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2019 DIGILAW 479 (CAL)

Sibani Ghosh v. State of West Bengal

2019-04-10

ABHIJIT GANGOPADHYAY

body2019
JUDGMENT : 1. A prayer made in the writ application, reproduced herein-below will show the casual attitude or the deliberate suppression of fact in filling the writ application. The relevant prayer being prayer (b) is as follows: "(b) A writ in the nature of Mandamus commanding the respondents, to disburse the interest towards delayed payment of gratuity of the petitioner till the actual payment at the rate of 18% interest per annum." 2. From the prayer it cannot be known and understood from which date interest towards delayed payment of gratuity is being claimed. From other prayers of the writ application also this necessary particular i.e. the date from which the interest is to be calculated is not available. It is also not found from the pleading also. 3. This is sufficient for dismissal of the writ application. 4. However, as this is a writ application filed by a retired teacher of a School instead of dismissing the writ application I proceed to decide the writ application on merit. 5. The petitioner was an Assistant Teacher of a School who retired on superannuation on 31.08.2009. According to the petitioner a gratuity amount of Rs. 5,14,414/- was paid to her on 29.04.2015. It has been stated by the petitioner that she is entitled to get her retiring gratuity the date following the date of her retirement (which she is not in this case, as we will see almost at the end of this judgment) but the respondents withheld the same and later the respondent paid the same only on 29.04.2015. Against delay in payment as above the petitioner sent one representation to the respondents. Neither the date of the representation, nor the content of the representation, nor the name of the respondent to whom the representation was sent has been disclosed in the writ application. No copy of the representation has been disclosed as annexure of the writ application. Irresponsibility of the petitioner is evident in this regard and I do not believe the story of such representation. 6. The writ petitioner earlier filed one writ application being W.P. No. 472 (W) of 2017 in respect of which an order, inter alia, for considering the case of the petitioner and to calculate the interest on the delayed payment was passed by this Court on January 01, 2017. 7. 6. The writ petitioner earlier filed one writ application being W.P. No. 472 (W) of 2017 in respect of which an order, inter alia, for considering the case of the petitioner and to calculate the interest on the delayed payment was passed by this Court on January 01, 2017. 7. After considering the case of the writ petitioner in compliance with he said order dated January 01,2017 the Director, Pension, Provident Fund & Group Insurances, Government of West Bengal (Director, in short, hereafter) passed an order dated January 15, 2017 rejecting the claim of the petitioner as to granting of any interest. In the said order of the Director (annexure P-3 of the writ application) the Director has considered some dates which according to him were relevant and gave rationale behind the order which is as follows: "It appears from the available records that the petitioner had prayed for condoning the excess drawal of salary from 08.02.1988 to 31.08.2009 before the concerned school in accordance with the G.O. No. 199 (20)-SE(S) dated 05.03.2007. The prayer of the petitioner was forwarded by Headmistress of the concerned School to the concerned District Inspector of Schools on 09.09.2013 and ultimately on 11.08.2014, the prayer of the petitioner was allowed by the School Education Department. Thereafter the pension case of the petitioner was forwarded to the Office of the DPPG on 08.12.2004 vide District Inspector of School Memo. No 832/P dated 08.12.2014 as a CTG case and the petitioner exercised her option under G.O. bearing No. 749-SE (L) dated 13.06.2014 on 02.09.2014. Therefore, it can be stated that the delay was made by the petitioner only, as she prayed for condonation of overdrawal of salary. Knowing fully the entire facts as stated above the petitioner did not disclose the same before the Hon'ble High Court, Calcutta." 8. While challenging the said order of the Director dated 15.06.2017 rejecting the claim of interest due to delayed payment of gratuity it has been stated in the petition that the rejection order has been passed arbitrarily, the impugned order is bad and is not sustainable in law and fact, and statement made in the impugned order (i.e. the order of the Director) "neither have any relevancy" nor the same "could change" the entitlement of the petitioner and/or quantum of the petitioner's gratuity. 9. 9. From such pleading made in the writ application it is found that the order of the Director dated 15.06.2017 has not even been properly challenged with cogent ground. On the contrary the rationale behind the order as has been quoted above has not been dealt with by the petitioner from where the following facts are found: (i) The petitioner prayed to the Government for condonation of the excess drawal of salary from 08.02.1988 to 31.08.2009 (i.e. for 21 years). (ii) Such prayer for condonation was made in accordance with Government order (G.O. in short) No. 199 (20)-SE(S) dated 05.03.2007. No whisper has been made by the petitioner in the writ application either in respect of excess drawal or in respect of said Government order dated March 05, 2007. The G.O. dated March 05, 2007 was really an order for change under different ROPA Rules in respect of teachers of aided/sponsored School. From the said G.O. it would be evident that the said G.O. was issued to save the teachers from great distress of deduction of over drawal of pay and allowances etc. (iii) The petitioner's prayer under the said G.O. dated March 05, 2007 was allowed on August 11, 2014. 10. Such facts which has a bearing for deciding the present matter has neither been dealt with nor has been denied by the petitioner; nor such facts have been pleaded in the writ application. The writ application suppresses much, discloses little. 11. The petitioner retired on 31.08.2009. 12. She opted for switch-over to Pension-cum-Gratuity scheme under the West Bengal recognised Non-Governmental Educational Institution (Death-cum Retirement Benefit) scheme 1981. Such scheme came into effect by way of a notification of the School Education Department of Government of West Bengal form June 13, 2014 by notification No 749- SE (L). 13. There is a format in the said scheme for exercising such option by the willing teachers and also the retired teachers. In the said format for option a declaration was required to be given by the teachers/retired teachers which declaration says that he/she shall be entitled to pension only from the date on which he/she refunded employer's share of Contributory Provident Fund with interest and additional interest to Government Account ...etc. 14. The procedure and function of the Government officials for calculation of such employer's share has been given in the said notification date June 13, 2014. 15. 14. The procedure and function of the Government officials for calculation of such employer's share has been given in the said notification date June 13, 2014. 15. It has not been stated in the writ application when the petitioner refunded the employer's share of Contributory Provident Fund to Government Account. 16. As the prayer of the petitioner in support of her overdrawal of pay and allowances etc. was allowed on August11, 2014 there could not have been any question of calculation of employer's share of Contributory provident Fund for the petitioner before August 11, 2014. 17. It is found from the order of the Director dated June 15, 2017 that the petitioner exercised her option under notification No. 749-SE (L) dated 13.06.2014 on September 02, 2014. This fact also has not been disclosed by the petitioner, nor it has been denied or disputed by him. 18. Therefore, the question of entitlement of the petitioner to receive gratuity of any description arises only form the date when she refunded the employer's share of Contributory Provident Fund and not before that. 19. This date of refund of share of contributory Provident Fund by the petitioner is required to be known. This date has not been mentioned in the order of the Director dated 15.06.2017. It has also not been disclosed by the petitioner. 20. In any event, the petitioner is not entitled to receive gratuity amount from the date following the date of her retirement which is evident from the facts and circumstances discussed above, most of which were not disclosed by the petitioner. 21. It is admitted position that the gratuity amount being Rs. 5,14,414.00 was paid to the petitioner on 29.04.2015. 22. Therefore, the petitioner would be entitled to interest for delayed payment of gratuity from the date of refund of the employer's share of Contributory Provident Fund by the petitioner till the date of payment of gratuity i.e. 26.04.2015 and for no other period. 23. I direct the Director, Pension, Provident Fund & Group Insurance, Government of West Bengal to find out the date when the petitioner refunded the employer's share of Contributory Provident Fund. At the same time I direct the petitioner to supply to the said Director the date when such refund was made by her to Government Account. 23. I direct the Director, Pension, Provident Fund & Group Insurance, Government of West Bengal to find out the date when the petitioner refunded the employer's share of Contributory Provident Fund. At the same time I direct the petitioner to supply to the said Director the date when such refund was made by her to Government Account. If there is no discrepancy between the two dates (one to be found out by the Director and the other that would be submitted by the petitioner) the Director's Office will calculate the interest amount from that date of refund till the date of payment of gratuity at the rate of 6.5% per annum on the amount of Rs. 5,14,414/- and will take step to pay the interest amount to the petitioner. If there is any discrepancy between the two dates as aforesaid of refund of employer's share of Contributory Provident Fund to Government Account (following the terms of the format for option in the notification No. 749-SE (L) dated 13.06.2014) the discrepancy is to be settled by the petitioner or her authorised representative and the said Director or any of his responsible officers by holding meeting and after arriving at a consensus date of refund of employer's share of Contributory Provident Fund, the Director shall proceed to pay the interest amount. 24. The entire exercise as directed above is to be completed by six months from date of communication of this order to the said Director of Pension, Provident Fund & Group Insurance, Government of West Bengal. 25. With the above order the writ application is allowed. No Costs.