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2016 DIGILAW 146 (CAL)

Subhash Chandra Das v. State of West Bengal

2016-02-09

DEBASISH KAR GUPTA, MD.MUMTAZ KHAN

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JUDGMENT : None appears on behalf of the respondent Nos.6 and 7 when the matter is called on. No accommodation is prayed for. This appeal is directed against an order dated November 26, 2013 passed in W.P. No.8649 (W) of 2012. By virtue of the order impugned the writ application was disposed of with a direction upon the respondent authority to release provisional pension in favour of the writ petitioner until the disciplinary proceeding was over. Though there was a direction for exchanging affidavits in the impugned order, it was removed subsequently by an order dated April 11, 2014. Having heard the learned Counsel appearing for the respective parties as also after considering the facts and circumstances of this case, we find that the above writ application was filed with the following prayers: “a. A writ in the nature of Mandamus, commanding the Respondents forthwith cancel and/or withdraw and/or reverse the proceeding initiated against the petitioner vide Memo dated 23.10.2010 and also to pay the petitioner all retirement benefits with interest at market rate; b. A writ in the nature of Certiorari directing the respondents to transmit and produce all records relating to disciplinary enquiry started against the petitioner vide Memo No.21/04 dt.28.06.04 and non disposal of the same as per order passed by this Hon'ble Court and all records relating to withholding the retirement benefit so that conscionable justice may therein be administered in quashing the same; c. Rule Nisi in terms of prayers (a), (b) and (c) above; d. An order of injunction restraining the respondents their agents servants and successor in office from proceeding in any manner pursuant to the disciplinary enquiry initiated against the petitioner vide Memo. No.21/04 dt. 28.06.2004 and further restraining the said respondents not to pass any order in connection with such enquiry; e. Ad interim order in terms of prayer (d) above; f. Any further order and/or orders, and/or writ as to Your Lordship may seem fit and proper.” After considering the aforesaid prayers, we find that the main prayer of the above writ application was to cancel and/or withdraw and/or reverse the proceeding initiated against the appellant as per Memorandum dated October 23, 2010. After considering the order impugned, we find that the above writ application was disposed of without considering the above prayer of the petitioner. In view of the above, the impugned order is quashed and set aside. After considering the order impugned, we find that the above writ application was disposed of without considering the above prayer of the petitioner. In view of the above, the impugned order is quashed and set aside. Since a considerable period has already elapsed, let there be a direction to file affidavit-in-opposition by the respondents in the writ application within a period of three weeks; reply thereto, if any, be filed within one week thereafter. Notwithstanding failure on the party of any of the parties to exchange affidavits in terms of the above direction the writ application will be treated as ready for hearing with liberty to the parties to mention the same before the appropriate Bench for expeditious hearing. In the event the matter is mentioned before the appropriate Court, the learned Single Judge concerned will hear out the matter expeditiously. Our attention has been drawn by Mr. Tapan Kumar Mukherjee, learned Additional Government Pleader, High Court, Calcutta towards the provision of sub-paragraph (5) of Paragraph 19 of the Pension Scheme for teachers and non-teaching staff which provides for payment of provisional pension to a retired teaching or non-teaching staff of a non-Government Aided Educational Institution till disposal of the disciplinary proceeding pending against him at the time of his retirement on attaining the age of compulsory retirement or otherwise which is clarified by a Government Order issued under Memo No.88/SE(B)/EES/OIB/IM-9/98 dated May 26, 1998. Upon prima facie consideration of the facts and circumstances of this case, we find that the above provisional pension was granted to the appellant initially but was stopped from the month of October, 2010. We disapprove this conduct of the respondent authority taking into consideration the financial commitment of a retired teacher of a Non-Government Aided Educational Institution towards his dependents. Therefore, the appellant deserves interim relief during the pendency of the writ application. The respondent No.3 is directed to release the arrear provisional pension of the petitioner forthwith as also to continue with the payment of such provisional pension without prejudice to the rights and contentions of the parties in the writ application. The other respondent authorities including the respondent Nos.6, 7 and 9 shall discharge their respective functions to ensure compliance of this direction for release of the provisional pension of the appellant. The other respondent authorities including the respondent Nos.6, 7 and 9 shall discharge their respective functions to ensure compliance of this direction for release of the provisional pension of the appellant. The salary and other benefits of the respondent No.3 arising out of his service in the office of the District Inspector of Schools (SE), Murshidabad shall be stopped till compliance of the aforesaid direction for release of the provisional pension of the appellant. This appeal is, thus, disposed of. There will be, however, no order as to costs. Urgent photostat certified copy of this order be supplied to the parties, if applied for, subject to compliance with all necessary formalities.