Dr. Anisur Rahaman vs The State Of West Bengal & Ors
2022 Latest Caselaw 1045 Cal

                      IN THE HIGH COURT AT CALCUTTA
                        Constitutional Writ Jurisdiction
                                Appellate Side

Present :-   Hon'ble Mr. Justice Md. Nizamuddin

                              W.P. A No. 9745 of 2021
                               Dr. Anisur Rahaman
                                               Vs.
                               The State of West Bengal & Ors.

      For the Petitioner              :- Mr. Sakti Pada Jana, Adv.
                                         Mr. Subhajyoti Das, Adv.


      For the Respondent No. 5        :-   Mr. Avisekh Prasad, Adv.
                                           Ms. Sreetama Neogi, Adv.
                                           Ms. Ankita Dey, Adv

      For the State                   :-   Mr. Malay Kumar Singh, Adv.
                                           Mr. Raja Ram Banerjee, Adv.

      Judgment on                     :-   08.03.2022


   MD. NIZAMUDDIN, J.

Heard learned Advocates appearing for the parties.

Petitioner has filed this Writ Petition being aggrieved by inaction on the part

of the respondent teacher-in-charge/Headmaster of the School namely Mitra

Institution (Main), Kolkata, in issuing 'No Liability Certificate' in favour of the

petitioner and sending the same to State Education authority concerned for the

purpose of disbursement of pensionary benefit as per the Pension Payment

Order (PPO) dated 24th February, 2021 issued by District Inspector of School

and non payment of all retiral benefits to the petitioner.

Case of the petitioner in brief are as hereunder.

Writ Petitioner was appointed as the Headmaster of Mitra Institution (Main),

Kolkata on 14th May, 2004 and which was approved by the District Inspector of

Schools (SE) on 11th August, 2004 and he retired from his service on 30th June,

2020 and on 29th June, 2020 the Managing Committee of School unanimously

decided that the Assistant Teacher one Mr. Biplab Naha Biswas will be

appointed as Teacher-in-charge of the School and that the Teacher-in-charge

will issue 'No Liability Certificate' to the petitioner for the purpose of releasing

his pension and other retiral benefits. It is also the case of the petitioner that

while processing the pension papers before the State authorities concerned for

sanctioning the retiral benefits of the petitioner, the President of the School (in

absence of the Headmaster) issued 'No Liability Certificate' with the observation

that the petitioner had no liability to the School. After considering all the

relevant papers regarding service of the petitioner the State School authority

concerned issued pension payment order on 24th February, 2021 as appears at

Page 35 of the Writ Petition and in view of the aforesaid circumstances the

Teacher-in-charge/Headmaster of the School is duty bound to send on-line 'No

Liability Certificate' to the State Authority concerned which he failed to do in

spite of repeated request made by the petitioner from time to time and such

action of the Teacher-in-charge/Headmaster not issuing the 'No Liability

Certificate' in favour of the petitioner without initiating any disciplinary

proceeding on charge if any against the petitioner at this retired stage of his life

is causing infringement of his right to livelihood by denial of all retiral benefit

including pension after rendering service to the institution as Headmaster for

16 years.

Learned Advocate appearing on behalf of the respondent School Authority

submits that reason for not issuing the 'No Liability Certificate' is that the

petitioner has committed illegality and irregularity by appointing the Auditor

for audit of the School for the financial year 2017-18, 2018-19 and 2019-20

outside the Government empanelled Auditor which was beyond the official

power and function of the Writ Petitioner and the payment of fees to the

Auditor was made from the School fund. The respondent School Authority has

annexed a Memo/document to the supplementary affidavit-in-opposition

affirmed on 21st December, 2021 by the respondent Headmaster of the School,

issued by the Commissioner of School Education (SE) dated 15th September,

2021 which appears at Page 8 of the said supplementary affidavit-in-opposition

from which it appears that the Commissioner of School Education has issued

the said memo addressing to the Headmaster of the School expressing inter

alia his observations and opinions which are as follows:

"1. Headmaster of a School is not authorized to appoint Auditor for the purpose of audit of his own school. It is the prerogative of the Commissioner of School Education, West Bengal.

2. The action of the Headmaster in auditing school accounts through his own appointed auditor is to fulfil his vested interest and hence the Commissioner of School Education, West Bengal is not in a position to ratify this action.

3. The Headmaster himself has to bear the cost of this audit. In case it is paid out of school-fund then school authority has to recover the amount from him.

4. While issuing No Objection/No Liability Certificate in favour of Dr. Anisur Rahaman, Retired Headmaster of the School, the amount so spent out of the school fund has to show as liablility recoverable from terminal benefit of Dr. Anisur Rahaman, Retired Headmaster of the School, if he is unable to recoup such expenses to the school."

On perusal of the aforesaid letter dated 15th September, 2021, issued by

the Commissioner of School Education, West Bengal, it appears that the main

and only allegation against the petitioner is about unauthorised appointment of

Auditor for the purpose of audit of the School which according to him is

prerogative of the Commissioner of School Education and that the then

Headmaster/petitioner will have to bear the cost of the said audit which was

paid from the School fund and has to be recovered from him before issuing No

Objection/ No Liability Certificate in favour of the petitioner. Apart from this no

other allegation has been referred or indicated against the petitioner in the

aforesaid letter/Memo of the Commissioner of School Education, West Bengal

for refusal to issue No Objection/ No Liability Certificate in favour of the

petitioner.

Learned Advocate appearing for the respondent School Authority in

defending their action submits that there is allegation of defalcation of School

fund against the petitioner during the tenure of his service. When he was asked

by this Court that was any disciplinary proceeding initiated against the

petitioner either before his retirement or at the time of retirement or even after

his retirement is any disciplinary proceeding pending against the petitioner to

which he admitted that no such disciplinary proceeding was ever initiated at

any point of time against the petitioner or is pending. Respondent submits that

there is allegation of misuse of fund of the School by the petitioner and that the

respondent Headmaster of the School has lodged an FIR against the petitioner

on 7th December, 2021 for the first time much after retirement of the petitioner

on 30th June, 2021 and after filing of the instant Writ Petition which was filed

on 13th April, 2021 and even much longer after affirming the affidavit-in-

opposition by the respondent/Teacher-in-charge/Headmaster of the School

which was affirmed on 13th July, 2021 wherein there is no whispering or story

of lodging of any such FIR dated 7th December, 2021 against the petitioner.

After fixing the date of final hearing of the Writ Petition on 16th August, 2021

by the order of this Court dated 29th July, 2021, respondent/Teacher-in-

charge/Headmaster by way of supplementary affidavit affirmed on 21st

December, 2021 annexed the copy of the purported FIR dated 7th December,

2021 against the petitioner while the petitioner had already retired on 30th

June, 2020 that is almost one and a half year after the retirement of the

petitioner while the Teacher-in-charge who has lodged the FIR was appointed

and taken charge of the School as Teacher-in-charge on 29th June, 2020.

Considering the aforesaid facts as appears from record and particularly the

aforesaid letter/Memo of the Commissioner of School Education dated 15th

September, 2021, from which it appears that except the allegation of

unauthorised appointment of the Auditor by the petitioner during the period in

question all the allegations and filing of FIR much after filing of Writ Petition

are afterthought since at no point of time any disciplinary proceeding was

initiated against the petitioner either during tenure of his service or even at the

time of filing affidavit-in-opposition by the respondent Headmaster which was

affirmed on 13th June, 2021 there was no existence of such FIR against the

petitioner till such time. This matter after completion of affidavit was taken by

me from time to time from 1st July, 2021, but at no point of time the

respondent School authority came up with any document against the petitioner

relating to initiation or pendency of any disciplinary proceeding nor about

lodging of any FIR against the petitioner and no such story of lodging of FIR

was made out in the affidavit-in-opposition filed by the respondent or even

after filing of affidavit-in-reply by the petitioner affirmed on 27th July, 2021. It

seems that the respondent Teacher-in-charge/Headmaster having personal

grudge against the petitioner and with a vindictive attitude and malafide and

just to cover up his fault and to victimise the Writ Petitioner for coming to this

Writ Court has lodged the said FIR for the first time on 7th December, 2021

after completion of affidavits and after fixation of date of final hearing of this

Writ Petition by making desperate attempt to make out a new case in the

supplementary affidavit-in-opposition beyond the scope of its affidavit-in-

opposition.

It appears that the School Authority/respondent nos. 5 & 6 have annexed to

their affidavit-in-opposition the documents showing total amount of payment of

Rs. 24,000/- made to the said Auditor M/s MC Som Enterprises Chartered

Accountant for audit of the School for the financial years 2016-17 and 2017-

18, for the period 31st March, 2017 - 31st March, 2018, for the year 2019, and

for the period 31st March, 2019 to 31st March, 2020, which according to the

respondents was unauthorised.

Petitioner in support of his contention on the issue of withholding of

pension and other retiral benefit of the petitioner by the respondents after his

retirement in absence of any disciplinary proceeding, has relied on a decision of

this Court in the case of Md Sayed -vs- State of West Bengal & Ors. reported in

(2017) 2 CAL LT 129 (HC) and relevant paragraphs 26 - 29 of the said case are

quoted hereunder:

"26. In the present case, the allegations against the petitioner has never been proved. That apart, no disciplinary action was contemplated against the petitioner during his service tenure. Only an enquiry was sought to be made and on the basis of that no conclusion has yet been reached. Therefore, the authorities are not authorized by law to withhold the pension of the petitioner in view of the aforesaid scheme. As held by the Hon'ble Apex Court in the case of Durgadas Mukhopadhyay (supra) this Court is of the considered view that rules are provided for disciplinary proceedings and the same can be initiated against an employee but if a teacher retired, there is no question of removal or dismissal after retirement. At the same time, there is no scope for contemplating any disciplinary proceeding against a teacher after his retirement nor a departmental proceeding can be initiated against a retired teacher with retrospective effect. In the present case, no departmental proceeding was initiated nor was there any scope to inflict any punishment upon the teacher. A departmental proceeding can continue so long as the employee is in service unless any rule is cited on behalf of the State respondents that even a departmental proceeding can continue after the retirement of an employee the decision to withhold the pension of the employee as a whole or in part is without any basis. In this case, complaint was made before the District Inspector of Schools (S.E.), Malda, before the employee concerned retired, but nothing contemplated as per rules and the employee was allowed to retire. That being so, the action purported to have been taken by the District Inspector of Schools (S.E.), Malda, against the retired teacher is not sustainable in law. This Court hold that according to paragraph 19(5) of the Pension Scheme of 1981 it is abundantly clear without any ambiguity that the eligibility and the entitlement to pension can be reduced or withheld on certain grounds and certain provisions have been provided therein for determining as to whether the pension should be withheld or in a case it can be reduced. As indicated above, in case any charge of corruption against the employee, pension can be denied but such corruption has to be proved which is mandatory under the aforesaid scheme.

Undisputedly, rather admittedly, there was no disciplinary proceeding against the present petitioner. Allegations and/or charges of corruption levelled against him cannot be automatic and in absence of proof no penal action can be taken against the

petitioner by way of withholding pension and other retiral benefits. Since there is no provision under the aforesaid scheme, for contemplating any disciplinary proceeding against the retired employee, the attempt made by the concerned authorities to withhold pension is contrary to law and liable to be set aside.

27. As held by the Division Bench in the case of Gour Kanti Samanta (supra), this Court is of the view that once the petitioner was allowed to retire without initiating any disciplinary proceeding or initiating any criminal proceeding, the retirement dues of the petitioner cannot be withheld. The Division Bench, in the aforesaid case while passing the judgment, considered the decision in the case of State of West Bengal - Vs. - Haresh Chandra Banerjee & Ors reported in (2006) 7 SCC 651 wherein it was held that pension is not a bounty payable on the sweet-will and the pleasure of the Government. Pension is a condition of service of the employee concerned. Pension and pensionary benefits, which are in nature of deferred remuneration or for service already rendered, have to be released and paid as per the rules. Pension and other pensionary benefits due and payable to an employee are the property of the employee within the meaning of Article 300A of the Constitution of India. No person can be deprived of pension and/or pensionary benefits which are his property, except by authority of law.

28. In view of the observations made above, this Court is of the view that the concerned authorities are not entitled to withhold pension and other retiral benefits of the petitioner. This Court, therefore, directs the respondent no.5, the District Inspector of Schools (S.E.), Malda, to issue clearance certificate in favour of the petitioner within a period of four weeks from the date of communication of this order and the respondent nos.5 and 6 are directed to pass necessary orders for making payment of arrear salaries and other retiral benefits to the petitioner within a further period of six weeks from the date of issuing of clearance certificate.

29.Since there are serious allegations against the petitioner about the financial irregularities involving Madrasah fund which was, in fact, paid from the Government Exchequer and is part of public money and inasmuch as the authorities initiated enquiry against the petitioner to reveal the truth but could not be able to give a complete shape, the State authorities will be entitled to initiate independent appropriate proceeding against the petitioner if allegation of financial irregularities and/or misappropriation of

money could be proved through such proceedings. The State authorities shall also be entitled to recover the defalcated Government fund, if any. State authorities shall also be entitled to initiate proceeding after proper enquiry against not only the Headmaster/petitioner but also against such other persons against whom materials would be revealed as regards misappropriation of public money and commission of criminal breach of trust."

Considering the facts and circumstances of the case as appears on perusal

of relevant records available including Writ Petition, affidavit-in-opposition and

reply and supplementary affidavit, submission of the parties and the judgment

relied upon by the petitioner as referred above it appears to this Court that

inaction on the part of the respondents Teacher-in-charge/Headmaster of the

School concerned in issuing 'No Liability Certificate' in favour of the petitioner

till date in spite of repeated request after his retirement on 30th June, 2020 for

disbursement of his pensionery benefit as per Pension Payment Order (PPO)

dated 24th February, 2021 and withholding of all retirement benefits by the

respondent without proof of any allegation or charge and without holding any

enquiry or initiating any disciplinary proceeding against the petitioner during

tenure of his service and allowing him to retire and in view of admitted facts as

appears from record that even on date no any disciplinary proceeding is

pending against the petitioner against the aforesaid allegation, action of the

respondent School Authorities concerned not issuing 'No Liability Certificate'

and withholding of all retirement benefits of the petitioner including pension, is

unjust, unfair, malafide, arbitrary and illegal.

In view of the discussion made above this Writ Petition is allowed by passing

the following order/directions:

1) Without going into the merit or legality of the Memo dated 15th

September, 2021 issued by the Commissioner of School Education, West

Bengal from which only allegation appears against the petitioner is payment of

audit fee from School Fund amounting to Rs. 24,000/- to unauthorised

appointed Auditor for the purpose of audit of School relating to relevant period

which was the prerogative of the Commissioner according to him and was

recoverable from the terminal benefit of the petitioner and accordingly

considering the aforesaid Memo dated 15th September, 2021, which has been

annexed to the supplementary affidavit by the respondents, petitioner is

directed to pay to the School Authority the aforesaid cost of audit amounting to

Rs. 24,000/- within two weeks from date of intimation by the respondent

Headmaster of the School concern about the mode of such payment, that is, by

Cheque/Bank draft etc. and in whose name/authority such payment is to be

made and such intimation of mode of payment will be communicated by the

Headmaster of the School concerned to the petitioner within a week from the

date of communication of this order;

2) Headmaster of the School concerned within a week from the date of

receipt of the aforesaid payment of audit cost from the petitioner, shall issue

and send 'No Liability Certificate' in favour of the petitioner to the Treasury

Officer concerned Barasat - II, through the District Inspector of School (SE),

Kolkata with intimation to the petitioner, for the purpose of disbursement of

pensionary benefit to the petitioner as per Pension Payment Order (PPO) dated

24th February, 2021 and all other post retirement arrears.

3) The Director of Pension Provident Fund/respondent no. 2 and District

Inspector of School (SE), Kolkata/respondent no. 3, within 6 weeks from the

date of receipt of such 'No Liability Certificate' from the Headmaster of the

School shall pass appropriate orders for payment of pension and all other

arrears/retiral benefits in favour of the petitioner.

This Writ Petition being WPA No. 9745 of 2022 stands disposed of

accordingly with no order as to costs.

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

parties upon compliance with all requisite formalities.

(Md. Nizamuddin, J)