Jaya Bhattacharya vs The State Of West Bengal

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, 2

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 3

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 4

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 5

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. 6

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 7

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.

8

13. The Civil Appeals are disposed of in the above terms.

……….………………………………………J. (B.R. GAVAI)

....….………………………………………J. (PRASHANT KUMAR MISHRA) NEW DELHI;

FEBRUARY 25, 2025.