Calcutta High Court (Appellete Side)
Manik Chandra Das vs State Of West Bengal & Ors on 17 July, 2015
Author: Biswanath Somadder
Bench: Biswanath Somadder
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14
17.07.2015
pg.
WP 16277 (W) of 2003
with
CPAN 662 of 2004
with
CAN 5448 of 2004
Manik Chandra Das
Vs.
State of West Bengal & Ors.
Mrs. Vijoy Lakshmi Seal
Mr. Sajal Kanti Bhattacharyya
... For the petitioner/applicant
Mr. S.K. Panja
Mr. S.S. Koley
... For the alleged contemnor
respondents/applicant
Let the affidavits filed on behalf of the parties be taken on record.
On 17th December, 2003, an ad interim order was passed by the Court whereby the concerned respondents were directed to release General Provident Fund amount paid by the writ petitioner during his service career and accumulated in the account of the writ petitioner within a certain timeframe and also for release of the gratuity amount. Subsequently, the concerned respondent, being the erstwhile West Bengal State Electricity Board took out an application, being CAN 5448 of 2 2004, praying for suitable modification, variation or alteration of the order dated 17th December, 2003, passed by Maharaj Sinha, J. (as His Lordship then was) by deleting the word "GPF" inasmuch as the writ petitioner was not entitled to get such GPF.
The reason for filing of the connected application by the West Bengal State Electricity Board appears to be based on a circular dated 14th December, 2001 and the reply provided by the West Bengal State Electricity Board to the Hon'ble MIC, Department of Power, Government of West Bengal, dated 19th May, 2003, containing a report on a representation made by the writ petitioner dated 28th January, 2003, regarding pensionary benefit. Before the said connected application could be disposed of, the writ petitioner took out a contempt application, being CPAN 662 of 2004.
Several orders appear to have been passed between 17th December, 2003, till date. However, the only question that falls for consideration is whether the petitioner is entitled to such reliefs, as prayed for in the writ petition and whether the ad interim order dated 17th December, 2003, is required to be modified and/or varied and/or altered.
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It is noticed from the records that the petitioner is an ex- serviceman (military) who joined service on 19th April, 1982, provisionally, as a class III employee under an ad hoc establishment on a monthly consolidated pay and was posted in the office of Asansol Electric Supply at Asansol. His service was confirmed with effect from 22nd April, 1983 and he superannuated on 30th November, 2002.
It is the specific contention of the petitioner that he had exercised option for Pension (including Family Pension)-cum- Gratuity and accordingly a portion of his salary was deducted as employee's contribution to the General Provident Fund. Subsequently, upon retirement, he filed the writ petition praying, inter alia, for issuance of a writ in the nature of mandamus commanding the respondents from withholding and/or denying payment of pension and other post retirement benefits to the petitioner.
The stand of the erstwhile West Bengal State Electricity Board is quite clear from its connected application, being CAN 5448 of 2004. It appears therefrom that the petitioner, being a military pensioner, was not eligible for benefit of Contributory Provident Fund and no contribution from employer's side was payable. As a military pensioner he was not eligible to more than 4 one pension as per Central Civil Service Pension Rules of the Central Government. However, on the prayer of the military pensioners, the erstwhile West Bengal State Electricity Board considered the matter and issued an office order dated 1st April, 1989, whereby such pensioners were allowed benefit of Contributory Provident Fund with retrospective effect from their respective date of joining the Board, subject to the condition that they will not be allowed to switch over to the Board's Pension Scheme, 1985, as was introduced from 4th May, 1985. By a subsequent order dated 28th February, 2003, the erstwhile Board further clarified the matter by including Regulation 2B of the Board's Pension Regulations, namely, WBSEB Employees' Death cum Retirement Benefit Regulations, 1985. As per the said Regulations of 1985, all employees joining on or after 4th May, 1985, were given the option to join the scheme as per their own volition and choice. Since the writ petitioner joined the Board prior to 4th May, 1985, he submitted option for such scheme without indicating the fact that he was getting military pension and the local office of the Board had accepted such submission of option on good faith, although wrongly.
In the facts of the instant case, as stated above, it is quite apparent that even though the petitioner exercised his option to come within the scheme of 1985, he is not eligible to 5 get any benefit under the said scheme in view of the fact that he was getting military pension all along.
Reliance has been placed upon a recent circular dated 17th January, 2013, issued by the Department of Ex-Servicemen Welfare, Ministry of Defence, Government of India, by the learned advocate for the petitioner, which cannot have any manner of application at all in the facts of the instant case where the petitioner retired from service on 30th November, 2002. Since the writ petition was filed in the year 2003 and the circular dated 17th January, 2013, had not even seen the light of the day at that material point of time, the petitioner cannot seek issuance of a writ in the nature of mandamus on the basis of the said circular dated 17th January, 2013. However, it has been stated in the said circular dated 17th January, 2013, that the benefit of the provisions as contained in the circular shall also be allowed in past cases. Such financial benefit, however, shall be granted from 24th December, 2012, only.
As such, the petitioner is always at liberty to approach the erstwhile West Bengal State Electricity Board (now known as 'West Bengal State Electricity Distribution Company Limited') seeking benefit under the said circular dated 17th January, 6 2013, which may be considered by the concerned authorities in accordance with law.
However, if the erstwhile West Bengal State Electricity Board has accepted from the petitioner employee's contribution to the General Provident Fund, the same is required to be refunded to the petitioner with applicable interest forthwith. If no interest is specified, the petitioner will be entitled to interest at the rate of seven per cent per annum to be calculated from the date of his retirement till actual payment.
With the above observations, WP 16277 (W) of 2003 together with CAN 5448 of 2004 and CPAN 662 of 2004 are disposed of.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Biswanath Somadder, J.)