Continuing Wrong By State Creating Continuous Injury : Calcutta HC Upholds Condonation Of Service Deficiency & Grants Pension

A Division bench of the Calcutta High Court comprising Reetobroto Kumar Mitra, J. and Tapabrata Chakraborty, J. held that in case of the continuing wrong creating a continuous source of injury due to delay on part of the State, the grant of pension upon condonation of deficiency in service is allowed. Background Facts The respondent's name was sponsored by the Employment Exchange in the year of 1986-87 against the vacancies for the post of Assistant Teacher notified by the Council in the year of 1986. Further due to series of Court cases he could not be appointed. Ultimately a separate panel was prepared and approved pursuant to the order passed by the Court. The Principal Secretary, School Education Department, Government of West Bengal refused to condone the deficiency in qualifying service of the respondent. The respondent was denied pension on a finding that he had served less than 10 years, which debarred him from such benefit under the West Bengal Recognised Non-Government Educational Institutions Employees (Death-cum-Retirement Benefit) Scheme. Aggrieved, the respondent filed a petition wherein the single judge ruled in his favour. Aggrieved by the same, the State filed an appeal challenging the order dated 5th August, 2024 passed by the Single Judge. It was contended by the appellant State that the shortage of qualifying service of the respondent was of more than three years. Therefore, the Judge ought not to have taken into consideration the past unapproved service for the purpose of condonation of deficiency of qualifying service. It was further argued that the Judge ought to have appreciated that by accepting the approval of service with effect from 8th June, 2005 and having continued in service till the date of his superannuation on 6th October, 2011, the respondent had waived his right to claim condonation of deficiency in service and that too after cessation of the employer-employee relationship. It was further contended that the deficiency in qualifying service was not condoned by the competent authority. On the other hand it was contended by the respondent that his name was sponsored by the Employment Exchange in the year of 1986-87 against the vacancies for the post of Assistant Teacher notified by the Council in the year of 1986. Further due to series of Court cases he could not be appointed and ultimately pursuant to the order passed by the Court, a separate panel was prepared and approved. For such delayed approval and for the laches on the part of the appellants, the respondent cannot be made to suffer. It was further contended that pension is a retirement benefit partaking of the character of regular payment to a person in consideration of the past service rendered by him and is claimable as a matter of right and such right is in the nature of a property in the hands of the employee which cannot be denied only on the ground of alleged delay. The benefits of the Pension Scheme cannot be scuttled by limiting the period of condonation as such restriction would lead to discrimination. Findings of the Court It was observed by the court that the respondent's approval was withheld due to a series of litigation and was ultimately granted in the year 2005, while for others, it was issued in the year 1993. It was observed that though such delay is not attributable to the respondent, he had suffered the injury for having been deprived of approval for more than 10 years. It was observed that the State cannot set up any defensive doctrine of estoppel. If a restrictive meaning is applied and the benefits are denied to the respondent, the purpose of the welfare scheme would be defeated. Further, it was observed by the court that the delay on the part of the respondent in approaching the Court was rightly disregarded. The judgment in the case of Union of India and others versus Tarsem Singh, was relied upon by the court wherein it was held that in cases involving a continuing wrong creating a continuous source of injury, the grant of pension along with condonation of deficiency in service can be allowed. Therefore the court did not interfere with the direction of the Single Judge to grant notional benefit to the respondent treating him to be in service for the qualifying period of ten years and to proceed processing with the pension file and to ensure that he receives his pension at the earliest. Further, the Principal Secretary, School Education Department, the competent authority to condone the deficiency of service as under the Pension Scheme, was directed to take steps towards condonation of such deficiency of service. The pension sanctioning authority was directed by the court to follow up steps towards disbursement of all benefits, as directed by the single Judge. Further the time limit fixed by the single Judge was extended for a period of four months. With the aforesaid modification, the...

Continuing Wrong By State Creating Continuous Injury : Calcutta HC Upholds Condonation Of Service Deficiency & Grants Pension

Namdev Singh

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