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1998 Supreme(Cal) 65
IN THE HIGH COURT AT CALCUTTA
SATYABRATA SINHA & DIBYENDU BHUSAN DUTTA, JJ.
Principal, Regional Engineering College, Durgapur
Versus
Sushil Kumar Mukherjee & other
M.A.T. No. 3757 of 1997
Decided on : 18.2.1998
N.C. Bhattacharjee for the Appellant.
Biman Basu & S. Nandy for the Respondent.
S. Das Gupta & Amar Mitra for the State.
An employee is not entitled to invalid pension under the Death Cum Retirement Benefit Scheme (Non-teaching) if they have not completed 10 years of qualifying service.
Headnote:
INVALID PENSION - DEATH CUM RETIREMENT BENEFIT SCHEME (NON-TEACHING) - WEST BENGAL SERVICE RULES, 1971 - RULE 10(2)(C) - SERVICE - SATISFACTORY SERVICE - QUALIFYING SERVICE - RETROSPECTIVE EFFECT - RESIGNATION - ACCEPTANCE OF RESIGNATION - NATURAL JUSTICE - DELAY IN FILING WRIT PETITION - SUPPRESSION OF MATERIAL FACTS - INVALID PENSION - ENTITLEMENT - INTERPRETATION OF SCHEME - COURT'S ANALYSIS AND CONCLUSION.
Fact of the Case:
The petitioner, a stenographer, joined the appellant college in 1967. He suffered from leprosy from 1969 and took leave for over three years. In 1973, he submitted his resignation with retrospective effect from 1972 due to illness. The college accepted his resignation in 1977. In 1982, the State Government introduced the Death Cum Retirement Benefit Scheme (Non-teaching) with retrospective effect from 1974. The petitioner applied for invalid pension under the scheme in 1988, which was rejected. He filed a writ petition in 1991, challenging the rejection of his application.
Finding of the Court:
The court held that the petitioner was not entitled to invalid pension under the Death Cum Retirement Benefit Scheme (Non-teaching) because he did not complete 10 years of qualifying service. The court also held that the petitioner's resignation was valid and that he had not challenged the acceptance of his resignation in a timely manner. Furthermore, the court found that the petitioner had suppressed the fact that his son had obtained an appointment on compassionate grounds due to his retirement on medical incapacity.
Issues: 1. Whether the petitioner had completed 10 years of qualifying service under the Death Cum Retirement Benefit Scheme (Non-teaching). 2. Whether the petitioner's resignation was valid. 3. Whether the petitioner had challenged the acceptance of his resignation in a timely manner. 4. Whether the petitioner had suppressed material facts in his writ petition.
Ratio Decidendi: 1. The court interpreted clause 8 of the Death Cum Retirement Benefit Scheme (Non-teaching), which required employees to complete 10 years of qualifying service to be eligible for pension. The court held that qualifying service required the actual rendition of service and that the petitioner had not rendered any service for over eight years due to his illness. 2. The court held that the petitioner's resignation was valid because it was accepted by the college in 1977 and the petitioner had not challenged the acceptance of his resignation in a timely manner. 3. The court held that the petitioner had suppressed the fact that his son had obtained an appointment on compassionate grounds due to his retirement on medical incapacity. The court found that this was a material fact that should have been disclosed in the writ petition.
Final Decision: The court allowed the appeal and dismissed the petitioner's writ petition.
SATYABRATA SINHA, J.
1. This appeal is directed against a judgment and order dated 5th September, 1997 passed in C.O. 7490 (W) of 1991, whereby and whereunder the writ petition filed by the petitioner was allowed, wherein he claimed for the following reliefs:-
"(a) Writ in the nature of Mandamus commanding the respondents from giving effect or further effect to the impugned orders as in Annexure 'D' and 'E' hereto, and further commanding them to rescind, recall and/or withdraw the same.
(b) A further writ or Mandamus declaring that the petitioner is entitled to get invalid pension from the respondents who be directed to pay to him the same in accordance with law with arrears on that score within a specified time.
(c) Writ of certiorari calling upon the respondents to certify and to produce or cause to be produced all records pertaining to the case of the petitioner before this Hon'ble Court so that conscionable justice may be done by setting aside and/or quashing the impugned orders as in Annexure 'D' and 'E' hereto."
2. The fact of the matter is not in dispute.
3. The petitioner joined his services under the appellant college in 1967 as a stenographer. With effect from 2.6.69, he has been suffering leprosy. For a period of more than three years i.e., 2.6.69 till 27.7.72, he took leave on the ground of his illness and on 23.7.72, he categorically stated that he could not remain in service and as such, he prayed for grant of his due leave. On 8.5.73, the petitioner submitted his resignation on the ground of illness with-retrospective effect on 24.7.72. On 21.7.73, the petitioner was informed that he may be allowed to avail leave for a period of five years upon furnishing medical certificate. In the meantime, State of West Bengal introduced a scheme known as, Death Cum Retirement Benefit Scheme (Non-teaching) by office Memo/Order dated 1.10.82 with retrospective effect from 1.4.74. On 21.10.74, the petitioner was informed that he should submit a certificate from the Specialist for acceptance of his resignation and such a certificate was submitted on 1.4.77, whereafter his resignation was accepted by the Standing Committee by order dated 30th June, 1977 with effect from 24.7.72 and the said decision was rectified by the Board by an Order dated 27.8.77. By reason of a letter dated 14.10.77 as contained in annexure 'C' to the writ application, the petitioner as conveyed the aforementioned decision. The petitioner did not question the said order for a long time. The petitioner's son has got appointment on compassionate ground by a letter dated 30th September, 1986. The Appellant states that it did not object to the appointment of the petitioner's son and for that purpose conditions therefor were relaxed. Only on 19.12.88, a prayer was made by the petitioner and he filed an application for grant of invalid pension which was rejected by an order dated 19.12.88 as contained in annexure 'D' to the writ application. The petitioner submitted a representation before the State of West Bengal and by an order dated 7.2.90, the said representation was also rejected which is contained in annexure 'E' to the writ application. The writ petition was filed in the year 1991, questioning the aforementioned orders dated 19.12.88 and 7.2.90. The learned trial Judge upon consideration of the facts and circumstances of this case, allowed the writ application.
4. Mr. N.C. Bhattacharjee, learned counsel appearing on behalf of the appellant, has raised four contentions in support of this appeal. The learned counsel submits that the petitioner did not fulfill qualifying service in terms of the Government Circular letter dated 1.4.74 inasmuch as his resignation has been accepted with effect from 24.2.72. The learned counsel further contends that although the order of acceptance of his resignation having been passed on 14.10.77, the said order was never the subject matter of the writ application which was filed only in the year 1991 and as such Mr. Bhattachar
