Haru Das & Ors vs The State Of West Bengal & Ors
2021 Latest Caselaw 2754 Cal

12-04-2021
 ct no. 13
  Sl.10
   sp

                          WPA 11725 of 2020
                      (Through Video Conference)

                             Haru Das & Ors.
                                -Versus-
                  The State of West Bengal & Ors.

             Mr. P.S. Deb Barman,
             Mr. M. Nazar Choudhury,
             Mr. Sagar Singh
                                             ....for the petitioners

             Mr. Tarun Kumar Das
                              ...for the respondent no. 6

Mr. Kishore Datta, ld. A.G., Mrs. Chaitali Bhattacharya, Mr. Subhendu Roy Chowdhury ...for the State respondents

Exception taken by the petitioners to the

report of the Secretary, Department of

Information and Cultural Affairs, Government of

West Bengal is taken on record.

The sum and substance of the writ

petition is that the writ petitioners are the

employees of "Mahajati Sadan" at Calcutta

which is a Grant-in-Aid organization under the

Department of Information and Cultural Affairs,

Government of West Bengal. The financial and

administrative control of the "Mahajati Sadan"

vested jointly between the Department of

Information and Cultural Affairs, Government of

West Bengal and the Kolkata Municipal

Corporation. It is possible that the control of the

KMC in the "Mahajati Sadan" may have come

down or over the years.

The petitioners in the earlier round of

litigation had been promised by the State and

the Management of the "Mahajati Sadan" that

they will be afforded pension as given to the

State Government employees. It is nobody's case

before this Court that the petitioners are

employees of the State Government. The Death-

cum-Retirement Benefit (DCRB) Rules of 1971

and its subsequent amendments do not directly

apply to the petitioners. However, the DCRB

Rules of 2009 for the employees of "Mahajati

Sadan" has been framed by the Department of

Information and Cultural Affairs and the same

is yet to be notified in the Gazette.

Counsel for the petitioners submit that

the notification in the Gazette should not stand

in the way of implementation of the said Rules

as is being followed in respect of all autonomous

bodies under the State of West Bengal.

Be that as it may, the Director, Ex Officio,

Joint Secretary, Department of Information and

Cultural Affairs, Government of West Bengal has

affirmed an affidavit and has annexed, a report

prepared by the Secretary, Department of

Information and Cultural Affairs, Government of

West Bengal dated February 8, 2021. In the said

report, the Secretary has in some substantial

detail addressed the hindrance in the process of

giving effect to the aforesaid DCRB Rules for the

"Mahajati Sadan", 2009.

This Court is not inclined to accept that

non-publication of Gazette notification would

stand in the way of the Pension for the

petitioners as similar Rules have been

implemented across the State notwithstanding

non-publication in the official Gazette. Other

issues raised however require to be addressed.

a) It is submitted by the Learned AG that

the Additional Director of Cultural who

himself is a Government employee

acting as and pension sanctioning

authority under Rule 5 (d) of the DCRB

Rules, 2009 may not be proper. The

Government has proposed that the

Additional Director of Cultural should

be replaced with the Secretary,

"Mahajati Sadan" as the pension

disbursing authority. It is ordered that

until formal publication of the 2009

DCRB Rules in Gazette, the Secretary,

"Mahajati Sadan" shall be deemed the

pension sanctioning and disbursing

authority for the employees of

"Mahajati Sadan".

b) For the purpose of giving effect to the

DCRB Scheme of 2009, the General

Provident Fund is required to be

created by the Department and draft

rules are required to be framed and

sent to the Finance Department.

It is ordered that the General Provident

Fund be created in terms of the existing Rules of

the State Government in this regard forthwith.

The State may not, in fact, need to frame any

independent Rules for the aforesaid purpose for

the time being.

The Secretary, "Mahajati Sadan" shall

cause accounts to be opened for its employees

for GPF and pension accounts. The CPF

contributions of the employees shall be operated

by a 'Trust' to be comprised of the President,

Secretary and a nominee representative of the

employee of the Mahajati Sadan. The

Administrative Department of the "Mahajati

Sadan" shall be responsible for opening of the

said accounts. The contribution of the

employees of the State, which is being

maintained in the form of CPF, would be

converted into the GPF account under control of

the said Trust for the disbursement of pension

of the employees.

The Secretary, Department of Information

and Cultural Affairs, Government of West

Bengal and the Secretary of the "Mahajati

Sadan" may also jointly take a decision as to

whether the source of funds and/or the

intermediary for the aforesaid purpose, in place

of the Trust should be the State Government or

the LIC or any other similar reputed

organization.

Any clarification or lacuna in the

implementation of the aforesaid pension to the

employees of "Mahajati Sadan", shall be

addressed by reference to the Rules of the State

Government particularly, the DCRB Rules of

1971 or any such similar Rules, memorandum

or circular.

Let the pension to the employees of the

"Mahajati Sadan" be released and the process

therefor be commenced and completed within a

period of 5 months from the date

communication of a copy of this order.

The aforesaid procedure is only suggestive

and indicative. The object and purpose is to

ensure release of pension to the employees of

"Mahajati Sadan". It shall be deemed only as an

ad hoc measure.

The State Government may within the

aforesaid period or immediately thereafter,

frame appropriate Rules that shall not be in

conflict with the existing Rules for pension or

DCRB Scheme for State Government employees.

It is however made clear that the

employees of "Mahajati Sadan" are, in fact, not

employees of the State Government.

The implementation of the aforesaid order

shall vest jointly on the Secretary of the

"Mahajati Sadan" and the Secretary,

Department of Information and Cultural Affairs,

Government of West Bengal and the Secretary,

Department of Finance, Government of West

Bengal who shall coordinate with each other in

this regard.

With the aforesaid directions, the writ

petition is disposed of.

There shall be no order as to costs.

Urgent photostat certified copy of this

judgment, if applied for, be given to the parties upon

compliance of all formalities.

(Rajasekhar Mantha, J.)