Summary
Deciding on merits a pension dispute pending for about 25 years, the Supreme Court held that once the State regularised the appellant's long absence by treating it as extraordinary leave, that period could not be treated as a break in service to deny pension, particularly when the departmental inquiry ordered by the Tribunal into her claim that she was kept from working was never held. Pension was directed to be finalised within three months, without arrears.
Issues
- Whether the Supreme Court should decide the matter on merits although the High Court had dismissed the writ petition, review and recall applications for non-prosecution.
- Whether an employee whose absence from 1987 to 2007 was regularised as extraordinary leave could be denied pension on the ground that the period was not qualifying service or amounted to a break in service.
- Whether the authorities, having failed to hold the departmental inquiry directed by the Tribunal, could place on the employee the burden of proving that she was prevented from working.
Provisions considered
- Rules 175 and 176(4), West Bengal Service (Death-cum-Retirement Benefit) Rules, 1971The authorities had invoked these Rules on 19.05.2011 to treat the appellant's absence from 29.06.1987 to 12.07.2007 as extraordinary leave without leave salary and to regularise her service. The Court held that having so regularised the period, the State could not later treat it as unauthorised absence or a break in service to deny pension. (¶¶ 7, 11, 12)
- Rule 28A, West Bengal Service (Death-cum-Retirement Benefit) Rules, 1971The Tribunal had refused pension because the extraordinary leave was not granted on any ground listed in Rule 28A and so was not qualifying service. The Court did not uphold that reasoning, holding that denial of pension must rest on a rule enabling it and that regularised leave cannot be recast as unauthorised leave. (¶¶ 8, 11, 12)
Held
- Although the appeals sought only restoration of the writ petition dismissed for non-prosecution, the Court decided the dispute on merits in view of its pendency for about 25 years. (¶ 3)
- Whether the employee was prevented from performing her duties could be established for or against her only in a duly constituted departmental inquiry. The authorities' failure to hold the inquiry ordered by the Tribunal could not shift to the employee the burden of proving that she was kept from working, and findings in later proceedings that she had not shown this did not help the State. (¶ 11)
- Denial of pensionary benefits must flow from a rule enabling the government to deny them. Once service for the period of absence has been regularised by treating it as extraordinary leave, that period cannot be treated as unauthorised leave or a break in service for the purpose of denying pension; the State could have denied pension only by proving unauthorised absence, not by refusing to hold an inquiry. (¶¶ 11, 12)
- On the peculiar facts, the appellant was held entitled to pension, to be finalised within three months, but without any arrears. (¶ 12)
Result
Civil appeals disposed of; respondents directed to finalise the appellant's pension within three months; no arrears payable.