Sitala Mandal (Chaudhuri) vs The State Of West Bengal & Ors
2022 Latest Caselaw 358 Cal

                          IN THE HIGH COURT AT CALCUTTA
                            Constitutional Writ Jurisdiction
                                    Appellate Side

Present :-   Hon'ble Justice Amrita Sinha


                                 WPA No. 964 of 2022

                              Sitala Mandal (Chaudhuri)

                                         Vs.
                           The State of West Bengal & Ors.


For the writ petitioner         :-    Mr. Sakti Pada Jana, Adv.
                                      Mr. Sourav Mitra, Adv.

For the State                   :-    Mr. Anirban Ray, Ld. GP
                                      Mr. Rezaul Hossain, Adv.

Heard on                        :-    28.01.2022

Judgment on                     :-    08.02.2022


Amrita Sinha, J.:-

       The issue to be decided in the present writ petition is whether an employee

will be entitled to receive pension on and from the date following retirement or from

the date of refund of the employer's share of contribution.


       The petitioner retired from service on attaining the age of superannuation on

30th November, 2011.


       In response to the notification published by the School Education

Department being No. 79-SE(L)/SL/5S-56/13(Pt-V) dated 13th June, 2014 issued in

compliance of the direction passed by the Hon'ble Special Bench of this Court in the

judgment dated 16th July, 2013 in the matter of District Inspector of Schools (S.E.),

Kolkata -vs- Abhijit Baidya the petitioner exercised option to switch over from CPF

to GPF and refunded the employer's share of contribution with interest and

additional interest on 3rd September, 2014.
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       Pension Payment Order was issued in favour of the petitioner with effect

from 3rd September, 2014, that is the date of refund of the employer's share of

contribution.


       The grievance of the petitioner is that Pension Payment Order was

erroneously issued on and from the date of refund of the employer's share of

contribution with interest and additional interest instead from the date following

retirement.


       According to the petitioner, pension ought to have been released on and from

the next date of retirement and not from the date of refund of the employer's share

of contribution.


       In support of the aforesaid stand the petitioner has relied upon the judgment

delivered by the Court in District Inspector of Schools (S.E.), Kolkata -vs-

Abhijit Baidya reported in 2013 (3) CHN (CAL) 711 and the judgment delivered on

30th September, 2019 by the Special Bench of this Court in the matter of Md. Abdul

Ghani -vs- State of West Bengal & Ors. (GA No. 64 of 2018, APOT No. 104 of

2006, APO No. 121 of 207, GA No. 627 of 2006, WP No. 1528 of 2002).


       The Court, in Abdul Ghani (supra), clarified that if an employee opted for

Pension-cum-Gratuity Scheme within the time framed in the notice dated 13th June,

2014 and also refunded the quantum of money that was notified, the employee shall

be entitled to be paid pension from the date following the date of retirement on

superannuation in accordance with the provision of the DCRB Rules.


       The petitioner submits that as the issue has been clarified by the Hon'ble

Special Bench that the employee is entitled to receive pension on and from the date

following the date of retirement, accordingly, the petitioner is entitled to receive

pension from the date following the date of retirement and not from the date of

refund of the employer's contribution.
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       The learned advocate representing the respondents opposes the prayer of the

petitioner.

It has been submitted that the said clarificatory judgment dated 30th

September, 2019 in the matter of Md. Abdul Ghani (supra) is applicable only in

respect of the pending writ petitions. The said clarification cannot be made

applicable in respect of the present petitioner as the writ petition of the petitioner

was not pending on the date the clarification was issued by the Hon'ble Special

Bench. It has been submitted that the benefit of the order cannot be enjoyed by the

fence sitters who did not approach the Court in proper time.

A point of estoppel has also been raised by the respondents. It has been

submitted that as the Court has already decided that the employee will be entitled

to receive pension from the date of refund, accordingly, the petitioners are estopped

from claiming pension from the date following their retirement.

It has been submitted that the petitioner will be entitled to receive pension

only from the date of refund of the employer's contribution and not prior thereto.

I have heard the submissions made on behalf of both the parties and have

perused the judgments relied upon by them.

The Court, in Abhijit Baidya (supra) in paragraph 77, laid down that if the

employee exercises option he shall be entitled to pension cum gratuity, in

accordance with law, with effect from the date refund is made.

In compliance of the direction passed in paragraph 76 of Abjijit Baidya's case

(supra), the State Government issued notification on 13th June, 2014 giving three

months' time to the employees to refund the employer's share of contribution with

interest and additional interest if the employee elects to switch over to Pension-cum-

Gratuity Scheme.

The petitioner refunded the employer's share of contribution along with

interest and additional interest within the time specified in the notification dated

13th June, 2014.

The Court, in Md. Abdul Ghani (supra) in paragraph 55, clarified that the

entitlement of pension will be from the date following the date of retirement in

accordance with the provisions of the DCRB Rules.

The submission of the State respondents that the clarification was applicable

only in respect of pending writ petitions appears to be a submission made in

desperation. It is a desperate attempt on the part of the State to not pay the

employees their legitimate dues.

The Court clearly clarified that there has been no curtailment in respect of

the right to receive pension from the date following the date of retirement as per the

DCRB Rules, but liability of the State Government to pay was deferred till such time

refund was made. According to the provisions of the DCRB Rules the employee is

entitled to receive pension on and from the date following his retirement. The

Special Bench laid down, in no uncertain terms, that the employee was entitled to

'pension cum gratuity in accordance with law', meaning thereby the DCRB Rules,

not from the date of exercising option or from the date of acceptance of option but

from the date following retirement.

In Md. Abdul Ghani (supra) the Court laid down that the Full Bench was

quite clear that payment of pension would be with effect from the date the refund is

made and not before, but the entitlement would relate back to the date of retirement

on superannuation.

The State ought to appreciate that as the employee refunded the amount of

employer's share of contribution along with interest and additional interest

calculated till the date of refund, accordingly, the State cannot negate the claim of

the employee to receive pension on and from the date following retirement.

The direction of the Court regarding adjudication of pending writ petitions

came to be passed as the State adopted a very constricted approach in interpreting

the direction passed in paragraph 77 of the judgment in Abhijit Baidya (supra).

It can never be that the benefit of a judgment passed in rem will be restricted

only in respect of pending writ petitions and the same will not be applicable in

respect of similarly situated persons.

The respondents have failed to appreciate that the Special Bench in Abhijit

Baidya (supra) in paragraph 76 clearly specified that opportunity to be given to all

the petitioners and other employees similarly situated to submit option to switch

over to pension cum gratuity by issuing public notice.

The expression "employees similarly situated" clearly means that any

employee similarly situated as the writ petitioners in Abhijit Baidya (supra) will get

the benefit of the judgment passed by the Court. The petitioners being similarly

situated will certainly be entitled to reap the benefits of the aforesaid judgment.

There cannot be two interpretations to the direction in paragraphs 76 and 77

of Abhijit Baidya's case. The respondents are relying upon paragraph 59 of the

judgment in Md. Adbul Ghani (supra) but, for obvious reasons, are overlooking the

direction passed by the Court in paragraph 76 of Abhijit Baidya (supra).

The issue of estoppel also does not come to the aid of the State in any

manner whatsoever. It is settled law that there can be no estoppel against law.

According to the prevailing Rules, an employee is entitled to receive pension from

the day following the date of superannuation. The entitlement to receive pension

being settled by the Special Bench in the earlier judgments, the State is estopped

from raising the same issue all over again.

To obviate future complications the Special Bench issued the clarification in

Abdul Ghani (supra) making it clear with regard to the entitlement of the employee

to receive pension from the date following the date of retirement on superannuation

in accordance with the provisions of the DCRB Rules.

If the submission of the State is accepted then it will lead to a situation

where each and every retired employee who has acted in accordance with the

notification dated 13th June, 2014 will have to approach Court for getting relief in

terms of the Special Bench judgment in Abhijit Baidya (supra) and the clarificatory

judgment in Abdul Ghani (supra).

The respondents ought to appreciate that not paying pension to the

pensioners from the date following their superannuation even though the

pensioners refunded the employer's share of contribution with interest and

additional interest will amount to unlawful enrichment by the State by depriving the

pensioners of their rightful dues. The State has received interest as well as

additional interest for the period the employee enjoyed the employer's contribution,

and the moment the said share is refunded, the employee becomes entitled to

receive pension on and from the date following his date of superannuation.

The contention of the State, accordingly, cannot be accepted by the Court.

In view of the above, instant writ petition is disposed of by directing the

Director of Pension, Provident Fund and Group Insurance and the concerned

Treasury Officer to verify the records, and in the event, it is found, that the

petitioner exercised option and refunded the employer's share of contribution within

the time specified in the notification dated 13th June, 2014, then steps shall be

taken to issue Revised Pension Payment Order in favour of the petitioner with effect

from the date following the date of retirement on superannuation and to release the

pension in accordance with the Revised Pension Payment Order. Such steps shall be

taken within a period of twelve weeks from the date of communication of a copy of

this order. Payment shall positively be released immediately upon issuance of the

Revised Pension Payment Order.

Affidavit of service taken on record.

WPA 964 of 2022 is disposed of.

Urgent certified photo copy of this judgment, if applied for, be supplied to the

parties expeditiously on compliance of usual legal formalities.

( Amrita Sinha, J. )