to pro-rata pension and other retrial benefits. Pro-rata pension according to the learned counsel is payable only under Rule 189(A) of the West Bengal Services (Death-cum-Retirement Benefit) Rules and, therefore, unless the petitioner’s case falls within the ambit of that Rule he is not entitled to pro-rata pension. He pointed out that pro-rata pension is payable to a Government employee who has permanently been absorbed in service of a Corporation or a Company wholly or substantially owned or controlled by the Government. He pointed out that Rule is applicable only where there is a permanent transfer of an employee from Government service to the undertaking in the interest of public service. In all other cases the Government does not accept the liability to pay retirement benefits for the period of service rendered by the Government servant either before or during his deputation. The Learned Counsel submitted that the speaking order had been passed in compliance with the West Bengal Service Rules and West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971. The Tribunal had, therefore, rightly refused relief to the petitioner, urged the Learned Counsel. 9. The Learned Counsel submitted that the speaking order had been passed in compliance with the West Bengal Service Rules and West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971. The Tribunal had, therefore, rightly refused relief to the petitioner, urged the Learned Counsel. 9. The undisputed facts in this case are that the petitioner rendered two years of service from January 1965 to April 1967 with the State Government. He was sent on deputation from April 1967 to February 1976 to the F.C.I., unilaterally by the State Government. He was repatriated in February 1976 and was confirmed in service of the State Government in June 1976. There is no dispute that the petitioner was never absorbed permanently in the F.C.I. and continued to be on deputation from the State Government. The Tribunal, while disposing of Original Application 1893 of 2006, has held that the petitioner had rendered service for a considerable period of time and, therefore, was eligible to receive pro-rata pension even though the punishment was imposed on him. That question had not been considered by the Special Secretary. It is obvious that what the Tribunal meant was not the prorata pension which is mentioned in Rule 189(A) of West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 but that the petitioner was entitled to pension on proportionately, even though he suffered punishment on account of certain acts of misconduct. The Tribunal accepted the contention of the petitioner that there was an unusual delay on the part of the State in initiating proceedings against him despite his unauthorised absence. By way of punishment the Government had directed that 100% of his pension was permanently withdrawn. This punishment was interfered with by the Tribunal by holding that since the petitioner had rendered service with the Government for a considerably long period of time, he was entitled to pension for the period on pro-rata basis, inasmuch as for the period that he did in fact rendered service. 10. We find that the Special Secretary has misdirected himself by considering only whether pro-rata pension and gratuity is payable to the petitioner under Rule 189(A). The Special Secretary was expected to consider whether the petitioner was entitled to pension for the service rendered by him from 16th January 1965 to 11th November 1982 when he was on duty, partly with the F.C.I. on deputation and partly with the State Government. The Special Secretary was expected to consider whether the petitioner was entitled to pension for the service rendered by him from 16th January 1965 to 11th November 1982 when he was on duty, partly with the F.C.I. on deputation and partly with the State Government. The word pro-rata which has been used by the Tribunal would obviously mean that though the petitioner may not be entitled to full pension for the period that he was found to be on unauthorised absence, he would be entitled to a part of the pension on the basis of West Bengal Service Rule and West Bengal Services (Death-cum-Retirement Benefit) Rules. 11. Now the question arises whether the period spent by the petitioner on deputation can also be counted for the payment of pension. 12. The West Bengal Service Rules and West Bengal Services (Death-cum-Retirement Benefit) Rules, do not stipulate that an employee of the State Government who is sent on deputation is not entitled to pension for the period spent by him on deputation with a public sector corporation. The Rules specify that when a Government servant is sent on Foreign Service, which includes service in a public sector organization, that service has to be counted for the purpose of payment of pension. Thus the period of service rendered by the petitioner with F.C.I. must be counted for payment of pension. The petitioner would thus be entitled to such pension, proportionately for the period that he had worked. The Tribunal has modified the order of punishment from the complete denial of pension to payment of proportionate pension for the period of service rendered both with the State Government as well as F.C.I. 13. In our opinion, therefore, the interest of justice would be sub served by directing the respondents to pay the petitioner pension proportionately for the period that he had worked both on deputation and with the State Government in accordance with law. Such pension shall be disbursed to the petitioner within 8(eight) weeks from today. 14. The petition is disposed of accordingly. 15. Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates for the appearing parties upon compliance of all necessary formalities. Anindita Roy Saraswati, J. I agree.