The authority concerned cannot penalise an employee by refusing to grant pension on the ground of deficiency of service when the deficiency was caused by their own wrong.

Jyotirmay Bhattacharya, J.

1. This mandamus appeal and the application for condonation of delay filed in connection with the said appeal have been assigned to this Bench for its disposal by the Hon'ble Chief Justice.

2. The instant mandamus appeal was filed beyond the prescribed period of limitation. There was 194 days delay in filing this appeal.

3. The reason for the delay has been explained by the appellants in this application. It is alleged therein that slow movement of the file from one table to the other of the State-appellants was the primary reason for the delay in filing this appeal. It is further alleged therein that the misplacement of the certified copy of the impugned order from the lawyer’s chamber is the other ground for which such delay was caused.

4. Considering the fact that no individual officer of the Government organisation can take the ultimate decision for filing an appeal, the delay is normally caused in all appeals where the State is the appellant.

5. Considering the un-controverted statements made by the appellants in the said application for condonation of delay, we are of the view that the reason for the delay in filing this appeal has been sufficiently explained by the appellants in this application.

6. Accordingly, delay in filing the appeal is condoned.

7. The application for condonation of delay thus, stands allowed.

8. Let the appeal now be registered.

9. Immediately after the delay in filing the appeal is condoned, we are requested by the learned advocates appearing for the parties to dispose of the appeal on merit by dispensing with the requirement of filing paper book in this appeal. We find that the papers which are necessary for disposal of the appeal, are before us. Copy of the order passed by Justice Mohitosh Majumdar (as His Lordship then was) on 13th March, 1991 in C.O. No. 11154 (W) of 1989 (Dibakar Pal & Others v. State of West Bengal & Others) has also been produced before us by the concerned department pursuant to the direction passed by us on 4th March, 2016.

10. Finding that the necessary papers are already before us, we have decided to hear the appeal by dispensing with the requirement of filing paper book in this appeal.

11. By the impugned order, the learned Single Judge of this Court directed the concerned department to condone the deficiency of qualifying service of two months and one day in favour of the writ petitioner and to allow him to get pension in terms of the West Bengal Recognised Non-Government Educational Institutions Employees (Death-cum-Retirement Benefit) Scheme, 1981. The entire exercise was directed to be completed within a period of six weeks from the date of communication of the said order.

12. Ms. Bhattacharya, learned advocate appearing for the appellants submits that in order to be eligible for pension, an employee should complete at least ten years of qualifying service under Rule 8 of the aforesaid Rule. She submits that admittedly, the writ petitioner failed to satisfy the said condition.

13. As such, the writ petitioner according to Ms. Bhattacharya, is not entitled to pension. She further submits that as per the “Note” appended to Rule 7(e)(IV), the deficiency period can be condoned with a view to make up the minimum prescribed qualifying service for the purpose of death gratuity or family pension. It is further provided therein that in other cases power should be restricted to the employees drawing pay not exceeding Rs. 425/- per month at the time of retirement on invalid or compensation pension.

14. By drawing our attention to the said Rule, she submits that the deficiency of service is not condonable by the concerned authority if it does not satisfy any of the conditions as mentioned in the “Note” appended to Rule 7(e)(iv). She thus submits that since none of the conditions as mentioned in the “Note” appended to Rule 7(e)(iv) is satisfied in the instant case, the authority concerned refused to condone such deficiency of service of the writ petition