Research › Search › Judgment

Calcutta High Court · body

2014 DIGILAW 570 (CAL)

Swapna Das v. State of West Bengal

2014-07-01

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

body2014
Judgment Re: CAN 1274 of 2014 (Sec. 5) This Mandamus Appeal was filed beyond the prescribed period of limitation. There was 19 days delay in filing the instant appeal before this court. The last date for filing this appeal expired on 23rd January, 2014. The instant appeal was filed on 11th February, 2014. The reason for the delay has been sufficiently explained by the appellant in the application for condonation of delay. Delay was caused due to illness of the appellant. The appellant could not take steps for filing this appeal within the prescribed period of limitation due to her illness. No affidavit has been filed by the respondents disputing such averments made by the petitioner/appellant regarding her illness, in this said application for condonation of delay. In view of such uncontroverted statements made by the appellant in this application for condonation of delay, we hold that the reason for the delay has been sufficiently explained by the appellant in this application. Accordingly, delay in filing the appeal is condoned. The application for condonation of delay thus, stands allowed. Let the appeal now be registered. Re: MAT 189 of 2014 Immediately after the delay in filing this appeal was condoned, the Learned advocates appearing for the parties invited us to dispose of the appeal itself, as according to them, this appeal can be decided only on the question of law involved in it. Mr. Mahata, Learned advocate appearing for the State-respondents submits that he has also received written instruction from his client which we were invited to take note of and dispose of the appeal in accordance with law. Under such circumstances, we have considered the merit of the instant appeal which is directed against an order passed by Learned Single Judge of this Court on 1st October, 2013 in W.P. No. 25139(W) of 2013. The Learned Trial Judge after taking note of the Special Bench Judgment dated 16th July, 2013 passed in the matter of District Inspector of Schools (SE), Kolkata & Anr. Vs. Abhijit Baidya & Ors. The Learned Trial Judge after taking note of the Special Bench Judgment dated 16th July, 2013 passed in the matter of District Inspector of Schools (SE), Kolkata & Anr. Vs. Abhijit Baidya & Ors. (APO 94 of 2009, G.A. No. 665 of 2013 with WP 694 of 2008 with all other 201 connected matters), disposed of the writ petition by giving liberty to the petitioner and the respondents to proceed in accordance with law in the light of the Special Bench Judgment delivered in the aforesaid case for deciding the claim for pension for her husband and her family pension, provided the petitioner’s husband is found to be similarly circumstanced Assistant Teacher of the school under reference. The legality and/or correctness of the said order is under challenge in this Mandamus Appeal at the instance of the widow of the said Assistant Teacher. The petitioner’s husband who was an Assistant Teacher of Bansda S.C. High School, District-Paschim Medinipur retired from service on superannuation with effect from 31st August, 2007. A dispute has cropped up after his retirement as to the entitlement of the said Assistant Teacher to the benefit of pension. The said dispute could not be resolved during his lifetime. He died on 26th October, 2008. Subsequently, the instant writ petition was filed by the widow of the said Assistant Teacher claiming that her husband was entitled to pension as he opted from CPF to GPF on 29th June, 1990. She thus, claims that after the death of her husband, she became entitled to family pension. It is worth mentioning here that on the basis of an order passed by this court on 15th May, 2012 in an earlier writ petition filed by the appellant/petitioner, an enquiry was held by the concerned District Inspector of Schools (SE) to ascertain as to whether the said Assistant Teacher during his lifetime exercised his option for coming over to GPF from CPF or not. After holding an enquiry, it was found that the concerned Assistant Teacher refunded the employer’s share of contribution towards his provident fund together with interest to the Government. Such refund was made by the school authority through the Treasury Challan deposited on 14th September, 2000. It was further revealed in course of such enquiry that the Government stopped paying the employer’s share of contribution from June 1990. Such refund was made by the school authority through the Treasury Challan deposited on 14th September, 2000. It was further revealed in course of such enquiry that the Government stopped paying the employer’s share of contribution from June 1990. Though a photocopy of the option form submitted by the concerned Assistant Teacher was produced by the petitioner before the concerned District Inspector of Schools (SE) but the original could not be traced out by the school authority. Under such circumstances, the concerned District Inspector of Schools (SE) after verifying the necessary records came to the conclusion that the said Assistant Teacher viz. Late Abani Das exercised his option on 29th June, 1990 for coming over to the GPF from CPF within the time limit allowed for exercising such option under memorandum dated 31st May, 1990 but the papers relating to disbursement of the pensionary benefit of the said Assistant Teacher could not be processed as no such direction was passed by this Hon’ble Court while disposing of the earlier writ petition. Considering the facts of the case as stated above, we have no hesitation to hold that the concerned Assistant Teacher exercised his option for coming over to the GPF from CPF on 29th June, 1990 within the prescribed period. He also refunded the employer’s contribution together with interest to the Government. The Government accepted such refund from the said Assistant Teacher. The Government also stopped paying the employer’s contribution towards provident fund for the said Assistant Teacher since June 1990. Since all these formalities were completed by the Assistant Teacher within the prescribed time, the Government is estopped from contending that the said Assistant Teacher is not entitled to pension for not exercising his option within the prescribed time. The Government also stopped paying the employer’s contribution towards provident fund for the said Assistant Teacher since June 1990. Since all these formalities were completed by the Assistant Teacher within the prescribed time, the Government is estopped from contending that the said Assistant Teacher is not entitled to pension for not exercising his option within the prescribed time. Under such circumstances, we direct the concerned authority to reconstruct the option form on the basis of the photocopy of the option form submitted by the said Assistant Teacher appearing at page 48 of the stay application and the school authority is directed to submit the pension papers of the said Assistant Teacher after completing the necessary formalities with the co-operation of the appellant/petitioner, to the concerned District Inspector of Schools (SE) within six weeks from the date of communication of this order and the concerned District Inspector of Schools (SE) is directed to complete his part of the exercise in this regard as early as possible so that the arrear pensionary benefit of the petitioner’s husband and the arrear family pension of the appellant/petitioner which are admissible to her as per law, are paid to the petitioner within eight weeks from the date of submission of the pension paper by the school authority to the concerned District Inspector of Schools (SE). The appeal is thus, disposed of. The impugned order is thus, modified. Since the appeal is disposed of in the manner as aforesaid, no further order need be passed on the stay application. The application for stay being CAN 1586 of 2014 is thus, deemed to be disposed of. Let the written instruction given by the concerned District Inspector of Schools (SE) to his Learned advocate-on-record which is filed in court today, be kept with the record.