Calcutta High Court (Appellete Side)

Sri Tarun Bandopadhyay vs The State Of West Bengal And Ors on 26 August, 2022

                  In the High Court at Calcutta
             Constitutional Writ Jurisdiction
                             Appellate Side


The Hon'ble Justice Lapita Banerji

                          W.P.A. NO.3039 of 2017

                        Sri Tarun Bandopadhyay
                                   Vs.
                 The State of West Bengal and Ors.

     For the Petitioner            : Mr. Prosenjit Mukherjee,
                                     Mr. Arghya Kamal Das


      For the Respondent No.3 : Mr. Achyut Basu,

Mr. Somen Bose, Ms. Sonam Basu, Ms. Punam Basu,

Hearing concluded on : 29th July, 2022

Judgment on : 26th August, 2022

1. Lapita Banerji, J.:- The petitioner's grievance in this Writ Petition

being W.P.A. No. 3039 of 2017 arises out of the failure on the part of

the respondent No.3/the Principal of Berhampore College to process

the documents necessary for payment of retiral benefits of the writ

petitioner. The failure on the part of the Principal to send the entire

documents along with the service book to the respondent No.4/the

Director of Pension, Provident Fund and Group Insurance for release

of pensionary benefits.

2. The facts in the Writ Petition are as follows:

(a) The petitioner retired as an Assistant Professor of

Mathematics from Berhampore College on January 31, 2016.

He has continuously rendered his service from January 4,

1982.

(b) Despite rendering 34 years of continuous satisfactory service,

his post-retirement benefits were withheld, due to the

conduct/action on the part of the respondent No.3/the

Principal.

(c) After waiting for a long period, on September 6, 2016, the

petitioner wrote to the respondent No.2/the Director of Public

Instructions (DPI) Higher Education Department for release of

the retirement benefits of the petitioner.

(d) In reply to the letter, to the DPI (Supra) the respondent

No.3/Principal by a purported communication dated

September 23, 2016 vide DC/126/2016-17 informed the

petitioner that despite several requests to submit the

accounts of the Directorate Of Distance Learning (DODL),

Kalyani University, the petitioner did not submit the same.

The petitioner was one of the Coordinators of DODL,

Behrampore College since the initiation of the course.

According to the respondent No.3, the petitioner should have

cleared all its liabilities before his retirement.

(e) Immediately, upon receipt of the purported communication,

(Supra) the petitioner by a letter dated October 5, 2016,

replied to the same. It would be evident from the said

communication, that since 2011-12 the petitioner was not a

Member of the DODL Committee any more. He was also

never the Treasurer of the same. It was the respondent

No.3/Principal who was the Chairman of the said Committee

from the very beginning till the date of the letter. The

petitioner was never ever called upon to give any accounts as

the same was to be maintained by the Chairman/respondent

No.3 and not the petitioner. Unfortunately, for reasons best

known to the respondent No.3, the petitioner's service book

was not released even after 9 months of his retirement. As a

result thereof, the petitioner neither received his pension nor

provident fund nor gratuity nor leave encashment.

(f) No reply was given to the petitioner to his letter dated

October 5, 2016.

(g) The petitioner had no alternative but to file the instant Writ

Petition on February 6, 2017.

3. When the Writ Petition came up for hearing, it was noted by the

Hon'ble Coordinate Bench that despite Affidavit of Service no one

represented the respondent No.3 nor the College in issue on several

dates. The State respondent was represented and filed written

instructions on behalf of the State Authority pursuant to as earlier

Order of the Court dated February 22, 2017. From the said written

instructions, it would be evident that the petitioner retired on January

31, 2016. The petitioner sent a letter to the respondent No.2 on

January 9, 2017 requesting release of his pensionary benefits. Upon

receipt of the letter, the Respondent No.2 immediately sent a letter

dated February 2, 2017 vide Memo No.136/C/Pen to the respondent

No.3/Principal requesting him to furnish the pension papers of the

petitioner at an early date. Respondent No.3 was also required to

provide valid reasons as to why the pension papers were not

submitted 8 months prior to the petitioner's retirement in terms of

D.P.I.'s Circular No.1050-C-Pen dated July 22, 2016 and also why he

would not be held responsible to pay interest on the delayed payment

of gratuity etc.

4. Upon receipt of such instructions, the respondent No.3 vide a

covering letter dated February 20, 2017 submitted the service book of

the petitioner along with the necessary documents to the respondent

No.2. Interestingly, no reason was provided as to why the

Principal/respondent No.3 withheld the pensionary documents of the

writ petitioner. Furthermore, Respondent No. 3 failed to give any

cogent reason as to why interest should not be charged for delayed

payment of gratuity etc.

5. The said papers were received by the concerned Section of the

respondent No.2's office on March 7, 2017. On examination of the

papers submitted by the College Authorities/respondent No.3, the

respondent No.2 submitted the same vide Memo No.341-C-PCN dated

April 10, 2017 on April 13, 2017 to the Office of the Accountant

General, West Bengal for taking necessary action.

6. On April 24, 2017 the Hon'ble Coordinate Bench agreed with the

submissions made by the Learned Counsel appearing on behalf of the

State and held that there was no intentional delay/laches on the part

of the State Authorities in processing the pension papers of the

petitioner. The Court directed the respondent No.4/Director of

Pension as well as the Accountant General, West Bengal to take

expeditious steps but not later than 4 weeks from the date of the

communication of the Order for releasing of the arrears and regular

pensionary benefits to the petitioner. Furthermore, given the conduct

of the respondent No.3, the Hon'ble Coordinate Bench directed the

Accountant General and the respondent No.4 to deduct half of the net

salary of the respondent No.3/Principal of the College in issue for the

month of May, 2017 and pay in favour of the petitioner towards

compensation and costs. Leave was given to the petitioner to add the

Accountant General as a party respondent.

7. The respondent No.3 challenged the said Order of the Hon'ble

Coordinate Bench dated April 24, 2017 in an Intra Court Appeal being

MAT 976 of 2017. In the said Appeal the direction for deduction of

half of the net salary of the respondent No.3 was set aside since he

was not invited to explain his stand by way of an affidavit. The

appellant was given an opportunity to file an affidavit before the

Single Bench. The Appeal was disposed of with the following

directions:

"The writ petition shall be considered afresh by the regular Bench on the limited point as to whether the appellant was at fault for not processing and furnishing the pension papers to the appropriate authorities so as to facilitate disbursal of pension immediately after the respondent no.1 retired.

Since we are remitting the matter back to the learned Judge, it would also be appropriate to request the learned Judge to consider the question of payment of leave encashment benefits, if at all admissible to the respondent no.1. The reason for this request is that the respondent no. 1 in the writ petition had prayed for 'entire retirement benefits' which would also obviously include leave encashment benefits, if at all the same were admissible, but in respect thereof no direction was made."

8. The Writ Petition being W.P.A No. 3039 of 2017 was heard by this

Bench on several dates and the same was considered along with the

affidavits filed by the parties.

9. Mr. Mukherjee, Learned Counsel appearing for the petitioner,

submitted that there was no valid reason for delayed processing of the

retiral benefits of the petitioner. He argued that, with mala fide intent

the retiral dues were withheld by the respondent No.3.

10. Pursuant to the previous Order dated April 24, 2017, retiral benefits

were disbursed except the leave encashment benefits and the amount

awarded as compensation/costs.

11. He submitted that as per the Government guidelines of Death-cum-

Retirement Benefit (DCRB) scheme for West Bengal Non-Government

College Teachers, it was incumbent that the pension papers along

with all the documents mentioned should be submitted to the Pension

Sanctioning Authority i.e. the Director of Public

Instructions/respondent No.2, three months prior to the actual

retirement of the employee concerned, for sanction of the pensionary

benefits. The respondent No.3 has acted in clear violation of the said

guidelines without any valid/legitimate reason. It was only on

September 23, 2016, more than 9 months after the retirement of the

petitioner and that too in reply to the petitioner's request dated

September 6, 2016 for release of the pensionary benefits, he was

intimated that due to some purported failure to provide accounts

during his tenure in the DODL Committee, his pension papers were

not processed. Such a stand of the respondent No.3 was arbitrary,

illegal and taken with mala fide intent and was also in colorable

exercise of power. Furthermore, despite Order of the Coordinate

Bench passed on April 24, 2017, the respondent No.3 issued a "No

Liability Certificate" as late as October 18, 2017.

12. Mr. Mukherjee on behalf of his client prayed for the leave encashment

benefits along with 10% interest for delayed payment of gratuity, leave

encashment and other retiral benefits along with the compensation

allowed by the Hon'ble Single Bench in terms of the Order dated April

24, 2017.

13. Mr. Basu, appearing for the respondents, vehemently argued that the

only question that can be considered by this Bench at present relates

to leave encashment benefits to the petitioner. The issue with regard

to costs/compensation to the petitioner was already settled by the

Hon'ble Division Bench. Since the Hon'ble Division Bench had set

aside the part of the Order dated April 24, 2017 relating to

compensation/costs, the same was not open for adjudication before

this Court.

14. Mr. Basu reiterated the stand taken in the Affidavit-in-Opposition and

argued that since the petitioner was a part of the DODL Committee

since its inception at the College in issue, he was liable to submit the

accounts for the same before his retirement. Several requests were

made to him for rendition of such accounts but despite such requests

the petitioner failed to submit the accounts before his retirement.

15. Having considered the rival submissions of the parties and materials

on record, this Court finds that:

(i) The writ petitioner has rendered 34 years of uninterrupted

service as an Associate Professor of the College-in-issue, till his

retirement on January 31, 2016.

(ii) No disciplinary proceeding was pending against the writ

petitioner at the time of his retirement nor was any evidence

produced in respect of unsatisfactory performance on the part

of the writ petitioner.

(iii) There is nothing on record to show that any request was made

to the petitioner for rendition of accounts as a DODL

Committee Member prior to the purported written

communication dated September 23, 2016.

(iv) There is no denial in the Affidavit-in-Opposition affirmed by the

respondent No.3/Principal on December 18, 2017 to the

statement regarding the fact that the petitioner was released

from the Committee since 2011-12 and has not been a part of

the same till his retirement on January 31, 2016. There is also

no denial of the fact the respondent No.3 was a Chairman of

the said Committee at all material points in time and it was the

primary responsibility of the respondent No.3 to be in-charge of

the accounts and provide for the same.

(v) It is not lost upon this court that in suppression of the fact

that the writ petitioner ceased to be a member of the DODL

Committee since 2011-2012, allegations were raised against

him regarding his purported liability to furnish the accounts in

respect of the DODL Committee. Furthermore, no statement

was also made regarding the respondent No. 3 himself being

the Chairman of Committee till the petitioner's date of

retirement. Not even one document was produced whereby the

respondent No.3 or the college authorities asked the petitioner

to provide for the purported accounts prior to the date of his

retirement.

(vi) This court has no hesitation to hold that the allegation

regarding the purported liability of the writ petitioner is

arbitrary and smacks of malafide intention to harasse the writ

petitioner/retired professor from getting his post retiral

benefits.

(vii) The statements regarding several requests being made by the

respondent No.3 to the petitioner for providing the accounts

are only bald assertions and not even a single corroborative

document has been provided for the same.

(viii) The respondent No.3 by its written communication dated

February 3, 2017 released the service book of the petitioner

along with necessary documents to the D.P.I. He failed to

provide any explanation regarding the withholding of the

necessary documents along with the service book for release of

the pensionary benefits of the petitioner.

(ix) There was no explanation at all given by the respondent No.3

to the queries raised by the respondent No.2 by its Memo dated

February 8, 2017 regarding the non-submission of papers

eight months prior to the retirement of the writ petitioner along

with the issue of payment of interest to him.

(x) All the issues raised by the respondent No.2 against the

respondent No.3/Principal remained uncontroverted.

16. In the light of the discussions above, this Court holds that the Hon'ble

Division Bench clearly directed the Regular Bench to consider the

limited point as to whether the appellant/Principal was at fault for not

processing and furnishing pension papers to the Appropriate

Authorities to facilitate disbursal of pension of the respondent

No.1/writ petitioner/retired Professor.

17. This Court is also of the view that the Order dated April 24, 2017

merits no interference and the Accountant General/respondent No.5

along with respondent No.4 shall pay half of the net salary of the

respondent No.3/Principal of the College in issue for the month of

May, 2017 in favour of the petitioner towards compensation and

costs.

18. Since the respondent No.3 has no issues regarding the processing of

the leave encashment benefits of the petitioner, I direct the petitioner

to submit a calculation of leave encashment benefits to the College

Authorities/respondent No.3 immediately. The respondent No.3 will

take necessary steps for approval of the same but not later than 2

weeks from the date of submission of the same and forward to

respondent Nos.4 and 5 for necessary disbursement. I find that the

petitioner is also entitled to interest for belated processing and

furnishing of his pension papers in violation of the DCRB guidelines

(Supra) as discussed hereinabove, without any legally tenable reason.

The petitioner is entitled to 8% interest on the delayed payment of

gratuity and other pensionary benefits from the date of accrual till the

date of actual payment of the same, keeping in mind the fact that he

is senior citizen, as further compensation to the petitioner. The

calculation of the same will be provided by the petitioner to the

Respondent No.3. Half the net salary that was directed to be deducted

for the month of May 2017 will be included in the said calculation for

further compensation.

19. The said compensation will be paid by the respondent No.3 within a

period of 4 weeks from the date of the communication of this order.

In the event there is any default in payment of such interest, the same

will be deducted from the monthly salary of September, 2022 payable

to him by the respondent Nos.4 and 5 or the super-annuation benefits

as may be applicable.

20. From the Written Notes of Submission made on behalf of the

respondent No.3, I find that a point has been sought to be raised

regarding the integrity or appropriateness of this Court in

adjudicating the Writ Petition being W.P.A. No.3039 of 2017 since this

Bench is at present also sitting in Division Bench presided over by the

same Judge who passed the Order dated April 24, 2017 while sitting

in a coordinate jurisdiction.

21. The last point in the written notes of submission submitted by the

respondent of 3 reads as thus:

"The Hon'ble single Bench presided over by the Hon'ble

Justice Subrata Talukdar had passed the order dated

17.04.2017(correctly read as 24.04.2017) awarding costs

and compensation to the petitioner which was set aside by the

Hon'ble Division Bench by its order dated 24.11.2017.

Thereafter, your Lordship is now sitting with the Hon'ble

Justice Subrata Talukdar."

22. Such an issue was never raised before this Bench when the matter

was taken up for hearing and heard on various occasions.

23. After wasting precious judicial time this issue has been sought to be

raised by the respondent No.3 in its Written Notes of Submission.

Such a sharp practice is deprecated by this Bench.

24. This Court awards an additional cost of Rs.10,000/- to be paid by the

respondent No.3 to the High Court's Law Clerks Association within a

period of 4 weeks from date. In the event there is any default in

payment of such costs, the same will be deducted from the monthly

salary payable to the respondent No.3 for the month of September,

2022 by the respondent Nos.4 and 5 of the super-annuation benefits

and forwarded to the Registry of this Hon'ble Court for handing over