The Supreme Court recently observed that any denial of pensionary benefits to a government employee must emanate from a rule enabling the government to take such a course of action [Jaya Bhattacharya vs. The State of West Bengal & Ors.]..A Bench of Justices BR Gavai and Prashant Kumar Mishra made the observation while granting relief to a clerk employed by a local authority in Jhargram, West Bengal.The employee was denied pensionary benefits on the ground that she had been absent from work without authorisation. The Court, however, noted that after several rounds of litigation, the authorities had decided to treat this absence as an extraordinary leave period. The Bench also took critical note of the fact that a formal departmental inquiry was not ordered against the employee, which could have given her an opportunity to defend her case. The Court concluded that the State could not have denied her pension in such circumstances. It further observed that if an employee's absence is regularized as extraordinary leave under Rule 175 and Rule 176(4) of the West Bengal Service Rules, 1971, it cannot be considered unauthorized leave to deny pension benefits. "Denial of pensionary benefits to an employee must emanate from any rule enabling the government for such denial. When the services have been regularized by treating the same as extraordinary leave the same cannot be treated as unauthorised leave for denying the pensionary benefits. The respondents could have denied the pension to the appellant by proving that she was unauthorizedly absent for the subject period and not by refusing to hold an inquiry against her," the Court added..The plea before the Court was filed by one, Jaya Bhattacharya (appellant) who was appointed as an Lower Division Assistant in the Office of the Block Development Officer, Jhargram, in March, 1986.While she was working with the office of the Sub-Divisional Officer, Jhargram, she remained absent for 107 days. Later, she was again absent from work from June 29, 1987, to July 12, 2007. Notably, in February 1987, she claimed that she was prevented from signing the attendance register and joining work. But on June 15, 1987, Block Development Officer, Jhargram issued a show cause notice citing her unauthorized absence from work.She submitted a reply and appealed to the Secretary, Board of Revenue, but was denied reinstatement. She then filed a writ petition before the High Court, which transferred the case to the State Administrative Tribunal.The Tribunal dismissed the case in 2000, citing the absence of departmental proceedings. She challenged this before the High Court, which set aside the Tribunal’s order and remanded the matter..In December 2003, the Tribunal directed the Collector of Midnapur (West) to conduct a departmental inquiry into her claims that she had signed the attendance register but was denied work and salary since May 1987. She again approached the High Court, which ordered that she be reinstated within 48 hours.In May 2011, the authorities decided to treat her absence from June 29, 1987, to July 12, 2007, as extraordinary leave under Rule 175 and Rule 176(4) of the West Bengal Service Rules, 1971, which does not grant salary for such leave. On June 7, 2011, she was informed that she had been reinstated with effect from July, 2007 and that her pay had been refixed, but that she would not receive salary for the absence period..She then again moved the Tribunal for relief, seeking pension and retiral benefits. The Tribunal opined that since the extraordinary leave given to her was not on any of the grounds expressly mentioned in the 1971 Rules, the leave so granted to her would not help her qualify for pension. She filed an appeal before the High Court, which was dismissed for want of prosecution. After her review application and restoration petition were also dismissed, she approached the Supreme Court. .The top court granted her relief by its February 25 ruling. Among other factors, it noted that no departmental inquiry was conducted against her. The Court opined that the authorities cannot shift the burden to the employee to prove her case without any such inquiry. "The fact remains that the appellant has been condemned unheard without subjecting her to any departmental inquiry despite Tribunal’s order ... The respondents’ failure to conduct an inquiry as per Tribunal’s order cannot shift the burden on the appellant to prove that she was prevented from working," the Court said. The Court added that since the appellant’s service was regularized by granting her extraordinary leave, the period of her absence cannot be considered a break in service to deny her pension.Accordingly, the Court directed the West Bengal government to finalize the appellant's pension within three months, but clarified that she would not be entitled to arrear payments..[Read Order]
