Calcutta High Court (Appellete Side)
Binata Das vs The State Of West Bengal & Ors on 3 September, 2024
Author: Amrita Sinha
Bench: Amrita Sinha
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :- Hon'ble Justice Amrita Sinha
WPA 13281 of 2023
Binata Das
Vs.
The State of West Bengal & Ors.
For the writ petitioner :- Mr. S.P. Pahari, Adv.
For the State :- Mr. Tapan Kumar Mukherjee, Sr. Adv.
Mr. Parikshit Goswami, Adv.
Heard on :- 19.08.2024
Judgment on :- 03.09.2024
Amrita Sinha, J.:-
The reasoned order dated 14th December, 2017 passed by the District
Inspector of Schools (Primary Education) Paschim Medinipur rejecting the
prayer of the writ petitioner to grant family pension in her favour is
impugned in the present writ petition.
The petitioner is the widow of a deceased primary school teacher. The
husband of the petitioner joined service on 4th February, 1955. On account
of illness he remained absent from school from February, 1970 to 12th
January, 1971. Thereafter he was not in a position to attend school as his
health did not permit him to do so. The teacher expired on 9th June, 2009.
The widow claimed family pension relying on the memorandum of the
School Education Department dated 1st November, 2010. Her prayer stood
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rejected on the ground that the teacher submitted his resignation from
service on 12th January, 1971 after remaining absent from school from
February, 1970 to 12th February, 1971. The petitioner is aggrieved by the
same.
The petitioner submits that the memorandum of the year 2010
extends pensionary benefit to the employees or their widows who retired or
died-in-harness prior to 1st April, 1981 if the concerned employee rendered
at least one year approved qualifying service in the West Bengal Non-
Government Aided Educational Institution. The financial benefit is to be
given with effect from 15th June, 1990 or from the date of application for
pension or family pension, whichever is later. Those employees who retired
prior to introduction of the 1981 Pension Scheme but rendered more than
one year approved qualified service but less than ten years approved
qualified service were brought within the ambit of the subject scheme.
It has been submitted that the teacher was not in a position to attend
school after January, 1971 after rendering more than fifteen years of service.
As the scheme has been introduced as a social security measure,
accordingly, the petitioner ought to be allowed the benefit of the scheme.
The petitioner relies upon the judgment delivered by a Hon'ble Single
Judge of the High Court of Judicature of Madras on 19th April, 2022 in WP
No. 41096 of 2016 (T.K. Thanigaivel vs. The Managing Director & Ors.)
wherein the Court held that in case of resignation by the Government
servant due to medical reason, there cannot be any forfeiture of service.
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Prayer has been made to set aside the impugned order of rejection and
to allow family pension in favour of the petitioner.
The prayer of the petitioner has been vehemently opposed by the State
respondents. Affidavit in opposition and a supplementary affidavit in
opposition has been filed by the District Inspector of Schools (PE) Paschim
Medinipur annexing copy of the earlier writ petition filed by the petitioner
being WP No. 6740 (W) of 2018.
Reliance has been placed on the Bengal (Rural) Primary Education
Act, 1930 and the Rules to provide for the condition of appointment of
teachers in primary schools maintained by District School Boards as well as
fixation of their salaries referred to in Clause (g) of sub-section (1) of Section
23 and particularly notification no. 1493- Edn. dated 25th July, 1940 which
lays down that a teacher continuously on leave for more than twelve months
shall be deemed to be no longer in service.
It has been submitted that the petitioner has admitted that her
husband did not join school after 12th January, 1971. On account of
unauthorized leave or absence in service for more than twelve months, a
teacher is deemed to be no longer in service; hence, the teacher cannot be
held to be eligible to receive pension. As the employee did not receive
pension, accordingly, his family cannot receive family pension except in
died-in-harness cases.
The teacher concerned expired long after he discontinued service. The
petitioner cannot get the benefit of receiving pension under the died-in-
harness category either, as the teacher remained alive till 2009 i.e, long after
he actually stopped attending school.
It has been submitted that the memorandum of 2010 saw the light of
the day long after the death of the teacher. The petitioner does not satisfy
the eligibility criteria to receive pension in accordance with the said
memorandum and, accordingly, there is no question of grant of family
pension in her favour.
Reliance has been placed on the West Bengal Recognized Non-
Government Educational Institution Employees (Death-cum-Retirement
Benefit) Scheme, 1981 wherein there is a provision for exercising option to
avail the benefit of pension-cum-gratuity or to avail the contributory
provident fund benefit. It has been submitted that the teacher did not avail
the benefit of the Scheme of 1981.
It has been argued that the writ petition is liable to be dismissed on
the ground of suppression of material facts. The widow petitioner
deliberately suppressed that her husband tendered resignation. On account
of resignation from service, the teacher lost his right to claim pension. The
widow, accordingly, cannot receive any family pension.
Reliance has been placed on the decision of the Hon'ble Supreme
Court in the matter of K. Jayram & Ors. Vs. Bangalore Development
Authority & Ors. reported in (2022) 12 SCC 815 wherein the Court held
that the jurisdiction of the High Court under Article 226 of the Constitution
of India is extraordinary, equitable and discretionary and it is imperative
that the petitioner approaching the writ Court must come with clean hands
and put forward all facts before the Court without concealing or suppressing
anything. A litigant is bound to state all facts which are relevant to the
litigation. If he withholds some vital or relevant material in order to gain
advantage over the other side, then he would be guilty of playing fraud with
the Court as well as with the opposite parties which cannot be
countenanced. The fact of submission of resignation by the teacher has been
suppressed by the petitioner making the writ petition liable to be dismissed.
Respondents pray for dismissal of the writ petition.
I have heard and considered the rival contentions of the parties.
It has not been disputed by the respondents that the teacher had put
in more than fifteen years of service prior to his discontinuation. The widow
admits the fact of discontinuation of service by her husband.
According to the authority, the teacher tendered his resignation in
January, 1971. The aforesaid fact of resignation by the teacher has been
brought to the fore by the authority relying upon documents submitted by
the petitioner in her earlier writ petition. The authority has not been able to
place any document from their end that the resignation, as allegedly
submitted by the teacher, was accepted.
Till resignation tendered by the employee is accepted by the employer,
the employer-employee relationship continues and is not severed. Nothing
has been brought on record to suggest that the resignation was accepted
leading to severance of the employer-employee relationship. On the contrary,
it appears that, it is the petitioner who brought the fact of resignation before
this Court.
In such a situation can the widow be accused of non discloser of
relevant fact or can the widow be blamed for not bringing to light the
relevant fact of the subject case? Therefore, the allegation of suppression
cannot be permitted to stand.
The next ground taken by the authority to reject the prayer is that the
petitioner does not qualify the eligibility criteria to receive widow pension
either in terms of the DCRB Scheme, 1981 or the Act of 1930 or the
memorandum dated 1st November, 2010.
It has been submitted that there is no provision to extend pension in
favour of a widow of a teacher who resigned from service. The petitioner
could have sought for pension as per the aforesaid scheme/memorandum
had the teacher been in service or died-in-harness. None is the case here.
The memo relied upon by the petitioner came into effect after the death of
the teacher and as such the same cannot be made applicable in case of the
petitioner.
The memorandum dated 1st November, 2010 clearly records that the
department received several orders passed by the High Court directing the
respondent authorities to extend pension/family pension under the Scheme
of 1981 to the petitioner who served the West Bengal Recognized non-
Government Aided Educational Institution and who retired or died-in-
harness prior to 1st April, 1981.
As a social security measure, the Governor was pleased to extend the
pensionary benefit under the DCRB Scheme, 1981 to such widows of those
employees who retired or died-in-harness prior to 1st April, 1981, if the
concerned employee rendered at least one years' approved qualifying service
in the West Bengal Non-Government Aided Educational Institution.
Admittedly, on 1st April, 1981 the husband of the petitioner was not in
service. The widow has, in unclear terms, disclosed in her representation
that her husband, due to health reasons, was not in a position to attend
school after February, 1971. By that time the teacher concerned had already
put in more than fifteen years of service.
According to the Scheme of 1981, family pension is payable to the
members of the family of an employee who dies while in service after
rendering at least one years' service. There was a provision for expressing
willingness to opt for the benefit under the said Scheme. The teacher never
expressed his willingness to join the subject Scheme of 1981.
The primary requirement to avail the benefit of the subject
memorandum is putting in at least one years' approved qualifying service.
The teacher concerned had served the institution for more than fifteen years
but because of ill health he was not in a position to continue his service till
the date of his superannuation. The Scheme of 1981 was introduced after
the teacher discontinued service and the memorandum of 2010 came into
existence after the teacher expired.
In all probability, had the teacher been in good health, he would have
certainly continued his service till his superannuation. Had the teacher been
in service he would have availed the benefit of the 1981 Scheme. In this case
the teacher neither got the benefit of the 1981 Scheme nor had the scope to
avail the benefit of the memorandum of 2010.
The teacher was issueless and his widow is currently about 85 years
of age as disclosed in her affidavit. It will be highly improper if she is not
allowed to avail the benefit of the 2010 memo. Since the 2010 memorandum
was introduced as a social security measure, there is no reason as to why
such social security will not be allowed in favour of the petitioner.
The petitioner will not gain anything or get any advantage out of
suppressing the alleged fact of resignation of her husband. In K. Jayaram
(supra) the Court held that for withholding relevant material in order to gain
advantage, the litigant would be guilty of playing fraud. In the instant case,
the fact of alleged resignation of her husband was disclosed by the petitioner
herself. It is not that the authority discovered the fact of resignation. The
letter of resignation has not been brought on record. It was the duty of the
authority to produce record to show whether the resignation, if any, was
accepted or not. Despite opportunity granted to the authority, no document
could be produced to suggest that the alleged resignation was accepted.
Argument was advanced that even if the resignation letter is not on
record as the teacher did not attend school for more than twelve months he
is deemed to be no longer in service. In the Act of 1930 there is no provision
for forfeiture of service benefit in case of resignation from service. In fact,
there is no provision for tendering resignation under the Act has been placed
before the Court.
The Act mentions about discontinuation from service. The service of
the teacher abruptly came to an end because of his ill health. All service
benefit of the teacher stopped from the date of his discontinuation. No case
has been made out that after the teacher stopped attending school he joined
any other job,profession or business. It is not the case that the teacher was
employed elsewhere and had a different source of earning. It is also not the
case that the teacher deliberately did not attend school.
The widow consistently submits that due to health reasons her
husband could not attend school. Such fact/submission has not been
denied or disputed by the authority. On the contrary the authority relies on
the letter of the petitioner and admits the fact of discontinuation, however,
by way of resignation. The service life of the teacher came to a sudden halt
because of such unforeseen forced discontinuation. Though the teacher was
literally alive, but for all practical purposes he was dead in the service
records. In such a situation it has to be construed that the teacher officially
died in harness even though he actually died much later.
In such circumstances the widow ought to be considered for extension
of the benefit of the memorandum of 2010 in the died-in-harness category.
Denying such benefit would be contrary to the social security measure, the
very reason for introduction of the 2010 memo. Such explanation has to be
adopted keeping in mind that neither the teacher nor his widow got any
benefit in terms of the 1981 Scheme. Grant of pension as social security
measure is a beneficial legislation and it is the bounden duty of the
authority to identify such beneficiary and the Court is to ensure that the
benefit actually reaches the beneficiary. The issue has to be dealt with an
open mind and not with a predetermined mindset to reject the claim of the
widow.
In the matter of Thanigaivel (supra) the Court passed order upon
consideration of the Tamilnadu Pension Rules where there is a provision
relating to forfeiture of past service upon resignation. In the case at hand,
service rules governing the teacher does not contain any provision for
forfeiture of past service. Though there is a provision for dismissal or
discharge from service but the same cannot be made without previous report
from the District Inspector of Schools. Accordingly, the aforesaid precedent
does not help the petitioner.
In view of the above, the impugned order of the District Inspector of
Schools (PE) Paschim Medinipur dated 14th December, 2017 is liable to be
set aside and is, accordingly, set aside. The instant writ petition is disposed
of by directing the District Inspector of Schools (PE) Paschim Medinipur to
grant the benefit of the memorandum dated 1st November, 2010 in favour of
the petitioner on and from the date of her applying for pension i.e, on and
from 12th April, 2017 the day when the petitioner posted her prayer for
availing the benefit of family pension.
The District Inspector of Schools shall make the necessary calculation
at the earliest but positively within a period of thirty days from the date of
communication of this order. The District Inspector of Schools shall forward
all documents to the Director, Pension Provident Fund and Group Insurance
immediately thereafter so that Pension Payment Order is issued in favour of
the petitioner latest within a period of forty five days from the date of
forwarding the calculation by the District Inspector of Schools. It is,
however, made clear that the petitioner will not be entitled to receive any
interest on the amount so payable to her.
The respondent authorities shall strictly adhere to the timeline
mentioned hereinabove in view of the fact that the petitioner is of advanced
age and she should actually enjoy the benefit that is meant for her.
The writ petition stands disposed of.
No costs.
Urgent certified photocopy of this judgment, if applied for, be supplied
to the parties or their advocates on record expeditiously on compliance of
usual legal formalities.
(Amrita Sinha, J.)
