State Failed To Discharge Obligation, Calcutta HC Condones Deficiency In Qualifying Service For Disbursement Of Pension

A division bench of the Calcutta High Court comprising of Justice Tapabrata Chakraborty & Justice Partha Sarathi Chatterjee allowed the condonation of the deficiency in qualifying service for disbursement of pension, and held that the state failed to discharge its obligation within the mandatory time frame set by the Court. Background Facts The employee was selected for appointment to the post of Excise Constable on the basis of the recommendation of the Recruitment Committee. But he was not appointed to the said post due to pendency of a criminal proceeding against him. He submitted a representation for appointment to the concerned post after he was absolved from the said proceedings. The employee's claim was not considered, so he preferred an application which was disposed of by directing the respondent authority to consider his claim. Thereafter respondent passed an order dated 07.01.2009, rejecting the employee's claim as he had crossed the age bar. Aggrieved by the same, the employee filed a writ petition which was disposed of by an order dated 09.04.2010 directing the respondents to issue order for employee's appointment within a period of three weeks. The appointment letter was issued on 22.11.2010 after the period of three weeks was expired. Thus, there was a delay of 5 months and 27 days on the part of the respondents in issuing the letter of appointment. The employee joined the post on 22.11.2010 and provided continuous service till the date of his superannuation on 31.05.2020. Thereafter, the respondents disbursed the employee's gratuity and provident fund but his pension was withheld because he had provided less than 10 years of qualifying service i.e. of 9 years 6 months 9 days. Aggrieved thereby, the employee submitted an application under the provisions of the West Bengal Services (Death-cum-Retirement) Benefit Rules 1971. The application was disposed of by an order dated 07.06.2022 directing the State to consider the employee's representation. Therefore the respondent passed an order dated 16.11.2022 observing that the employee's claim was considered by the Pension Cell, Finance Department and it was denied. The employee challenged this decision before the Tribunal. The Tribunal directed the respondents to consider the employee's claim for condonation of the deficiency in qualifying service and for disbursement of pension. Aggrieved by the same, the employee filed the writ petition challenging order dated 19.02.2024 passed by the Tribunal. It was contended by the employee that the Tribunal should not delegate its duty to an executive authority and such delegation of power apart from being illegal and unconstitutional amounts to avoidance of constitutional duties and functions to decide such disputes. It was further contended that the respondents did not comply with the directions contained in the order dated 09.04.2010 within the period of three weeks. Thus, there was a delay of 5 months and 27 days on the part of the respondents in issuing the letter of appointment and for such delay the employee cannot be made to suffer. He argued that the note appended to Rule 36 of the 1971 Rules cannot take away the right of the employee towards condonation of deficiency of qualifying service. On the other hand it was contended by the respondents that that the note appended to Rule 36 reveals that the deficiency should not be condoned to make up the minimum prescribed qualifying service for the purpose of disbursement of superannuation pension. It was further argued that the employee accepted the letter of appointment dated 22.11.2010 without raising any objection and continued in service till the date of his superannuation on 31.05.2020. But the employee claimed condonation only after the end of employer-employee relationship. Findings of the Court It was observed by the court that the tribunal exercised improper jurisdiction by remitting the employee's claim for consideration to an executive authority. And the tribunals cannot delegate their essential function and duty to decide service-related disputes. Such delegation is ab initio void. It was further observed by the court that if the employee had been appointed within a period of three weeks from the date of communication of the order, there would have been no deficiency of qualifying service. The case of Asim Kumar Chakrabarti vs. The State of West Bengal & Others was relied upon by the court wherein the issues as to whether the employee having accepted the appointment would be estopped from claiming condonation of deficiency after retirement; and whether State can set up an estoppel against the employee, were discussed. It was held by the court that the State cannot set up defensive doctrine of estoppel to stop the employee from claiming condonation of deficiency after retirement after having accepted the letter of appointment. It was further...

State Failed To Discharge Obligation, Calcutta HC Condones Deficiency In Qualifying Service For Disbursement Of Pension

Namdev Singh

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