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2016 DIGILAW 816 (CAL)

Subhas Kumar Das v. State of West Bengal

2016-10-05

SUBRATA TALUKDAR

body2016
Subrata Talukdar, J.: 1. In this writ application the petitioner challenges the inaction on the part of the concerned State authorities and, primarily the District Inspector of Schools (Secondary Education), Purba Medinipur (for short DI (SE), Purba Medinipur) in failing to issue concrete orders for disbursing the pensionary benefits of the writ petitioner. 2. Sri Gautam Dey, Ld. Counsel appearing for the writ petitioner points out that the facts of this case are not long. Such facts are briefly as follows:- By initial letter of appointment dated 17th December, 1984 the petitioner was directed on behalf of the Managing Committee (for short MC) by the Secretary of the School in Issue (Alangiri Radhabinode Vidyapith) to joint substantively as an Assistant Teacher (for short AT) in the additional class unit of class VI w.e.f. 2nd January, 1985. The petitioner was directed to render service as an AT till the additional class unit is sanctioned by the Director of School Education, West Bengal. By order dated 30th June, 1995 in CO 5230(W) of 1992 an Hon’ble Single Bench directed the competent State Authority, being the respondent no.1 therein, to approve the appointment of the writ petitioner to the post of AT and release his arrear emoluments from the said date along with payment of current emoluments according to grant-in-aid rules within one month from the date of communication of the said order. 3. Thereafter by the Memo dated 4th July, 2002 in compliance with the solemn order of the Court dated 30th June, 1995 (supra), the Director of School Education, West Bengal formally approved the service of the petitioner w.e.f. 1st April, 1987, i.e. the date of the sanction of the relevant post and steps were directed to be taken for payment of salaries – both current and arrear – as admissible under the grant-in-aid rules immediately. 4. Sri Dey, Ld. Counsel submits that this Hon’ble Court for a second time in a writ petition being WP 27347 (W) of 2013, by solemn order dated 18th September, 2013 an Hon’ble Single Bench was pleased to notice that although the appointment of the petitioner was approved w.e.f. 1st April, 1987 and arrear emoluments were released up to 28th February, 2003, suddenly by the order impugned therein dated 26th December, 2012 the earlier order of the competent State Authority dated 30th November, 2012 stood withdrawn. By such withdrawal the sanction of emoluments in favour of the petitioner for the aforesaid period between 1st April, 1987 to 28th February, 2003 stood cancelled. 5. The Hon’ble Single Bench found the balance of convenience to be in favour of the petitioner and therefore stayed the impugned Memo dated 26th December, 2012 until further orders. The order of stay was however not to operate so as to prevent the competent State-respondent from releasing the held-up money in favour of the petitioner. 6. It is submitted at the hearing by Ld. Counsel for the petitioner that after long years of service the petitioner retired on 31st July, 2014. Prior to his retirement by a communication dated 11th April, 2013 submitted to the DI (SE), Purba Medinipur the Teacher-in-Charge (TIC) of the School in issue submitted the necessary papers connected to payment of pension and gratuity in favour of the petitioner. Sri Dey argues that the petitioner has completed continuous and uninterrupted service with the School in issue. 7. Relying upon the copy of the service book of the petitioner annexed to the writ petition, Sri Dey points out that from several entries in the service book the following shall be found:- first, that the petitioner was appointed on a permanent basis w.e.f. 1st April, 1987; second, the petitioner obtained benefit of 10 years of service w.e.f. 1st April, 1987; third, as on 1st April, 2003 the petitioner’ pay and special pay was fixed at Rs. 7235/- per month; fourth, from a certificate issued by the TIC of the School in issue it is clearly evident that the petitioner served between 1st April, 1987 to 31st July, 2014; fifth, the said certificate of the TIC demonstrates that the petitioner completed the period of qualifying service without any break and therefore became eligible to receive full pension and other superannuation benefits; sixth, as on April, 2005 the petitioner received the benefit of 18 years of service; and, finally the gross salary of the petitioner in terms of a certificate of the Headmaster of the School in issue dated 26th of September, 2014 stood at Rs. 44,225/- and, after deduction the net salary stood at Rs. 44,025/-on the eve of his retirement. 8. 44,225/- and, after deduction the net salary stood at Rs. 44,025/-on the eve of his retirement. 8. On the basis of the above noted cumulative evidence, Sri Dey strongly argues that there is no reason why the writ petitioner should be deprived of his pensionary benefits although he retired way back on 31st July, 2014. 9. Appearing on behalf of the State-respondents, Sri Supriyo Chattopadhyay, Ld. Senior Government Advocate takes this Court to the affidavit-in-opposition filed on behalf of the State-respondents. The case made out on behalf of the State-respondents is that the School Authority prepared the pension papers of the petitioner without taking notice of his long absence from duties. Relying on a Memo of the Director of School Education dated 24th June, 2004 addressed to the DI (SE), Purba Medinipur, it is argued on behalf of the State-respondents that since the period of absence of the petitioner is a long one, the same may be treated as an extraordinary leave. Therefore, without any special order the question of sanctioning increments for that period may not arise. Accordingly, the claim of the petitioner to his emoluments was directed to be submitted afresh. 10. Ld. Counsel for the State-respondents relies upon an Enquiry Report of the Assistant Inspector of Schools (Secondary Education) (for short AI (SE), Purba Medinipur which, inter alia, states that the petitioner put his signature in the attendance register for teachers from 3rd December, 1992 to 20th June, 1993 in the absence of the then TIC of the school. The petitioner was found to be absent from 20th January, 1993 to 23rd February, 2003 without any reason and without any intimation to the concerned authorities. 11. Since the leave for the period between 3rd December, 1992 to 23rd February, 2003 was not sanctioned by the competent authority, the Director of School Education, West Bengal vide his Memo dated 26th May, 2004 (supra) issued instructions to the effect that the long absence of the petitioner may be treated as extraordinary leave and, without a special order, the question of sanctioning increments for that period may not arise. Accordingly, the AI (SE), Purba Medinipur reported that the School Authority should take steps for sanctioning leave to the petitioner with the concurrence of the West Bengal Board of Secondary Education and, thereafter the arrear claims of the petitioner can be considered. 12. By way of response, Ld. Accordingly, the AI (SE), Purba Medinipur reported that the School Authority should take steps for sanctioning leave to the petitioner with the concurrence of the West Bengal Board of Secondary Education and, thereafter the arrear claims of the petitioner can be considered. 12. By way of response, Ld. Counsel for the petitioner, Sri Dey points out from the affidavit-in-reply of the writ petitioner to the affidavit-in-opposition of the State-respondents that the petitioner was not allowed to sign the attendance register regularly although he attended classes from 2nd January, 1985. The petitioner was accorded approval to his post w.e.f. 1st April, 1987 following the order of the Court in CO 5320(W) of 1992. Sri Dey points out that the pay structure of the petitioner has been fixed continuously at all stages on completion of both 10 and 18 years and lastly by Memo No. 941-C dated 3rd July, 2009 the petitioner was granted a pay fixation upon completion of 20 years of service. The abovenoted documents are all annexed to the affidavit-in-reply. 13. Sri Dey specifically relies upon a resolution of the Managing Committee (for short MC) dated 26th September, 2003 of the School in issue signed by the TIC on 29th September, 2003 whereby the continuous service of the petitioner without a break was recorded and the MC resolved to take appropriate steps to bring such continuous service to the notice of the competent State Authorities. 14. The further submission is made by Sri Dey that the Hon’ble Single Bench upon a prima facie consideration in WP 27347(W) of 2013 issued the order dated 18th September, 2013 staying the cancellation of the emoluments in favour of the writ petitioner. Sri Dey points out that there is therefore no question of the nonattendance of the writ petitioner for the period between 2nd December, 1992 to 24th February, 2003 and the petitioner is legally entitled to receive all pensionary benefits. 15. No appearance is put in by the School Authority inspite of Service. 16. Having heard the parties and considering the materials on record,` this Court is of the clear view that the stand made out by the State-respondents in their affidavit-in-opposition is contrary to the records of service relied upon on behalf of the writ petitioner. 15. No appearance is put in by the School Authority inspite of Service. 16. Having heard the parties and considering the materials on record,` this Court is of the clear view that the stand made out by the State-respondents in their affidavit-in-opposition is contrary to the records of service relied upon on behalf of the writ petitioner. This Court finds that the Enquiry Report of the AI (SE), Purba Medinipur is relied upon by the State-respondents in support of their allegation that the petitioner absented between 20th January, 1993 to 23rd February, 2003 from the service of the school. 17. However, such Enquiry Report is effectively contradicted by the entries in the service book of the writ petitioner which unequivocally show that the writ petitioner completed 10, 18 and then 20 years of continuous service without any break and for each of the aforesaid periods of completion of service, was granted the next higher increment/emolument. This Court also notices that the certificate issued by the TIC of the School in issue as well as the last pay certificate issued by the Headmaster and the resolution of the MC dated 26th September, 2003, all demonstrate unequivocally that the institution where the writ petitioner served has acknowledged his continuous qualifying service. No cogent contrary evidence of absence from duties has been persuasively placed before this Court on behalf of the respondents. 18. In the backdrop of the above recorded factual matrix, this Court can only hold that the non-attendance of the petitioner as alleged by the State Authorities is only speculative which may trace its genesis to a temporary situation whereby the petitioner was not allowed to record his attendance in the register although he continued to serve the School in issue. In fact the petitioner claims to be a class teacher between 2nd December, 1992 and 24th February, 2003 annexing photocopies of progress reports of students countersigned by him. 19. The further fact cannot be lost sight of that while on the one hand the State-respondents allege a long unaccounted absence from service by the petitioner specifically between 20th January, 1993 to 23rd February, 2003, it is noticed that several milestones in the service career of the petitioner were extended to him during the said period of absence alleged by the competent State Authority. 20. 20. For instance, by a Memo signed on 19th February, 2003 the Director of School Education, West Bengal wrote to the DI (SE), Purba Medinipur to extend approval to the petitioner with current and arrear admissible emoluments. The reference to current and arrear emoluments would not have accompanied the approval if the State Authority had any whiff of the petitioner’ alleged long absence. 21. Additionally, the cumulative evidence pointing towards the concurrence of both the School and the State Authority to extend 10, 18 and then 20 years of service benefits to the petitioner as well as the resolution of the MC dated 26th September, 2003 read with the certificate of qualifying service of the TIC, persuade this Court to take the view that the petitioner has sufficiently discharged the onus of disproving the State’ stand. 22. This Court therefore directs the respondent Nos. 3, 4, 5 and 6 to expeditiously take appropriate steps for disbursing all arrear and current pension and other retirement dues of the writ petitioner by not later than a period of twelve weeks from the date of communication of this order. The respondent Nos. 7 and 8, being the School Authority shall render all cooperation to the respondents Nos. 3, 4, 5 and 6 in the finalisation and ultimate disbursal of the pension and other dues. It will be open to the competent State Authority, as necessary, to seek any clarification from the writ petitioner. 23. The pension and other retirement benefits disbursed shall carry simple interest of 8% per annum from the date of its accrual on 31st July, 2014 till the date of actual payment. WP 3931(W) of 2015 and WP 27347(W) of 2013 stand accordingly disposed of. 24. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.