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2017 DIGILAW 19 (CAL)

Krishnanagar Municipality v. Bikash Kumar Dutta

2017-01-05

BISWANATH SOMADDER, SANKAR ACHARYYA

body2017
JUDGMENT : Biswanath Somadder, J. 1. By consent of the parties, the appeal is treated as on day’s list and taken up for consideration along with the application for stay. 2. The appeal arises out of a judgment and order rendered by the learned Single Judge on 16th December, 2015, in W.P. 33547 (W) of 2014 (Bikash Kumar Dutta vs. The State of West Bengal & Ors.). The appellant here is Krishnanagar Municipality and its other authorities including its Chairman. 3. The primary reason for the writ petitioner in approaching the writ Court was for release of his arrear pension and interest on delayed payment of his retiral dues. 4. The learned Single Judge, as it appears from the order dated 16th December, 2015, had directed the Chairman of Krishnanagar Municipality to be present in Court in terms of its previous order dated 19th November, 2015. The learned Single Judge considered the Government Order dated 25th March, 2014 and also relevant provisions of the statute, including Rule 31 of the West Bengal Municipal (Employees Death-cum-Retirement Benefit) Rules, 2003 and section 67 of the West Bengal Municipal Act, 1993. Thereafter, during the course of delivering judgment, the learned Single Judge, on the basis of submission made by the Chairman of the concerned Municipality, who stated that he was willing to release arrear pension in favour of the writ petitioner within the time that may be fixed by the Court, proceeded to dispose of the writ petition in the following manner: “… I dispose of the writ petition by directing the petitioner to submit a statement of claim of arrear pension month-wise from the month next to that of his retirement till the period he started receiving the pension on regular basis within a period of seven days. The Municipality upon receipt of such statement, shall verify the claim of the petitioner with reference to the official record and shall intimate the petitioner their calculation within a period of seven days thereafter. The Municipality shall release the arrear pension to the petitioner in two equal installments. The first of such installment shall be paid within two weeks from the date of communicating the calculation to be made by the Municipality. The next installment shall be paid two months thereafter. The Municipality shall release the arrear pension to the petitioner in two equal installments. The first of such installment shall be paid within two weeks from the date of communicating the calculation to be made by the Municipality. The next installment shall be paid two months thereafter. Since the petitioner had retired in the year 2012 the arrear pension as admissible to him shall carry an interest at the rate of 6 per cent from the date it fell due to the actual date of payment. In case the petitioner is not satisfied with the calculation that may be made by the Municipality upon verification of records it shall be open to the petitioner to intimate the same to the Municipality in writing and the Municipality before disbursing the second installment of pension shall take the same into consideration and if necessary the Chairman shall also give a personal hearing to the petitioner. However, the first installment shall be released within the timeframe as fixed by this Court as per the calculation of the Municipality. Before I part with, my attention has been drawn to the fact that the petitioner has received gratuity on March 31, 2014. The petitioner is entitled to receive an interest on the delayed payment of gratuity from the date next to that of his retirement till the actual date of payment at the rate of 6 per cent. Such payment is to be made within six weeks from the date of communication of the order. The personal presence of the Chairman is hereby dispensed with. The writ petition is disposed of.” 5. In the present appeal preferred by Krishnanagar Municipality and others, the main thrust appears to be that the Municipality is not in a position to take further burden and/or liability for payment of interest on delayed disbursement of arrear pension referring to the Government Order dated 25th March, 2014, which was taken notice of by the learned Single Judge in the impugned judgment and order. 6. At this stage, it may be worthwhile to take notice of certain provisions of law, which are applicable in the facts of instant case. Rule 31 of the West Bengal Municipal (Employees Death-cum-Retirement Benefit) Rules, 2003, provides for payment of pension by the Municipality. It reads as follows: “Rule 31. Payment of pension by the Municipality. 6. At this stage, it may be worthwhile to take notice of certain provisions of law, which are applicable in the facts of instant case. Rule 31 of the West Bengal Municipal (Employees Death-cum-Retirement Benefit) Rules, 2003, provides for payment of pension by the Municipality. It reads as follows: “Rule 31. Payment of pension by the Municipality. (1) The pension under these rules shall be paid by the Municipality or Notified Area Authority from its own fund. (2) Pension shall be paid by the Municipal Authority [through a Nationalised Bank or] from the office of the Municipality or Notified Area Authority concerned. (3) Before the Death Gratuity or Retiring Gratuity is paid, the Municipal Authority should ensure that every employee clears all his dues. If no such clearance is made, the amount of dues, such as over payment of pay and allowances, advances arrears of Income Tax etc. shall be recovered out of the gratuity admissible.” 7. A plain reading of the above Rule reveals an expression, “own fund” in the context of payment of pension by the Municipality to its employees. Now, in order to find out what can be construed as “own fund” one has to look into section 67 of the West Bengal Municipal Act, 1993, which reads as follows: Section “67. Municipal Fund. – There shall be constituted for each Municipality a fund to be called Municipal Fund to be held by the Board of Councillors in trust for the purposes of this Act, and all moneys realised or realisable under this Act and all moneys otherwise received by the Municipality shall be credited thereto.” 8. Thus, one notices a statutory recognition of the term, “own fund” under section 67 of the West Bengal Municipal Act, 1993. 9. So far as salaries and allowances of officers and employees of a Municipality is concerned, the relevant provision of law is section 56 of the West Bengal Municipal Act, 1993. Sub-section (2) of the same section provides as follows: - “The Municipality may also provide for pension, gratuity, provident fund, incentive, bonus, reward or penalty for its officers and employees in accordance with such rules, norms, scales and conditions as may be prescribed.” 10. Sub-section (2) of the same section provides as follows: - “The Municipality may also provide for pension, gratuity, provident fund, incentive, bonus, reward or penalty for its officers and employees in accordance with such rules, norms, scales and conditions as may be prescribed.” 10. The above provision of law clearly stipulates that in respect of pension, gratuity, provident fund, incentive, bonus, reward or penalty for its officers and employees, the Municipality may provide for the same in accordance with such rules, norms, scales and conditions as may be prescribed. The relevant Rule, i.e., Rule 31 of the West Bengal Municipal (Employees Death-cum-Retirement Benefit) Rules, 2003 which has been quoted earlier – makes it clear and specific that so far as payment of pension by the Municipality is concerned, it is to be paid by the Municipality from its “own fund”, which, as observed hereinabove, has been statutorily defined under section 67 of the West Bengal Municipal Act, 1993. 11. In view of the above discussion, reference to the Government Order dated 25th March, 2014, by the Krishnanagar Municipality, is wholly unwarranted and unjustified. Even if such a Government Order has been issued by a Joint Secretary to the Government of West Bengal, Department of Municipal Affairs – wherefrom it appears that 40 per cent of the total requirement of pension on the revised scale of pay to the pensioners of the “Urban Local Bodies” for the year 2012 – 2013 and 2013 – 2014 have been released by the State Government; it cannot, by any stretch of imagination, allow the Municipality to abdicate its statutory obligation to ensure payment of pension to its employees out of its “own fund”, i.e. the Municipal Fund, as envisaged under section 67 of the West Bengal Municipal Act, 1993. That apart and in any event, the Chairman of the concerned Municipality, who was present before the learned Single Judge and is now a co-appellant, had himself submitted that the Municipality was willing to release arrear pension in favour of the writ petitioner within the time that may be fixed by the Court. It was on the basis of his submission that the learned Single Judge disposed of the writ petition in such a manner, as quoted hereinabove. 12. It was on the basis of his submission that the learned Single Judge disposed of the writ petition in such a manner, as quoted hereinabove. 12. In such facts and circumstances, this Court notices no palpable infirmity in the impugned judgment and order passed by the learned Single Judge which would warrant any interference in the present Intra-Court Mandamus appeal. The appeal is, therefore, liable to be dismissed and is accordingly dismissed along with the connected application for stay. 13. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties. I agree.