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2019 Supreme(Cal) 789
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
T.B.N. RADHAKRISHNAN, DIPANKAR DATTA, JOYMALYA BAGCHI, JJ.
Inspector of Schools - Appellant
Versus
Abhijeet Baidya & Others - Respondents
G.A. Nos. 464 of 2018 & 627 of 2006, APOT. No. 104 of 2006, APO. No. 121 of 2007, W.P. No. 1528 of 2002
Decided On : 30-09-2019
For the Applicant :Bikash Ranjan Bhattacharya, Sr. Advocate, Subir Sanyal, Kamalesh Bhattacharya, Sakti Pada Jana, Subhrangsu Panda, Baishali Ghosal, T. Dhali, Advocates
For the Respondents:Kishore Datta, Advocate General, Abhratosh Majumder, Addl. Advocate General, Joytosh Majumer, Govt. Pleader, T.M. Siddique, Sr. Govt. Advocate, Paritosh Sinha, Nilotpal Chatterjee, Advocates
The High Court has the inherent power to correct its record and to clarify its orders to remove any ambiguity or error.
Headnote:
PENSION - PAYMENT - EMPLOYEES OF NON-GOVERNMENT EDUCATIONAL INSTITUTIONS - PENSION-CUM-GRATUITY SCHEME - OPTION - REFUND OF EMPLOYER'S SHARE OF PROVIDENT FUND WITH INTEREST - DATE OF COMMENCEMENT OF PENSION - CLARIFICATION OF ORDER OF FULL BENCH - JURISDICTION OF HIGH COURT - INHERENT POWER - SECTION 152 OF THE CODE OF CIVIL PROCEDURE, 1908.
Fact of the Case:
The Full Bench of the High Court of Calcutta, in a common judgment and order, dismissed intra-court writ appeals filed by the State Government and allowed writ petitions filed by teachers of non-Government educational institutions. The Full Bench held that the teachers were entitled to pension and gratuity by virtue of operation of para 17 of ROPA 1990 and that the amendment made in para 17(2) of ROPA 1990 on May 16, 2007 could not be said to be valid law. The Full Bench also held that para 13 of ROPA 1998, as amended on July 13, 1999, could not be said to be valid in law. The Full Bench directed the State Government to give opportunity to all the petitioners and other employees similarly situated to submit option to switch over to Pension-cum-Gratuity by issuing public notice in at least four newspapers having wide circulation in the State. The Full Bench also directed that the amount to be specified to each and every employee who elects to switch over to Pension-cum-Gratuity to deposit the amount of employer's share of contribution with interest and additional interest which is required to be refunded to the Government within the period specified. The Full Bench further directed that if an employee exercises option, he shall be entitled to Pension-cum-Gratuity in accordance with law with effect from the date refund is made.
Finding of the Court:
The High Court held that the Full Bench intended that the entitlement to Pension-cum-Gratuity in accordance with law of an employee ought to be preceded by exercise of an option within the time frame fixed in the notice and in the same breath having made refund of money by such employee a condition precedent for payment of pension to start, it necessarily implies that entitlement of such employee (if entitled to pension) to be paid pension from the date following the date of his retirement notwithstanding, actual payment of pension would stand deferred and not commence till such time refund of the employer's share of Provident Fund with interest including additional interest is made by him (employee). The High Court further held that the words 'with effect from' in paragraph 77 of the said order by no stretch of imagination can be said to have been incorporated to cause (as the State Government contends) unjust deprivation to a retired employee who is called upon to refund his provident fund with interest only to receive truncated pension from the date of such refund and not from the date following retirement on superannuation as per the DCRB Rules.
Issues: Whether the Full Bench intended to create two classes of employees - in-service employees and retired employees - and extend to them varying benefits.
Ratio Decidendi: The High Court held that the Full Bench did not intend to create two classes of employees - in-service employees and retired employees - and extend to them varying benefits. The High Court further held that the Full Bench intended that the entitlement to Pension-cum-Gratuity in accordance with law of an employee ought to be preceded by exercise of an option within the time frame fixed in the notice and in the same breath having made refund of money by such employee a condition precedent for payment of pension to start, it necessarily implies that entitlement of such employee (if entitled to pension) to be paid pension from the date following the date of his retirement notwithstanding, actual payment of pension would stand deferred and not commence till such time refund of the employer's share of Provident Fund with interest including additional interest is made by him (employee).
Final Decision: The High Court issued a clarification that if in terms of paragraph 77 of the said order an employee has opted for the Pension-cum-Gratuity scheme within the time frame fixed in the notice dated June 13, 2014 and has also refunded the quantum of money that was notified to him/her, he/she shall be entitled to be paid pension from the date following the date of his/her retirement on superannuation in accordance with the provisions in the DCRB Rules.
JUDGMENT :
Dipankar Datta, J.
INTRODUCTION
1. Dozens of intra-court writ appeals and writ petitions were finally decided by a Full Bench of this Court by a common judgment and order dated July 16, 2013 (hereafter the said order). The Bench comprised of Arun Mishra, CJ. (as His Lordship then was), and Dipankar Datta and Joymalya Bagchi, JJ.
(hereafter the Full Bench). The lead matter was APO 94 of 2009 (District Inspector of Schools, SE, Kolkata and Anr. vs. Abhijeet Baidya and Ors.). All the appeals carried by the State Government were dismissed, while the writ petitions succeeded to the extent indicated in the said order. After a special leave petition that the State Government carried to the Supreme Court of India from the said order failed on February 24, 2014, steps were taken to implement the directions contained therein albeit not to the satisfaction of all concerned who succeeded before the Full Bench.
2. We are now tasked to decide G.A. No. 464 of 2018, an application for clarification at the instance of one Md. Abdul Ghani (hereafter the applicant). His writ petition [W.P. No. 1528 of 2002] had succeeded before a learned Judge, whereupon the State Government and its officers preferred an intra-court writ appeal [APO 121 of 2007]. By the said order, APO 121 of 2007 too stood dismissed. The present application appears to have been necessitated in the wake of the State Government's understanding of paragraph 77 of the said order and its implementation thereof in a particular manner, which divests the applicant of his right to claim pension with effect from the date following the date of his retirement from service (October 31, 2003) on superannuation, i.e., w.e.f. November 1, 2003. The prayer, therefore, is for a clarification of the said order so as to facilitate payment of pension to the applicant by the State Government from November 1, 2003, instead of from September 10, 2014, i.e., the date on which the applicant refunded the employer's share of Provident Fund with interest and additional interest upon being notified by the State Government the quantum required to be refunded in terms of the said order.
THE ORDER UNDER CONSIDERATION
3. It would be profitable if, at this stage, we sketch a brief outline of the said order as a prologue to our decision on the merits of the rival claims.
4. A conflict of opinion between Division Benches of this Court comprising two Judges had resulted in a reference being laid before the Full Bench. It was noticed at that point of time that several other matters (intra-court writ appeals as well as writ petitions) were pending on the self-same point. The Full Bench, thus, decided not only the reference but also the other pending appeals and writ petitions by the said order. On one side of the litigation were teachers of non-Government educational institutions from all over West Bengal (hereafter the employees) and on the other side, the mighty State itself as well as its officers.
5. The challenge in the writ petitions, out of which the matters dealt with by the Full Bench arose, was directed against substitution of para 13 of Revision of Pay and Allowances, 1998 (hereafter ROPA 1998) with effect from July 13, 1999 and amendment made on May 16, 2007 in para 17 of Revision of Pay and Allowances, 1990 (hereafter ROPA 1990) retrospectively, with effect from March 6, 1990, without extending an opportunity to the employees to switch over to the Pension-cum-Gratuity scheme envisaged in the Death-cum-Retirement Benefit Rules, 1981 (hereafter the DCRB Rules).
6. It would be appropriate at the outset to notice the provisions of para 13 of ROPA 1998 before and after substitution. Originally, rule 13 read as follows:
"The teaching and non-teaching employees of aided/sponsored educational institutions who will opt for the revised scales of pay shall be allowed to enjoy pensionary benefit including dearness relief at par with the State Government employees. Maximum amount of gratuity shall be raised from Rs.60
