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2019 Supreme(Cal) 951
IN THE HIGH COURT OF CALCUTTA
T.B. Radhakrishnan, Dipankar Datta, Joymalya Bagchi, JJ.
Md. Abdul Ghani - Appellants
Vs.
State of West Bengal and Ors. - Respondent
G.A. No. 464 of 2018
Decided On : 30-09-2019
For the Appellant :Bikash Ranjan Bhattacharya, Sr. Advocate, Subir Sanyal, Kamalesh Bhattacharya, Sakti Pada Jana, Subhrangsu Panda, Baishali Ghosal and T. Dhali
For the Respondents:Kishore Datta, Advocate General, Abhratosh Majumder, Addl. Advocate General, Joytosh Majumer, Govt. Pleader, T.M. Siddique, Sr. Govt. Advocate, Paritosh Sinha and Nilotpal Chatterjee
The High Court has the power to clarify its own orders in order to remove any ambiguity or error. The employees are entitled to pension from the date of their retirement and not from the date of refund.
Headnote:
The Full Bench of the Calcutta High Court, in a judgment dated July 16, 2013, had directed the State Government to give an opportunity to all the petitioners and other employees similarly situated to submit an option to switch over to Pension-cum-Gratuity by issuing a public notice in at least four newspapers having wide circulation in the State. The employees were given three months' time period to exercise the option and the amount to be deposited by each employee who elects to switch over to Pension-cum-Gratuity was to be specified. The employees were entitled to Pension-cum-Gratuity in accordance with law with effect from the date the refund was made. The State Government implemented the said order by issuing a notification dated June 13, 2014, in terms of paragraph 76 of the said order. However, the State Government interpreted paragraph 77 of the said order to mean that the pension would be payable with effect from the date the refund was made and not from the date of retirement. This led to a number of writ petitions being filed by the employees challenging the State Government's interpretation of paragraph 77. The High Court, in the present case, was considering an application for clarification of the said order filed by one of the employees, Md. Abdul Ghani. The applicant contended that the State Government's interpretation of paragraph 77 was incorrect and that he was entitled to pension from the date of his retirement and not from the date of refund. The State Government, on the other hand, contended that the application was not maintainable and that the Full Bench's order was clear and unambiguous. The High Court, after considering the rival contentions, held that the application was maintainable and that the Full Bench's order was ambiguous. The Court clarified that the employees were entitled to pension from the date of their retirement and not from the date of refund. The Court also directed the State Government to pay the arrears of pension to the employees with interest.
Fact of the Case:
The Full Bench of the Calcutta High Court, in a judgment dated July 16, 2013, had directed the State Government to give an opportunity to all the petitioners and other employees similarly situated to submit an option to switch over to Pension-cum-Gratuity by issuing a public notice in at least four newspapers having wide circulation in the State. The employees were given three months' time period to exercise the option and the amount to be deposited by each employee who elects to switch over to Pension-cum-Gratuity was to be specified. The employees were entitled to Pension-cum-Gratuity in accordance with law with effect from the date the refund was made. The State Government implemented the said order by issuing a notification dated June 13, 2014, in terms of paragraph 76 of the said order. However, the State Government interpreted paragraph 77 of the said order to mean that the pension would be payable with effect from the date the refund was made and not from the date of retirement. This led to a number of writ petitions being filed by the employees challenging the State Government's interpretation of paragraph 77.
Finding of the Court:
The High Court, after considering the rival contentions, held that the application was maintainable and that the Full Bench's order was ambiguous. The Court clarified that the employees were entitled to pension from the date of their retirement and not from the date of refund. The Court also directed the State Government to pay the arrears of pension to the employees with interest.
Issues: 1. Whether the application for clarification of the Full Bench's order was maintainable? 2. Whether the Full Bench's order was ambiguous? 3. Whether the employees were entitled to pension from the date of their retirement or from the date of refund?
Ratio Decidendi: 1. The High Court held that the application for clarification of the Full Bench's order was maintainable. The Court relied on the Supreme Court's decision in M.V. Elisabeth v. Harwan Investment and Trading (P) Ltd., (1993) 2 SCC 433, which held that the High Courts continue to enjoy the same jurisdiction as they had immediately before the commencement of the Constitution, as stated in Article 225, and subject to their own Rules, exercise of their manifold jurisdiction, unless barred, is unlimited. The Court also relied on the Supreme Court's decision in M.M. Thomas v. State of Kerala, (2000) 1 SCC 666, which held that the High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it, the High Court has not only the power, but a duty to correct it. 2. The High Court held that the Full Bench's order was ambiguous. The Court noted that paragraph 77 of the order stated that the employees were entitled to Pension-cum-Gratuity in accordance with law with effect from the date the refund was made. However, the Court also noted that the Full Bench had earlier held that the employees were entitled to a reduced age of superannuation of 60 years and enhanced amount of gratuity. The Court held that these two provisions were contradictory and that it was unclear from the order whether the employees were entitled to pension from the date of their retirement or from the date of refund. 3. The High Court held that the employees were entitled to pension from the date of their retirement and not from the date of refund. The Court relied on the Full Bench's earlier holding that the employees were entitled to a reduced age of superannuation of 60 years and enhanced amount of gratuity. The Court held that this meant that the employees were entitled to all the benefits of retirement, including pension, from the date of their retirement.
Final Decision: The High Court clarified that the employees were entitled to pension from the date of their retirement and not from the date of refund. The Court also directed the State Government to pay the arrears of pension to the employees with interest.
JUDGMENT :
Dipankar Datta, J.
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, C.J. (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. v. 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. 60,000/- to R
