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2019 DIGILAW 569 (CAL)

Nilima Chatterjee v. State of West Bengal

2019-05-03

I.P.MUKERJI, MD.NIZAMUDDIN

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JUDGMENT : I. P. Mukerji, J. 1. Although this judgment has been written and pronounced by me, it is a product of collaboration between brother Md. Nizamuddin, J. and myself. 2. The appellant is the widow of a professor. Her husband, Dr. K. N. Chatterjee was a professor in Sanskrit. He did not confine himself to one university. He taught in various universities outside West Bengal under the Central government and in West Bengal under both these governments. He began his career on 17th January, 1959 as a lecturer in Visva-Bharati University and served there till 19th January, 1973. Then he went to Varanasi and occupied the chair of Reader in Sanskrit in Benaras Hindu University from 20th January, 1973 to 12th August, 1982. From 12th August, 1982 till 31st December, 1990 he was professor in Sanskrit in Rabindra Bharati University. After retirement on attaining the age of 60 years on 31st December, 1990 he worked as Vice Chancellor of North Bengal University till 31st December, 1995. He died on 21st April, 1996. 3. In 2014 this writ application was filed by his widow impleading the Government of West Bengal, Visva-Bharati University, Rabindra Bharati University and Benaras Hindu University as respondents and claiming the following principal relief: "A writ of or in the nature of Mandamus commanding the respondents to disburse and/or release all the retiral benefits including pension and/or Family Pension, Gratuity, Provident Fund, Life Insurance, and any other dues, credit amount in respect of her deceased husband forthwith;" 4. This is not the first round of litigation made by the appellant. There were earlier rounds. 5. The starting point can very conveniently be taken as the judgment and order of Mr. Justice Dasadhikari. The operative part of the judgment and order dated 31st January, 2014 is as follows:- "Heard the learned counsel for the appearing parties. It appears that the concerned Director of Public Instruction, West Bengal failed to appreciate two previous decisions as disclosed in their letters dated 24th March, 2009 and 23rd July, 2009. The then D.P.I. in his letter dated 23rd July, 2009 informed the petitioner that the University Branch of Higher Education Department has sent the matter to Finance Department on 13.07.2009 with the proposal for extension all pensionary benefits as special case treating notionally the entire period of service of late K. N. Chatterjee. The then D.P.I. in his letter dated 23rd July, 2009 informed the petitioner that the University Branch of Higher Education Department has sent the matter to Finance Department on 13.07.2009 with the proposal for extension all pensionary benefits as special case treating notionally the entire period of service of late K. N. Chatterjee. Thus, without getting the opinion of Finance Department the concerned D.P.I. held that late Chatterjee had been working in one State University for 8 years 4 months, if the said period is taken into account for ascertaining the eligibility of pension or family pension, benefit could not be allowed since the concerned employee could not complete 10 years qualifying service. In my view the Director of Public Instruction, West Bengal totally overlooked the decision of Higher Education Department, Govt. of West Bengal, which is pending decision before Finance Department. It is evident that previously D.P.I. had accepted the entire period of service of Late K.N. Chatterjee in Stateaided Educational Institution and sent the proposal for approval to the Finance Department on 13th July, 2009. But the present D.P.I. did not enquire from the Finance Department about the fate of the proposal, which was sent as back as in 13th July 2009. The D.P.I. has also failed to consider that there is also one instance i.e., case of Nemai Chand Boral in whose case pensionary benefit was extended by Rabindra Bharati University accepting his previous service. I find that the Director of Public Instruction, West Bengal has failed to consider the case in a proper way and have erroneously came to the conclusion that the benefits cannot be extended to the petitioner. Therefore, I set aside the impugned order dated 8th March, 2011 and the direct the Finance Department to consider and decide the proposal dated 23rd July, 2009, if not already decided, by eight weeks from the date of communication of this order and send the same to Director of Public Instruction, West Bengal and D.P.I. is to act in accordance with law. The writ petition is allowed. There would be no order as to costs." 6. Let us give more details about the basis of the claim of the appellant on behalf of her late husband K. N. Chatterjee. The writ petition is allowed. There would be no order as to costs." 6. Let us give more details about the basis of the claim of the appellant on behalf of her late husband K. N. Chatterjee. She relies on a notification (G.O No.85 Edn (U) dated 31st January, 2000) to the effect that the state government may consider extension of retirement benefits to teachers, officers and non-teaching employees who had joined any of the state-aided universities after serving continuously in a university, college, research institute, organisation of national importance not within the administrative control of the State Government provided the institute handed over the "capitalised value of gratuity and pension to the State and is in position to extent reciprocity service." The appellant also contends that she had written to Visva Bharati and Benaras Hindu University under the Right to Information Act, 2005 with regard to the status of the appellant's husband's claim but did not receive any reply. 7. Learned counsel for the appellant places special emphasis on the letter dated 24th March, 2009 written by the Director of Public Instruction, West Bengal to the Registrar, Rabindra Bharati University. This letter confusingly worded, had sent a wrong signal to the appellant that the State Government was willing to grant pensionary benefit in the form of family pension to her. The material part of that letter is reproduced below: "Since the grievance of the petitioner is to release pensionary benefits of late Prof. K. N. Chatterjee and for that purpose the past service rendered by Dr. K. N. Chatterjee (since deceased) is to be counted, as such the Higher Education Department sent a note that the State Government has no objection to count the past services of Late Prof. K. N. Chatterjee and for that purpose the past service rendered by Dr. K. N. Chatterjee (since deceased) is to be counted, as such the Higher Education Department sent a note that the State Government has no objection to count the past services of Late Prof. K. N. Chatterjee subject to the condition as laid down at Para 16 of G.O. No. 85 Edn (U) dated 31.01.2000 to the effect that State Government may consider extension of retirement benefit to employees (teachers, officers and non-teaching employees) who have joined any of the State aided Universities after serving continuously in an University, College and Research institute/ Organisation of National importance not being within the administrative jurisdiction of the State Government provided such University/College/Research Institute/Organisation of national importance pay the capitalized value of Gratuity and pension as may be determined by the State Government and agree to extend the service benefit to any employee of the State-aided University in West Bengal as reciprocal basis. A photocopy of the said G.O.No.85-Edn(U) dated 31.1.2000 is enclosed herewith. As such I am directed to request you to take immediate action to release all pensionary benefits in favour of Late Prof. K. N. Chatterjee as Prof. Chatterjee retired from Rabindra Bharati University as per the existing rules - as may be applicable in this case. The action stated above may kindly be made immediately so that the solemn direction of the Hon'ble High Court at Calcutta is complied with. This may kindly be treated as extremely urgent." 8. To put it in short, the stand taken by the government of West Bengal was this: It was prepared to pay the pensionary benefits to the appellant, provided the notification dated 31st January, 2000 was made applicable to the service of the appellant's husband and secondly the three central universities where he taught should hand over to the State government "capitalised value" of gratuity and pension, as determined by the State. Furthermore, there should be a reciprocal arrangement in respect of the teachers with past service in a West Bengal Institution who have superannuated from a central university. 9. It was contended on behalf of the respondents that first of all, the notification of 2000 could not be retrospectively applied to the service of the appellant's husband which ended on 31st December, 1990. 9. It was contended on behalf of the respondents that first of all, the notification of 2000 could not be retrospectively applied to the service of the appellant's husband which ended on 31st December, 1990. Secondly, the number of years of service rendered by the husband was only 8 years, well short of the qualifying period of 15 years. Thirdly, the husband had collected and appropriated his entire dues from each of the three universities. He was paid the gratuity amount by each of them. He had availed of contributory provident fund. Since, he had collected his dues from the three central universities, the condition in the notification of 2000 that the gratuity and pension amount, as assessed by the state government ought to be made over to it by the other university or universities or institutions, became impossible to comply with. It was also stated that the appellant had not been able to produce any document whatsoever from any of the three universities to show that such benefit had not been availed of by her late husband. 10. Now, let us examine how the consideration was made by the Finance department of the government of West Bengal through Mr. H.K. Dwivedi in terms of the judgment and order dated 31st January, 2014 passed by this Court. 11. The decision dated 28th August, 2014 notes that the Higher Education Department of the state government made a note to the Finance Department to extend pensionary benefit to the professor according to the Memo G.O. No. 1250-Edn.(U) dated 27th December, 1991, treating his entire service under the West Bengal government assisted teaching institutions. This was accepted by the Finance department as expressed in their note dated 25th March, 2010 with the rider that the two central universities may be requested to remit the "Pension Contribution/Employer's Share of Contribution" in respect of professor's service in those universities to it. In this way, the state government would be able to count his past service for pensionary benefits. 12. However, these two central universities stated that the professor had withdrawn in full his contributory provident fund entitlement and other retiral benefits. In those circumstances, those two universities were not willing to remit the employer's share to this State. 13. In this way, the state government would be able to count his past service for pensionary benefits. 12. However, these two central universities stated that the professor had withdrawn in full his contributory provident fund entitlement and other retiral benefits. In those circumstances, those two universities were not willing to remit the employer's share to this State. 13. The Finance department in the said decision dated 28th August, 2014 ruled that the professor was not entitled to the benefit of the Memo dated 31st January, 2000 because he attained 60 years of age on 31st December, 1990 from Rabindra Bharati University and worked as Vice Chancellor of North Bengal University till 31st December, 1995. He died on 21st April, 1996. Para 3(iv) of the Memo stipulated that it was not available to employees who retired prior to 1st May, 1999. 14. The Finance department also ruled that the memo dated 27th December, 1991 was not applicable as it provided for family pension, provided that at the time of death, the former employee was getting pension. The finance department also ruled that Professor Chatterjee worked in Rabindra Bharati University from 13th August, 1982 to 31st December, 1990 for 8 years and 4 months which was well short of the qualifying service of 15 years as provided in the notification dated 27th December, 1991. 15. Then the Finance department proceeded to consider whether any "special dispensation" was required to be made in favour of the professor. 16. Mr. Dwivedi went on to say that Professor Chatterjee had drawn full contributory provident fund benefits including the employer's share from Visva Bharati University and also from Benaras Hindu University. He also availed of the gratuity amounts from both the universities. Those institutions were not willing to contribute towards payment of family pension to the professor. The professor had also opted for contributory provident fund scheme as Vice Chancellor of North Bengal University. In those circumstances, the government was not prepared to exercise its discretion to grant family pension in respect of Dr. Chatterjee's service to the appellant. The letter of the director of Public Instruction, West Bengal to the Registrar, Rabindra Bharati University dated 24th March, 2009 at Page 55-56 of the paper book made it absolutely clear that the State Government had no objection to the grant of family pension to the appellant. Chatterjee's service to the appellant. The letter of the director of Public Instruction, West Bengal to the Registrar, Rabindra Bharati University dated 24th March, 2009 at Page 55-56 of the paper book made it absolutely clear that the State Government had no objection to the grant of family pension to the appellant. But it added a condition that this no-objection was subject to the notification dated 31st January, 2000. 17. In their approval note dated 25th March, 2010 the finance department advised the Higher Education Department to take up the matter with the two central universities where the professor had served requesting them to remit the pension contribution or employer's share of contribution. It is absolutely true that this case is not covered by the notification dated 31st January, 2000 Para 3(iv) because the professor retired prior to 1st May, 1999. Furthermore, it is not covered under notification dated 27th December, 1991 because of the provision that the family pension would be payable if the employee was receiving pension at the time of his death. Furthermore, under the notification dated 27th December, 1991 the qualifying service had to be of 15 years. In this case, the professor's service was only 8 years in Rabindra Bharati University. 18. There could not be any transfer of funds from other universities to enable this government to pay him pension. 19. In addition to that, Mr. Dwivedi of the Finance department making the adjudication observed that there were numerous other applications for grant of family pension by employees or other legal heirs. These employees were also short of qualifying service. Since poor employees like khalasis were not paid any pension. The professor was also not entitled to any pension from the government. 20. In our opinion Mr. Dwivedi has addressed the issues correctly to a substantial extent. 21. Professor Chatterjee did not have qualifying service with Rabindra Bharati. He served for eight years when the qualifying service period was 15 years. The state has the power to relax this period by six months only. Therefore, his service with Rabindra Bharati University could not be converted into qualifying service. 22. Secondly family pension can be given to the eligible legal heir of a deceased employee if he was receiving pension at the time of his demise. The professor was not receiving any pension at the time of his death. Hence the appellant was ineligible. 23. Therefore, his service with Rabindra Bharati University could not be converted into qualifying service. 22. Secondly family pension can be given to the eligible legal heir of a deceased employee if he was receiving pension at the time of his demise. The professor was not receiving any pension at the time of his death. Hence the appellant was ineligible. 23. The government told his widow that they were in principle agreeable to grant him pension provided the other universities transferred a fund to it which was acceptable. In that case the government would treat the professor's service under this state and his service under the central government educational institutions as one and grant him pension. The fact is that the professor has taken the entire financial retiral benefits from this institution. Hence he became ineligible to get any pension. 24. From a pure technical perspective the impugned decision is not incorrect. 25. But look at it in this way. 26. This professor was very learned, rendered flawless service, holding the highest positions in various universities. He passed away some 23 years ago in 1996. The rupee is much devalued since then. Inflation rate has also been high. It is apparent that the widow is in financial need .That is why she is knocking on the doors of this court. 27. It should not be forgotten that way back in 2009 the government agreed in principle to grant him pension tagging his services in various universities as one so as to satisfy the qualifying service requirement. This was subject to the condition that these other universities would be in a position to transfer an acceptable fund to the state. That could not happen as the professor had withdrawn all the financial benefits. Now, let us try to see what was the underlying policy of the state. It would bear proportionate pension for the professor's eight years of service under them. The balance of the full pension amount would come out of the fund received by them from the other universities. Our notion is that when you have taken a decision in principle to grant the professor pension what prevents the state, as a special case, to pay proportionate pension only equivalent to 8/15 of the full pension or any lesser sum as the state thinks fit, after declaring his service in all the universities as one and a qualifying service. Our notion is that when you have taken a decision in principle to grant the professor pension what prevents the state, as a special case, to pay proportionate pension only equivalent to 8/15 of the full pension or any lesser sum as the state thinks fit, after declaring his service in all the universities as one and a qualifying service. If that is the case then it could be deemed that the professor was receiving pension at the time of his death. Hence his widow, the appellant would be entitled to family pension. This would not prejudice the state. 28. This court cannot rewrite the government's policy. Neither can it pass an order asking the government to change its policy, normally. But when implementation of a policy involves use of value judgment and judicious discretion, it can give guidance to the government how to exercise its discretion. Here exercise of discretion is in issue. In those circumstances we direct the Principal Secretary, Higher Education department and the Principal Secretary, Finance department to consider the question whether the appellant should receive a truncated family pension with prospective effect only for the services rendered by late professor K. N. Chatterjee by a reasoned decision taking into account our observations above, without giving hearing to the appellant, within three months of communication of this order. 29. The impugned judgment and order dated 21st January, 2016 is set aside. 30. The appeal FMA 825 of 2017 (MAT 376 of 2016) is accordingly disposed of. 31. Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities. I agree.