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Synopsis

The Supreme Court on February 25, 2025, said that pensionary benefits cannot be denied to an employee unless there is a specific rule empowering the government to do so.

A bench of Justices B R Gavai and Prashant Kumar Mishra held that the woman appellant was entitled to a pension. The court reasoned that since her absence had been treated as extraordinary leave while regularizing her service, it could not be deemed unauthorised for the purpose of denying pensionary benefits.

Court further stated that the West Bengal government and other respondents could have denied her pension only if they had proven that she was unauthorisedly absent for the subject period and not by refusing to hold an inquiry against her.

"In our considered view, having once regularised her service during the period of absence by granting extraordinary leave, it cannot be held that the said period can be treated as break in service," the bench said.

Appellant Jaya Bhattacharya approached the apex court against dismissal of her writ petition by the Calcutta High Court over nonprosecution and subsequent dismissal of her review and recall applications.

The apex court decided to examine the issue on merits, even though the writ petition was not adjudicated on merits and the prayer in the civil appeals was for restoration of writ petition, considering the long pendency of the lis for about 25 years.

As per the facts of the matter, on March 20, 1986, the appellant was appointed and joined as L D Assistant in the Office of Block Development Officer, Jhargram.

While she was posted in the Office of Sub-divisional Officer, Jhargram, she remained absent from duty for 107 days and thereafter again from June 29, 1987 to July 12, 2007. She submitted a complaint on February 17, 1987, that she was restrained from signing the attendance register. However, on June 15, 1987, the SDO issued a show cause notice to her as to why disciplinary proceedings should not be initiated against her for her unauthorised absence. 

The appellant submitted her reply and also wrote to the Secretary, Board of Revenue, complaining about the denial of joining.

She preferred a writ petition, which was later transferred to the State Administrative Tribunal, West Bengal. The Tribunal disposed of the matter on November 24, 2000, closing the proceedings on the ground that since no departmental proceedings had been initiated, there was nothing to be adjudicated. This order of the tribunal was challenged before the high court which set aside the tribunal’s order, remitting the matter back to the tribunal.

On remand, the tribunal passed an order on December 01, 2003 directing the Collector, Midnapur (West) to cause a departmental proceeding in respect of the allegations that though she joined the office and signed the attendance register she was not allowed to perform her duties and that she was not paid salary for May, 1987 onwards.   

It was further directed that she should be given an opportunity of hearing and appropriate order be passed in respect of her payment of salary and in respect of allowing her to discharge her duties within a period of four months.

The appellant challenged the tribunal's second order through a writ petition, which was disposed of with directions to the respondents or authorities to allow her to resume her duties forthwith, preferably within 48 hours of receiving the communication. She was required to discharge her duties if reinstated, and any legitimately due and payable salary should be paid in accordance with the tribunal's order. However, the respondents were not precluded from taking lawful action against the appellant as deemed appropriate. 

On November 19, 2011, the appellant’s unauthorised absence from June 29, 1987 to July 12, 2007 were treated as extraordinary leave and service was regularised as per Rule 175 and Rule176 (4) of the West Bengal Service (Death-cum-Retirement Benefit) Rules, 1971 which provided that a government employee on extraordinary leave is not entitled to any leave salary. 

The appellant was informed on June 07, 2011, that she had been allowed to join back on July 13, 2007, and her pay had been refixed. However, she was not entitled to leave salary, etc, during the period of absence.      

Upon the appellant's fresh plea before the tribunal for grant of pension and other retirement benefits, the main issue was whether she fulfilled the requisite criteria to be entitled to pension in terms of the relevant rules for the purpose. 

The tribunal concluded that the extraordinary leave granted to her being not on any of the grounds listed under Rule 28A of the West Bengal Service (Death-cum-Retirement Benefit) Rules, 1971, the period of extraordinary leave allowed to her could not be considered as qualifying service to be entitled to pension/family pension as stipulated in Government Order of February 25, 2009, hence the order refusing pension was fully justified.

The appellant approached the high court, which dismissed her writ petition for want of prosecution.

On examining the matter, the apex court said, "What is discernible from the record is that despite Tribunal’s order of December 01, 2003 directing the Collector to cause a departmental inquiry in respect of the appellant’s allegations to the effect that though she joined the office and signed the attendance register she was not allowed to perform her duties and was not paid salary from May, 1987 onwards, no such inquiry was ever conducted by the respondents/authorities.

It further noted that even though the order passed by the respondents-authorities on May 19, 2011, that her unauthorised absence was treated as extraordinary leave and her service was regularised was not challenged subsequently, the fact remained that the appellant was condemned unheard without subjecting her to any departmental inquiry despite the tribunal’s order.

"Any observation by the Tribunal or the High Court in subsequent proceedings that the appellant failed to demonstrate that she was prevented from performing her duties would not enure to the benefit of the respondents for the simple reason that the said fact could have been established either for or against the appellant only in a duly constituted departmental inquiry," the court said.

The respondents’ failure to conduct an inquiry as per tribunal’s order cannot shift the burden on the appellant to prove that she was prevented from working, the court added.

Thus, the bench said, "In the peculiar facts and circumstances of this case, we are of the considered view that the appellant would be entitled for pension."

The court, accordingly, directed the respondent authorities to finalise the appellant's pension within a period of three months.

However, the court clarified that the appellant would not be entitled to any arrears.

Case Title: Jaya Bhattacharya Vs State of West Bengal & Ors