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2021 Supreme(Cal) 273
IN THE HIGH COURT AT CALCUTTA
AMRITA SINHA, J.
Bhagwan Singh – Petitioner
Versus
The State of West Bengal and Others – Respondents
W.P.O. No. 86 of 2019
Decided On : 24-08-2021
Advocate Appeared:
For the Petitioners: Mr. Sakti Pada Jana, Mrs. Ujani Pal (Samanta).
For the Respondents: Mr. Subhabrata Datta, Mr. Debashis Sarkar, Mr. Paritosh Sinha.
Point of law: In the absence of any material to show that the employees had the knowledge about the option that was called for, it would be totally unreasonable and irrational to deny the pensionary benefits under the Scheme.
Headnote:
Constitution of India - Writ Petition - According to petitioner he ought to receive gratuity at a higher rate and is also eligible to receive pension. The petitioner claims that he is entitled to receive retirement benefit under the General Provident Fund (Pension-cum-Gratuity Scheme) and he has been illegally and arbitrarily deprived from getting the benefit in terms of the aforesaid scheme - The gratuity of the petitioner was thereafter sanctioned in June 2014 - It was the duty of the College to forward the necessary documents of the employee to the sanctioning authority prior to his retirement so that the employee receives his retiral dues immediately upon his retirement.
Findings of Court:
It is highly improper and unjust of the employer to not submit the documents of the retiring employee to the concerned authority on time and forward the same three years after retirement. As held by the Supreme Court pension and gratuity are not bounty but valuable asset in the hands of the retired employees which are paid to them for the valuable service they have rendered during their service tenure. After nearly 32 years of service it is not acceptable that a paltry sum of Rs. 12,000/- only be sanctioned in favour of an employee as gratuity. The amount of gratuity payable to an employee on superannuation had, in the meantime, been enhanced to a considerable extent. There is no reason as to why the petitioner will not be extended the benefit of getting gratuity at the enhanced rated fixed by the Government.
Result: Petition disposed of.
JUDGMENT :
AMRITA SINHA, J.
1. The petitioner retired from service as Darwan of Calcutta Girls’ College, Kolkata on attaining his normal age of superannuation on 31st December, 2010. After his retirement a sum of Rs. 12,000/- only was sanctioned on account of Death-cum-retiring gratuity in accordance with Rule 41 of the West Bengal Non- Government College Teacher’s Death cum Retirement Benefit Scheme, 1973.
2. According to the petitioner he joined service in the college on 1st December, 1978 and he retired from service on 31st December, 2010 after rendering more than 32 years of service. He submits that Rs. 12,000/- is an extremely meagre amount which has been paid to him on account of his gratuity. According to him he ought to receive gratuity at a higher rate and is also eligible to receive pension. The petitioner claims that he is entitled to receive retirement benefit under the General Provident Fund (Pension-cum-Gratuity Scheme) and he has been illegally and arbitrarily deprived from getting the benefit in terms of the aforesaid scheme.
3. The petitioner relies upon a communication dated 12th April, 2017 by the Principal/Secretary of the College to the Director of Public Instruction wherein it has been mentioned that the Governing body of the College has intimated that from 2008 GPF and CPF both have been deducted from the salary of the petitioner and deposited in the Treasury. The letter mentions that the petitioner is ready to refund the CPF amount to the Government with interest till date so that he may receive pension in accordance with the GPF scheme. He relies upon his salary statement wherein it has been indicated that his pay has been revised under ROPA 1990 and ROPA 1998.
4. The revision of pay and allowances under ROPA 1990 is applicable in respect of the non-teaching employees of aided non-government colleges and the same is notionally effective from 1st January, 1985. Paragraph 17 of ROPA 1990 mentions that the teaching and non-teaching employees of aided/sponsored educational institution or organisation who opts for the revised scales of pay shall be allowed to enjoy pensionary benefits including dearness relief at par with State government employees. The maximum amount of gratuity shall be raised from Rs. 36,000/- to Rs. 60,000/-. According to the petitioner as his pay was revised in accordance with ROPA 1990 and ROPA 1998, he is entitled to enjoy pension including dearness relief and he is also entitled to a higher rate of gratuity.
5. The petitioner relies upon the Full Bench judgment of this Court in the matter of District Inspector of Schools (SE) Kolkata vs. Abhijit Baidya, 2013 (3) CHN (Cal) 711.
6. In Abhijit Baidya (supra) the Full Bench framed certain questions for determination of the Court. Question 5 as framed in paragraph 9 is whether the time limit fixed under the DCRB Scheme, 1981 to submit option can be extended in suitable cases? At the time of deciding the aforesaid issue the Court relied on the judgment delivered by the Hon’ble Supreme Court in the matter of B.K. Srinivasan vs. State of Karnataka, AIR 1987 SC 1059 and held that once the State Government decided the provisions in paragraph 13 of ROPA 1998 and paragraph 17 of ROPA 1990 required amendments, the employees who were to be governed by such amendments ought to have been notified directly and reliably of all changes and additions made to the original provisions by various processes so as to enable them exercise their option for pension-cum-gratuity, if they so wished, instead of binding them down to the option exercised under the DCRB Scheme, 1981.
7. The Court noticed that neither ROPA 1990 nor ROPA 1998 were published in the official gazette. The Court was of the opinion that the ROPAs in its original forms were required to be published along with the amendments.
8. While deciding the aforesaid case the Court also took into consideration the judgment delivered by the Hon’ble Supreme Court in the matter of Dakshin Haryana Bijli Vitran Niga
