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2016 DIGILAW 519 (CAL)

Rani Kisku v. State of West Bengal

2016-06-28

TAPABRATA CHAKRABORTY

body2016
JUDGMENT : Records reveal that the instant writ application was admitted on 18th May, 2016 with a direction towards exchange of affidavits. Till date no affidavit in opposition has been filed by the respondents. 2. Mr. Banerjee, learned Advocate appearing for the petitioner submits that the benefits of the West Bengal Recognised Non-Government Educational Institution Employees (Death-cum-Retirement Benefit) Scheme, 1981 (hereinafter referred to as the said pension scheme) were extended to the teachers, who had retired or expired prior to 1st April, 1981 and also to their families. In support of such contention reliance has been placed on government orders dated 1st November, 2010 and 12th July, 2011. 3. He further submits that the petitioner's husband died in harness while working as a primary teacher under the District Primary School Council, Purulia, (hereinafter referred to as the said Council) on 31st -August, 1971. Such death of the petitioner's husband was due to thunderstroke, as would be explicit from the certificate issued by the Pradhan of the concerned Gram Panchayat. Due to such abrupt demise, the petitioner's husband could not complete one year of approved service. There was a deficiency of only 26 days. 4. Drawing the attention of this Court to page 23 of the writ application Mr. Banerjee submits that the petitioner approached this Court earlier as her representation for extension of the benefits under the pension scheme was not considered and the Court by an order dated 8th May, 2014 directed the respondents to extend the benefits of the pension scheme with an observation to the effect that "the benefit of the said Scheme shall accrue in favour of the writ petitioner strictly in terms of memo No. BB3/SUSS-61/10 (part) dated 12th July, 2011, issued by the School Education Department, Government of West Bengal". 5. Drawing the attention of this Court the provisions of the said pension scheme, Mr. Banerjee submits that it would be explicit from Clause 23 that family pension would be admissible to a member of the family of an employee who dies while in service after rendering at least one year's service and that Clause 7(e)(iv) confers jurisdiction upon the competent authority of the Government to condone a deficiency of six months in qualifying service. Banerjee submits that it would be explicit from Clause 23 that family pension would be admissible to a member of the family of an employee who dies while in service after rendering at least one year's service and that Clause 7(e)(iv) confers jurisdiction upon the competent authority of the Government to condone a deficiency of six months in qualifying service. The qualifying service does not have any different meaning in case of sanction of pension and in case of sanction of family pension and that as such, the competent authority of the government ought to have exercised discretion in favour of the petitioner and ought to have condoned the deficiency of 26 days of qualifying service taking into consideration the fact that the petitioner's husband was a victim of a thunder-stroke. In support of such contention reliance has been placed upon judgments delivered in the cases of Kartick Chandra Das v. State of West Bengal & Ors.-reported in 2014(2) CLJ (Cal) 498 and Subhas Chandra Chakrabortyv. State of West Bengal reported in 2013(1) CHN (Cal) 438. 6. He further submits that the claim of the petitioner has been rejected by the Deputy Director of Pension, Provident Fund and Group Insurance, by an order dated 26th August, 2014, who has no jurisdiction to consider condonation of deficiency in qualifying service. 7. Mr. Banerjee further submits that in some matters. the respondents refused to condone deficiency of shortfall of 6 months in qualifying service on a ground that the relaxation clause is not general in nature and is restricted to employees drawing pay not exceeding Rs. 425/- per month but such ground has also been negated by this Court. In support of such contention reliance has been placed upon an unreported judgment delivered in the case of Sudhir Kumar Mallick v. The State of West Bengal & Ors. 8. Mr. All, learned Advocate, appearing for the State respondents submits that no absolute right stands conferred upon the petitioner to avail the benefits of family pension under the pension scheme. More so when, there is a deficiency in qualifying service of her husband. Prior to grant of an opportunity to the competent authority to consider the issue, question of issuance of a direction upon the respondents to sanction the said benefits in favour of the petitioner does not occasion. 9. Mr. More so when, there is a deficiency in qualifying service of her husband. Prior to grant of an opportunity to the competent authority to consider the issue, question of issuance of a direction upon the respondents to sanction the said benefits in favour of the petitioner does not occasion. 9. Mr. Mitra, learned Advocate appearing for the Council also disputes the contention of the petitioner and submits that no legal right of the petitioner has been violated warranting interference of this Court. 10. I have heard the learned Advocates appearing for the respective parties and I have considered the materials on records. In spite of a direction upon the respondents to use affidavit in opposition neither the Council nor the State respondents have complied with such direction. 11. The undisputed facts are that the petitioner's husband was a primary teacher and he died in harness on 31st August, 1971. The benefits of the pension scheme have been extended to the families of deceased teacher on the basis of government orders dated 1st November, 2010 and 12th July, 2011. The petitioner's husband expired on 31st August, 1971 due to a thunder-stroke. The deficiency in qualifying service of the deceased teacher is only of 26 days. No appeal was preferred by the respondents against the earlier order passed by this Court on 8th May, 2014. The petitioner's claim has been rejected by an order dated 26th August, 2014 issued by the Deputy Director, Pension, Provident Fund & Group Insurance. 12. The Deputy Director, Pension, Provident Fund & Group Insurance is an auditing authority and no authority has been conferred upon the said officer to consider any claim towards condonation of deficiency in qualifying service and that as such the impugned order dated 26th August, 2014 is without jurisdiction and the same is, accordingly, set aside. 13. It is customary in this jurisdiction, the writ Court would, at the first instance, ordinarily not do the thing or render the decision that the executive functionary ought to do in the circumstances. But when the executive authority is unreasonable and fails to be guided by the writ Court's previous order, it is open to the Court to do exactly what the executive authority should have reasonably done. 14. But when the executive authority is unreasonable and fails to be guided by the writ Court's previous order, it is open to the Court to do exactly what the executive authority should have reasonably done. 14. The pension scheme is a beneficial scheme and the benefits are extended as a social security measure and in the backdrop of such object and taking into consideration the fact that the death of the petitioner's husband was due to thunder-stroke, the respondents cannot refuse to condone the deficiency of 26 days in minimum qualifying service of the petitioner's husband and cannot deny the extension of the benefits of family pension in favour of the petitioner. 15. Accordingly, this Court directs the respondents to condone the deficiency of 26 days in qualifying service of the petitioner's deceased husband and to issue the pension payment order and to disburse the benefits of family pension along with all arrears in terms of the government order dated 12th July, 2011 in favour of the petitioner, within a period of eight weeks from the date of communication of this order along with a copy of the writ application. 16. With the above observations and directions this writ application is disposed of. There will be, however, no order as to costs. Photostat certified copy of this order, if applied for, be given to the parties on priority basis.