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2025 INSC 270 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). OF 2025
(Arising out of SLP(C) No(s). 8850-8852 of 2024)
JAYA BHATTACHARYA … APPELLANT
Versus
THE STATE OF WEST BENGAL & ORS. … RESPONDENTS
JUDGMENT
PRASHANT KUMAR MISHRA, J.
Leave granted.
2. These appeals arise from the judgment and orders dated
13.07.2023 passed in WPST No. 234 of 2015, 06.09.2023 in CAN
Signature Not Verified
No. 1 of 2023 in WPST No. 234 of 2015 and 21.12.2023 in RVW
Digitally signed by
ARJUN BISHT
Date: 2025.02.25
16:52:43 IST
Reason:
No. 275 of 2023 in CAN No. 1 of 2023 in WPST No. 234 of 2015,
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whereby the High Court has dismissed the writ petition as well
as Review Application on account of non-prosecution and the
application for recalling the order dated 06.09.2023 met the
same fate as the advocate remained unable to assist the Court
on merits.
3. Although, the writ petition was not adjudicated on merits
and the prayer in these civil appeals is for restoration of writ
petition, however, considering long pendency of the lis for about
25 years, we deem it appropriate to decide the issue on merits.
Factual matrix:
4. On 20.03.1986, the appellant was appointed and joined as
L.D. Assistant in the Office of Block Development Officer,
Jhargram. While she was posted in the Office of Sub-divisional
Officer, Jhargram (Respondent No. 3), she remained absent
from duty for 107 days and thereafter again from 29.06.1987 to
12.07.2007. She submitted a complaint on 17.02.1987 that she
was restrained from signing the attendance register. However,
on 15.06.1987 the respondent no. 3 issued a show cause notice
to the appellant as to why disciplinary proceedings should not be
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initiated against her for her unauthorized absence. The appellant
submitted her reply and also wrote to the Secretary, Board of
Revenue complaining about denial of joining. She preferred writ
petition, which was later transferred to the State Administrative
Tribunal, West Bengal and registered as T.A. No. 1843 of 1997.
The Tribunal disposed of the matter on 24.11.2000 closing the
proceedings on the ground that since no departmental
proceedings have been initiated, there is nothing to be
adjudicated. This order of the Tribunal was challenged before the
High Court in WPCT No. 270 of 2001 in which the Tribunal’s order
was set aside, remitting the matter back to the Tribunal.
5. On remand, the Tribunal passed an order on 01.12.2003
directing the Collector, Midnapur (West) to cause a departmental
proceeding in respect of the allegations that though she joined
the office and signed the attendance register she was not
allowed to perform her duties and that she was not paid salary
for the month of May, 1987 onwards. It was further directed that
she should be given an opportunity of hearing and appropriate
order be passed in respect of the payment of salary of the
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appellant and in respect of allowing her to discharge her duties,
within a period of four months.
6. The appellant challenged the second order of the Tribunal
in Writ Petition No. 278 of 2004 which was disposed of directing
the respondents/authorities to allow the appellant to resume her
duties forthwith preferably within 48 hours from the date of
communication and she must discharge her duties, if resumed,
and if any salary remaining legitimately due and payable, the
same shall be paid in terms of the order of the Tribunal.
However, the respondents are not precluded from taking lawful
action against the appellant, as may be advised.
7. On 19.05.2011, the appellant’s unauthorized absence from
29.06.1987 to 12.07.2007 has been treated as extraordinary
leave and service has been regularized as per Rule 175 and Rule
176 (4) of the West Bengal Service (Death-cum-Retirement
Benefit) Rules, 1971 which provides that a government
employee on extraordinary leave is not entitled to any leave
salary. Basing on this, the appellant was informed by respondent
no. 3 on 07.06.2011 that you have been allowed to join back on
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13.07.2007 and your pay has been refixed. However, she is not
entitled for leave salary etc. during the period of absence.
8. The appellant again preferred O.A. No. 1347 of 2012 before
the Tribunal for grant of pension and other retiral benefits. The
main issue before the Tribunal was whether the appellant fulfilled
the requisite criteria to be entitled to pension in terms of the
relevant rules for the purpose. The Tribunal concluded that the
extraordinary leave granted to her being not on any of the
grounds listed under Rule 28A of the West Bengal Service
(Death-cum-Retirement Benefit) Rules, 1971, the period of
extraordinary leave allowed to her cannot be considered as
qualifying service to be entitled to pension/family pension as
stipulated in G.O. NO. 201-F (Pen.) dated 25.02.2009, hence the
order refusing pension is fully justified.
9. Challenging this order of the Tribunal, the appellant
preferred writ petition which was dismissed for want of
prosecution and subsequently her review application and
restoration petition have also been dismissed.
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10. We have heard learned counsel for the parties and perused
the record.
11. What is discernible from the record is that despite Tribunal’s
order dated 01.12.2003 directing the Collector to cause a
departmental inquiry in respect of the appellant’s allegations to
the effect that though she joined the office and signed the
attendance register she was not allowed to perform her duties
and was not paid salary from May, 1987 onwards, no such
inquiry was ever conducted by the respondents/authorities.
Even though the order passed by the respondents/authorities on
19.05.2011 that her unauthorized absence is treated as
extraordinary leave and her service is regularized was not
challenged subsequently, the fact remains that the appellant has
been condemned unheard without subjecting her to any
departmental inquiry despite Tribunal’s order. Any observation
by the Tribunal or the High Court in subsequent proceedings that
the appellant failed to demonstrate that she was prevented from
performing her duties would not enure to the benefit of the
respondents for the simple reason that the said fact could have
been established either for or against the appellant only in a duly
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constituted departmental inquiry. 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. 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.
12. In our considered view, having once regularized her service
during the period of absence by granting extraordinary leave, it
cannot be held that the said period can be treated as break in
service. In the peculiar facts and circumstances of this case, we
are of the considered view that the appellant would be entitled
for pension. We, accordingly, direct the respondents/authorities
to finalise the appellant's pension within a period of three
months. However, the appellant shall not be entitled for any
arrears.
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13. The Civil Appeals are disposed of in the above terms.
……….………………………………………J.
(B.R. GAVAI)
....….………………………………………J.
(PRASHANT KUMAR MISHRA)
NEW DELHI;
FEBRUARY 25, 2025.
