Subhendu Chakraborty & Ors vs The Kolkata Metropolitan ...
2022 Latest Caselaw 8575 Cal

           IN THE HIGH COURT AT CALCUTTA
                CONSTITUTIONAL WRIT JURISDICTION
                         APPELLATE SIDE

Present:
The Hon'ble Justice Hiranmay Bhattacharyya


                                W.P.A. 5302 of 2019

                          Subhendu Chakraborty & Ors.
                                       Vs.
                      The Kolkata Metropolitan Development
                                Authority & Ors.


Appearance:
For the petitioners        : Mr. Sarder Amjad Ali, Adv.
                             Mr. Masum Ali Sarder, Adv.

For the KMDA               : Mr. Satyajit Talukdar, Adv.


For the State              : Ms. Sudipa Roy, Adv.

Judgment reserved on       : 28.11.2022.
Judgment Delivered on : 21.12.2022.


Hiranmay Bhattacharyya, J.:


         1. This Writ petition is at the instance of some serving as well as

            some      retired   employees    praying   for   a   writ   of   Mandamus

            commanding the respondents to allow them to switch over to the

General Provident Fund-cum-Pension Scheme from the

Contributory Provident Fund and Gratuity Scheme.

2. The Writ petitioners were members of the Contributory Provident

Fund scheme maintained by the Calcutta Metropolitan

Development Authority presently known as Kolkata Metropolitan

Development Authority (for short "KMDA"). Calcutta Metropolitan

Development Authority Employees (Death-cum-Retirement Benefit)

Regulations, 1988 (for short "the 1988 Regulation") was

promulgated with the previous approval of the State Government

giving opportunity to the employees to exercise option to switch

over to the GPF cum Pension Scheme from CPF Scheme . A notice

dated 06.11.1990 was issued inviting the willing employees to

exercise option within a period of six months. Time to exercise

such option was extended from time to time and the last of such

extension was up to February 28, 2022. The petitioners exercised

their option to switch over after the stipulated time limit. The writ

petitioners allege inaction on the part of the respondent authorities

and have filed this writ petition.

3. Sardar Amjad Ali, learned Senior Counsel for the petitioners

contended that the writ petitioners could not exercise their option

within the stipulated time frame due to communication gap. He

further contended that the KMDA approved the proposal for fresh

options and sought for approval of the Finance Department of the

State of West Bengal which, according to him, is not necessary. He

submitted that the writ petitioners have been discriminated

against as several other employees, who submitted their option

belatedly, was allowed to switch over to the GPF-cum-Pension

Scheme. He concluded by submitting that the writ petitioners are

willing to refund the total amount received on account of CPF

along with approved interest if the event they are allowed to switch

over to the GPF-cum-Pension Scheme.

4. Mr. Talukdar, learned Advocate for KMDA contended that since a

few number of employees, who could not exercise their option

within the stipulated time frame, prayed before the authority for

extension of time to allow them to switch over, a proposal for

inviting fresh option was placed before the concerned authority.

After a thorough deliberation, KMDA approved the proposal for

inviting fresh option for conversion from CPF to GPF-cum-Pension

Scheme subject to approval of the Finance Department,

Government of West Bengal. He further contended that the KMDA

forwarded the copy of the resolution along with other relevant

documents to the Special Secretary to the Government of West

Bengal. He submitted that the KMDA duly replied to the queries

made by the Government but KMDA did not receive any intimation

from the Government.

5. Ms. Sudipa Roy, learned Advocate representing the State referred

to a letter dated 17.12.2018 which has been annexed to the

affidavit -in-opposition filed by the respondent no. 5 and

contended that the KMDA did not comply with the direction to

resubmit the proposal along with documents for which the Urban

Development and Municipal Affairs Department could not record

views in the matter.

6. Heard the learned Advocates for the parties and perused the

materials placed.

7. Record reveals that the 1988 Regulations was approved by the

Governor, State of West Bengal. The said Regulation, which was

notified on 9th August, 1990, was given a retrospective effect from

the 1st day of January, 1986.

Clause 6 of the 1988 Regulations provided for exercise of option by

the employees of KMDA to come under 1988 Regulations. Clause 6

reads as hereunder:

"6. Exercise of option-

(1) An employee who retired on or after the 1st January, 1986

and who is in service and is willing to come under these

regulations shall exercise an option in writing in Form A

within six months from the date of issue of the notice in this

behalf from the Authority and furnish his photograph and

present himself at the time of option.

Provided that in the case of an employee who is on leave or on

deputation or on foreign service or under suspension on the

date of the notice in this regard, the said option shall be

exercised within six months from the date of his return from

such leave, deputation, foreign service or on resumption of

duty after suspension, as the case may be.

Provided that in the case of an employee who is on leave or on

deputation or on foreign service or under suspension on the

date of the notice in this regard, the said option shall be

exercised within six months from the date of his return from

such leave, deputation, foreign service or on resumption of

duty after suspension, as the case may be.

(2) If the option is not exercised by any individual employee

within six months as aforesaid, it will be deemed that he has

not opted for coming under these regulations.

Provided that if an employee who was in service on the date

of issue of the aforesaid notice dies before exercising option

within the said period of six months he shall be deemed to

have opted for the contributory Provident Fund.

(3) The option once exercised shall be final."

8. Clause 6 of the said Regulations provided for a time limit within

which the option to come over to the said regulations is to be

exercised. It was further provided that if no option is exercised, it

will be deemed that he has not opted for coming over to the

Regulations. It was also stated that option once exercised shall be

final.

9. Thereafter a notice was issued on November 6, 1990 inviting the

willing employees to exercise their option within 6 months from the

date of issuance of such notice. Record further reveals that

subsequently the time for exercising option was extended from

time to time and lastly the Chief Executive Officer, KMDA issued a

notice dated 18.01.2002 thereby extending the last date for

exercising option till 28th February, 2002.

10. The Regulations further provide that in case the employees

who retired on or after 01.01.1986 and received benefits under the

Contributory Provident Fund-cum-Gratuity Scheme, they shall

have to refund the employer's share of Contributory Provident

Fund and Gratuity/retiring gratuity along with interest as payable

at the prescribed rate.

11. The writ petitioners claim that though they are willing to

switch over to the 1988 Regulations by making a refund of the

amount together with interest as stipulated in the scheme but they

could not exercise the option due to communication gap.

12. It is evident from the records that the proposal for

consideration for extension of time for submission of option for

coming over to the GPF-cum-Pension Scheme from CPF Scheme

was placed for consideration in the meeting of the Authority. In the

181st meeting of the Authority held on 10.08.2016, the Authority

approved the proposal for inviting fresh option towards conversion

from CPF to GPF-cum-Pension scheme subject to approval of the

Finance Department, Government of West Bengal.

13. The said meeting was presided over by the Hon'ble Minister-

in-charge, Municipal Affairs and Urban Development Department,

Government of West Bengal. However, the Principal Secretary to

the Government of West Bengal, Finance Department, who is also

the member of KMDA, was absent for reasons best known to him.

14. It further appears from the record that the KMDA was asked

by the Commissioner, Government of West Bengal to reply to some

queries which were raised after consulting with the Finance

Department.

15. It is evident from the records that KMDA duly replied to the

queries raised by the State Government. Financial implication for

conversion from CPF to GPF was also indicated in the letter which

was forwarded to the UD&MA Department of the Government of

West Bengal. Since, all the relevant materials have been forwarded

by the KMDA to respondent no. 5, this Court fails to understand

as to what prompted the said respondent to issue the letter dated

December 17, 2018 directing resubmission of documents.

16. It is however, admitted by the respondent no. 5 in Affidavit-

in-opposition that the CPF Gratuity Regulation as prevailed in

KMDA was never revised in line with the payment of Gratuity Act

and the employees who retired under CPF Scheme only received a

maximum amount of Rs. 50,000/-.

17. It appears from the record that a Coordinate Bench of this

Court by an order dated 17.06.2019, directed the learned Counsel

to take specific instruction from the Principal Secretary of the

Urban Development Department as well as the Department of

Finance about the fate of the proposal forwarded by KMDA for

extension of time for conversion from CPF to GPF. In spite of

issuance of directions to file affidavit-in-opposition as well as grant

of several extensions of time for filing such affidavit, no affidavit -

in-opposition is forthcoming from the end of the Finance

Department, Government of West Bengal. The complete silence on

the part of the Finance Department at almost every stage is not

appreciated by this Court. This, Court, therefore, holds that the

Finance Department does not have any valid reasons for

withholding the approval sought for by the KMDA.

18. It is evident from the records that most of the employees

barring a few, who were governed under the CPF-cum-Gratuity

Scheme, were allowed to switch over to the 1988 Regulations.

Some of them were allowed to switch over pursuant to the time

limit stipulated as per the Notification while others were allowed to

switch over by allowing extension of time on several occasions. It

appears from the record that only 39 such employees are left for

switch over and the petitioners fall within such 39 employees.

19. The petitioners are similarly situated with the other

employees who were allowed to switch over to the GPF-cum-

Pension Scheme from the CPF Scheme by extending the time to

exercise option. The petitioners, therefore, cannot be treated

differently. Furthermore, the respondents are also willing to

refund the amount together with interest as per the scheme at the

prescribed rate. Thus, the writ petitioners cannot be said to have

been benefitted by approaching KMDA to exercise option at a

belated stage as they have to pay interest at the prescribed rate on

the amount to be refunded. This Court is, therefore, of the

considered view that an opportunity is to be afforded to the

petitioners to exercise their option to switch over to the GPF-cum-

Pension Scheme i.e., the 1988 Regulations.

20. For the reasons as aforesaid, the writ petition stands allowed

by passing the following direction:

i) The Principal Secretary, Department of Finance, State of West

Bengal is directed to accord approval to the proposal forwarded

by the KMDA for inviting fresh option towards conversion from

CPF to GPF-cum-Pension Scheme as expeditiously as possible

but positively within a period of three weeks from the date of

communication of a server copy of this order and to

immediately intimate the KMDA accordingly through the Urban

Development and Municipal Affairs Department not later than a

week from the date of grant of such approval.

ii) Immediately upon receipt of such approval, KMDA shall give

opportunity to the petitioners and other similarly placed

employees to submit their option to switch over from CPF to

GPF-cum-Pension Scheme by issuing public notice in

newspapers having wide circulation in the State of West Bengal.

Sufficient time is to be allowed to willing persons to exercise

such option and to refund the employer's share of Contributory

Provident Fund and Gratuity/retiring gratuity along with

interest payable at the prescribed rate.

iii) KMDA shall issue public notice as directed under Clause (ii)

hereinbefore, as expeditiously as possible but positively within a

period of three weeks from the date of receipt of intimation

under Clause (i) hereinbefore.

iv) In the event such option is exercised, the writ petitioners shall

be entitled to the benefits of GPF-cum-Pension Scheme with

effect from the date such refund is made.

There shall be, however, no order as to costs.

Urgent photostat certified copies, if applied for, be supplied to the

parties upon compliance of all formalities .

(Hiranmay Bhattacharyya, J.)

(P.A.- Saurav)