Calcutta High Court
Basudev Tiwary vs The State Of West Bengal & Ors on 13 June, 2025
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Rai Chattopadhyay
WPO 420 of 2020
Basudev Tiwary
Vs.
The State of West Bengal & Ors.
For the Petitioner : Mr. Debdutta Basu
For the State Respondent : Mr. Sirsanya Bandyopadhyay
For the Respondent Nos. 2 to 6 : Mr. Soumya Majumder
: Mr. Niladri Bhattacharjee
: Ms. Deblina Chattaraj
Judgment on : 13.06.2025
Rai Chattopadhyay, J. :-
(1) The petitioner is a superannuated employee (tram driver No.
297/641), of the respondent No. 2/ West Bengal Transport Corporation
Limited, who has retired from the service with effect from October 31,
2018, afternoon. The petitioner is aggrieved with the order of the
Managing Director of the respondent Corporation [in short "the MD"],
dated June 26, 2020, that there is no scope for the petitioner to receive
pension option form at this stage and prayer as to the same has been
rejected thereby for two reasons. Being aggrieved, the petitioner has
filed the instant writ petition. The petitioner has sought for the relief
that he be released the pension upon completion of formalities,
including exercise of option, with 12% interest. The petitioner is
agreeable to refund the excess fund drawn as a non-object of pension,
in order to exercise his option for pension.
(2) Let the factual background of the case, as necessary to be dealt
with here be narrated in a nut-shell as here in below. Admittedly, the
petitioner has been a permanent employee of the respondent No.
2/Corporation. Admittedly, also that the petitioner has retired with
effect from October 31, 2018. According to the petitioner, in February
2005, when the petitioner was discharging duty at Tollygunge depot, he
underwent on medical leave with effect from February 14, 2005, due to
his illness. He thereafter moved to his native village at Bihar. Admittedly
also, that the petitioner could not join within a reasonable period of
time and approached the Authority for resumption of duty after being
recovered. In the intermittent period, the petitioner has time and again
contacted with the Authority, informing the same regarding his
continued ill health. However, allegedly in spite of his endeavour to
resume the duty after being recovered, he was not allowed to do that by
the respondent Authority.
(3) In the year 2001, the respondent/Corporation introduced pension
scheme for the employees. However, many of them, including the
petitioner could not respond to the scheme by filing option form then.
During the period of absence of the petitioner, the respondent had again
called for the option forms to be submitted by such employees, who had
not exercised the option earlier. The MD had issued an order on July
24, 2006, directing all the desiring employees to exercise option form by
July 31, 2006. It is the contention of the petitioner that being not able
to join in duty, due to non-cooperation by the respondent/Corporation
in allowing him to join in duty, neither he could gather the knowledge
regarding the letter of the MD dated July 24, 2006, nor could he
exercise his option by filing his option form with the authority to opt for
the pension within the said stipulated date. According to the petitioner
the chronology of events which followed thereafter should prompt the
Authority to treat the petitioner to be in continuous and uninterrupted
service with the respondent/Corporation. Therefore, according to the
petitioner, he would be eligible under the law to exercise the option form
and after due compliance with the formalities like refunding of the
excess amount drawn by him as having not opted for the pension, he
would be eligible for grant of pension.
(4) The petitioner has alleged that the respondent/Corporation has
kept him out of employment, only unauthorisedly, irrationally, and
illegally, in so far as during the entire period when he could not join
duty, neither any disciplinary proceeding was initiated against him nor
he has ever been issued with any suspension order or been granted
with the subsistence allowance, till the time this Court has interfered
with and directed the respondent to pay the subsistence allowance to
him. On the contrary, in spite of the petitioner having made several
endeavours to join in duty after his recovery, he has not been issued
any order for resumption of duty by the said respondent/Corporation
and thus has been illegally kept out of his employment, without
following the due process of law.
(5) In the meantime, in 2016 and 2019 the petitioner had filed two
writ petitions being WPA No. 867 of 2016 and WPA no. 238 of 2019
respectively. Pursuant to the order of the Court in 2016 writ petition, an
order dated May 18, 2017, was issued by the Deputy Managing Director
of the Corporation, directing the petitioner to resume duty. Vide the
order of the Court dated September 22, 2016, the petitioner was
granted subsistence allowance.
(6) That the 2019 writ petition was filed by the present petitioner
seeking relief that chargesheet against him dated September 23, 2015,
should be dropped consequent to his superannuation on October 31,
2018 and the petitioner should be paid with the salary from the period
April 27, 2015 to May 18, 2017, after adjustment of the subsistence
allowance paid to the petitioner during the said period of time.
Admittedly, during pendency of the said case, the Joint Managing
Director, upon hearing the petitioner on October 25, 2019 has directed
the chargesheet against the petitioner to be dropped. The petitioner was
also paid full salary from June 1, 2015, to May 18, 2017, after adjusting
the subsistence allowance already paid. Subsequently, the petitioner
has also been paid with the consequential benefit for the same period
that is June 1, 2015 to May 18, 2017.
(7) On this factual background, the petitioner has come up in the
instant writ petition that he should be granted the opportunity to
exercise option for pension and may be granted the pensionary benefit
upon refund of the excess amount drawn by him as an employee, not
having opted for pension.
(8) Mr. Basu has represented the writ petitioner. In his argument he
has demonstrated as to how and to what extent the petitioner has been
deprived of his rightful and legal claim as to the salary/subsistence
allowance/pension and has sought for the relief that the petitioner may
be allowed to exercise option for grant of pension to him. Mr Basu has
stated that after recovery from illness, the petitioner intended to join his
duty but has never been issued with an order for resumption of duty by
the Authority. That, neither the petitioner was allowed to join in duty
nor he was subjected to any disciplinary proceeding due to any alleged
misconduct like unauthorised absent. Even, no suspension order was
ever issued against the petitioner. It is stated that only due to the
intervention of this court, the petitioner was allowed to join in duties at
a belated period, vide letter dated May 18, 2017. That, by the order of
the Court, the petitioner was also granted the subsistence allowance. At
a very later stage, only, on September 23, 2015, a charge-sheet was
issued to the petitioner and was served through posts. The petitioner
received the same only in July 2016 and replied with his letter dated
June 18, 2016. That the disciplinary proceeding did not effectively
proceeded since thereafter till the retirement of the writ petitioner on
October 31, 2018. Even after his retirement the charge-sheet against
him was not dropped. Thereafter, only after intervention of this Court,
the Authority has dropped the same and paid the petitioner salary as
well as the consequential benefits for the relevant period of time, as
discussed above.
(9) According to Mr. Basu, the service of the petitioner has been
treated to be a continuous one by the Court and the benefits emanating
from a continuous service is therefore to be allowed to the writ
petitioner, by the respondent No.2/Corporation. It is submitted that
had the petitioner been allowed to resume his duty after recovery from
illness, he could have gathered knowledge about the pension scheme re-
introduced in 2006 and opted for the same. It is submitted that since
due to the purported inaction of the said respondent, not having
allowed the petitioner to join in duty in due course and the said
respondent, subsequently having directed the petitioner to resume duty
pursuant to the Court's order, as well as having released him the
subsistence allowance and the salary and consequential benefits, would
therefore be duty bound also to allow the petitioner to be benefited
under a beneficial scheme which came into force during this period of
the petitioner being kept out of employment unauthorisedly and
illegally, without following the due course of law.
(10) Mr. Basu has submitted that the rights of the petitioner to claim
the unpaid service benefits only have crystallised after dropping of his
charge-sheet vide order dated October 25, 2019. He has further
submitted that in the previous writ petitions by the present petitioner
there has not been any scope to raise the grievance and the prayer of
him, as has been made here in the instant case, the said reason as
stated above. He says further that the subject matter of the previous
writ petitions by the petitioner have been separate from the instant one.
In this regard he has made reference to the „Explanation-IV‟ of section
11 of the Civil Procedure Code, to say that the issues related in the
instant case being not the subject matter of consideration in the earlier
cases by the petitioner and not being directly and substantially in issue
therein, should not act as a bar for due consideration of the prayer of
the petitioner in this case. he has put the submitted that at this stage,
the respondent cannot come up with the contention and allegation of
unauthorised absence by the petitioner in so far as the said respondent
has never voluntarily proceeded in accordance with the law against the
petitioner at any point of time, he being a permanent employee of the
respondent and covered under the Rules governing the employees of the
respondent. The Rules were only made applicable in case of the
petitioner and a disciplinary proceeding was started on allegation
whatsoever, only after intervention of this Court and directions being
made that the petitioner should be allowed the subsistence allowance.
Therefore, according to the petitioner, at this later stage, the respondent
would not have any authority to again rely on the point of unauthorised
absence of the writ petitioner. Mr. Basu seeks that the writ petition
maybe allowed by allowing the prayer of the petitioner as made therein.
(11) According to the respondent/Corporation, which is represented
by Ms. Chattoraj learned advocate, the contentions and grounds taken
by the petitioner in this case are baseless and there would not be any
illegality or impropriety in the order passed by the MD dated June 26,
2020. The main contention of the said respondent is about prolonged
and unauthorised absence of the writ petitioner. According to the
respondent, the petitioner has absented from duty according to his own
volition and for a prolonged period and has never joined in duty till the
time the Court passed order upon the respondent to issue an order
directing him to resume his duty. That the petitioner has never made
any prayer for extension of the leave, once taken by him. Also that there
is no documentary proof that he has ever approached the respondent
for joining, during the entire period of his absence.
(12) Thus, the petitioner having not joined in duty at the time when
the pension scheme was reintroduced by the Authority in the year
2006, he cannot be granted any benefit under the said scheme. It is
submitted further that after the period for opting for the said scheme,
introduced for the second time in 2006, having been over much before,
that is on July 31, 2006, there would not be any scope for the petitioner
to switch over to that now. It is stated by the respondent that the
petitioner did not opt for the pension scheme when it was introduced for
the first time in 2001. Accordingly, on his superannuation, he has been
paid the retirement benefits, treating him as an employee not having
opted for pension and the petitioner has accepted the retirement benefit
on January 7, 2019, without any protest. Therefore, according to the
respondent, it is only afterthought by the petitioner that he wants to
switch over to the pension scheme, reintroduced at a later point of time
by the respondent/Corporation and for that the petitioner has brought
on record some frivolous and untenable grounds which are not
maintainable in the eye of law.
(13) In this regard the respondent has relied on the order/judgments
of this Court as follows:
(i) Order dated January 7, 2014, in W.P.No. 1254 of 2013 [Dilip
Sankar Das & Ors. Vs. State of West Bengal & Ors.];
(ii) Judgment dated February 22, 2016 in APO No. 302 of 2015 [Dilip
Sankar Das & Ors. Vs. State of West Bengal & Ors.]; And
(iii) Judgment dated July 26, 2023 in WPA No. 7450 of 2021
[Monojendra Chakraborty & Ors. Vs. The State of West Bengal &
Ors.]
(14) Ms. Chattoraj, learned advocate for the respondent Corporation
has sought for dismissal of the writ petition.
(15) During his argument, Mr. Basu for the petitioner has also tried to
argue and establish that the petitioner should be considered entitled to
his salary for the period from February 2005 to May 2017, subject to
deduction of the amount as already has been paid including the
subsistence allowance, as during the said period allegedly the petitioner
has been compelled to remain out of employment, being not allowed by
the respondent/Corporation to resume his duty. It is further so due to
the reason, that the petitioner has been treated as on duty during that
period, since he has been paid gratuity on superannuation, taking into
consideration the said period of time. The submission appears to be
beyond the scope of the writ petition. The petitioner has not made any
prayer as regards the same, here in this writ petition.
(16) Therefore the moot question for determination before the Court is
whether the writ petitioner should be considered eligible to exercise his
option for pension now as on this day and be granted with the pension,
subject to compliance of due formalities.
(17) The Hon‟ble Division Bench in the case of Dilip Shankar Das
and Others (supra), has held as follows:
"There is no doubt that right to receive pension has now been
considered as a fundamental right by the Supreme Court as pension is
the property of an employee. However, when a Scheme for pension is
made applicable to existing employees conditional upon them opting for
the same and such option is not exercised within the stipulated time,
they cannot claim the pension as a matter of right. The pension is
payable under the Pension Regulations of 2001, which have been
notified in the Official Gazette. Since, the applellants chose not to
exercise their option within the time frame stipulated in the Pension
Regulations and as extended by the CTC, they are not entitled to claim
the pension under the aforesaid Regulations."
(18) Hence, it has been held by the Court that a Scheme, application
of which is conditional upon opting for the same by the employee within
a stipulated time period but not opted for within the said time period,
hence cannot be claimed at a later stage, as a matter of right.
(19) In the other case of Monojendra Chakraborty and Others
(supra), referred to by the respondent, the Court has be relying on the
decision of Dilip Shankar Das ans Others (supra), has turned down
the petitioner‟s prayer for exercising option for pension beyond the cut-
off date and for grant of pension.
(20) Admittedly, in this case, the petitioner has neither exercised his
option at the time of initial introduction of the Scheme in 2001. In 2006
when the Scheme was reintroduced and the cut-off date was fixed on
July 31, 2006, the petitioner has alleged to have forcefully been kept
out of his employment, by the respondent Corporation. The petitioner
has contended that his right to claim exercise of option has only
crystallised after setting aside of the charge-sheet on October 25, 2019
against him, which was earlier issued by the said respondent on
September 23, 2015. It is a matter of surprise as to what prevented the
petitioner from seeking to exercise pension option since after July 31,
2006, that is the cut of date till the date of his superannuation. During
this period, the petitioner has moved this Court on several occasions
and with different reliefs prayed for, but none of the writ petitions
contained the petitioner‟s prayer for an order allowing him to exercise
pension option. It is by the Court‟s order, that the petitioner was
granted the subsistence allowance and a disciplinary proceeding was
initiated against him.
(21) Admittedly also the petitioner after his superannuation has been
paid salary for the period under charge-sheet, gratuity and other retrial
benefits with all consequential benefits for the said period and received
the same without protest. Taking clue from that the respondent has
paid him gratuity after taking into consideration the entire service
period of him, the petitioner has now come up in this writ petition to
pray for an order allowing him to exercise option for pension. The
reasons shown is firstly that the respondent has treated him to be
continuously in service by allowing him gratuity on consideration of his
entire period of service and secondly that at the relevant point of time,
the petitioner was wrongfully restrained by the respondent to resume
his duties.
(22) In this case the record has revealed that the petitioner has been
allowed notional benefits in his service for his entire service period,
which includes the gratuity paid to him after his superannuation.
Notional benefits given in connection with the service period of the
petitioner and remittances of actual service benefits to him, stands on
different footing. Notional benefits are hypothetical benefits, often
related to promotion or seniority, that are recognized for calculation or
entitlement purposes but does not result in actual monetary
compensation. Actual benefits, on the other hand, are tangible,
monetary rewards, such as salary increments or arrears, that directly
impact an employee's financial situation. The petitioner has advanced
argument that the respondent has calculated increments in his case,
during the period when he has been allegedly restrained to join in duty.
However, calculation of such increment cannot be considered as
remittance of the actual service benefit to the petitioner directly
impacting his financial situation, but the same appears to have done to
come to the pay scale applicable to the petitioner, for the period for
which he has been paid salary and other benefits. Those are taken in to
consideration for the purpose of calculation only and not for the
purpose of being remitted to the petitioner in monetary terms actually.
(23) It is noted that the period of absence of the petitioner has not
been regularised by the respondent by treating the absence as
extraordinary leave. Also that none of the Courts have ordered to that
effect earlier. According to the Supreme Court, in the case of Jaya
Bhattacharya vs The State of West Bengal & Others [2025 SCC
Online SC 434], a retired government employee cannot be denied
pensionary benefits if his absence was regularised as extraordinary
leave, ensuring continuity in service. The Court has held that even if an
employee was absent for an extended period, once his service is
regularised by treating the absence as extraordinary leave period, it
cannot be considered as a break in service to deny pension benefits.
The petitioner‟s case here is, however, otherwise and would not
therefore fall within the parameters so set by the Court in the
judgement as mentioned above.
(24) It is a law settled that denial of pensionary benefits must be
based on a Rule that explicitly permits such denial. In the instant case
the Scheme and the policy undertaken allows exercise of option for
pension till July 31, 2006 and not beyond. Accordingly, there is no
infirmity or illegality if not an employee is allowed to exercise such
option beyond the said period of time.
(25) Furthermore, it is the contention of the petitioner that during the
period from February 14, 2005 to April 27, 2015, he has been forcefully
and illegally restrained to join in duty by the respondent and hence the
principle „no work and no pay‟ may not be applicable in his case.
Instead, the petitioner has urged that he should be considered to be on
duty during the said period. Before such claim of the petitioner could
have been entertained by the Court, it has to satisfy itself that the claim
of the petitioner as above is supported by sufficient tangible material,
which unfortunately is not to be seen in the instant writ petition.
Excepting stating the fact as above, the petitioner has not been able to
corroborate the same with sufficient documentary proof as to show that
he has approached the authority or ever knocked the doors of the Court
to raise his grievance as above. In this regard, as to why the petitioner‟s
argument of crystallisation of his right only upon dropping of the charge
sheet, would not be tenable in the eye of law, has been discussed earlier
in this judgment. Also, that it involves disputed questions of fact, which
cannot be gone into by this Court sitting in writ jurisdiction. No doubt,
during the entire period, the respondent has neither suspended him for
any alleged misconduct nor initiated any disciplinary proceeding
against him. However, the petitioner has to rest his case on its own
merit and not on the demerits of the case of the respondent. In such
circumstances, the petitioner‟s prayer for allowing him to exercise the
option for pension at this belated stage, after expiration of the validity
period for the same much earlier on July 31, 2006 and also after
considering him to be on duty during the period of his absence, appears
to be a prayer far-fetched and based on no sufficient grounds.
(26) For all the reasons as discussed above, this writ petition is found
to be bereft of merits and is liable to be dismissed. The impugned order
of the MD dated June 26, 2020 is found to be just, legal and proper and
hence is upheld.
(27) The writ petition No. WPO 420 of 2020 is dismissed.
(28) Urgent certified website copy of this judgment, if applied for, be
supplied to the parties upon compliance with all requisite formalities.
(Rai Chattopadhyay, J.)
