Calcutta High Court (Appellete Side)
In Re: Amita Das Sarkar vs The State Of West Bengal & Ors on 16 February, 2018
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
1
16.02.18
Item No.06
Court No.15
Krishnendu
W.P. No. 19924 (W) of 2016
In re: An application under Article 226 of the Constitution of India filed on 08.09.2016;
And
In re: Amita Das Sarkar
- Versus -
The State of West Bengal & Ors.
Mr. Saugata Bhattacharya
Mr.Sunit Kumar Ray
Ms.Saberi Saha
For the Petitioner
Mrs. Sipra Majumdar
Mrs. Prativa Ghatak
For the State
Mr. Guddu Singh
For the Respondent Nos.5 & 6
The present writ petition has been preferred challenging inter alia an order dated 26th July, 2016 passed by the respondent no.3 and the inaction on the part of the respondents to disburse the gratuity amount in favour of the petitioner.
Mr. Bhattacharya, learned advocate appearing for the petitioner submits that the petitioner was appointed and approved in the post of Headmistress of Jeeva Shiva Mission Kiran Chandra Girls' High School (in short, the said school) on 5th May, 1995. Prior to her retirement on 31st July, 2015, the pension payment order was issued on 2nd July, 2015. On the basis of the same, the monthly pension was sanctioned and disbursed in favour of the petitioner. She was also paid her provident fund dues. However, the authorities withheld the gratuity payable to the petitioner. Aggrieved thereby, the petitioner approached this Court by filing a writ petition, being W.P. No. 888 (W) of 2016 and by an order dated 29th March, 2016 the matter was relegated to the 2 respondent no.3 for consideration. Pursuant to the said order, the impugned order was passed observing as follows :
"Hence the petitioner is directed to submit all the important documents to the school authority. District Inspector of Schools is directed to issue no-liability certificate immediately but not later than 31.07.2016 after receiving the documents by the school authority and the concerned disbursing authority is directed to disburse the gratuity amount within 7 days after receiving of such no liability certificate from the Concerned District Inspector of Schools expeditiously."
He submits that under the pension scheme and the guidelines framed vide memo dated 26th May, 1998, in case of Headmistress/Headmaster, the "no liability certificate"
is required to be issued by the Secretary of the Managing Committee of the said school and not by the District Inspector of Schools. The Secretary of the said school did issue the same on 31st July, 2015 but not in the prescribed form and on such ground disbursement of gratuity amount was illegally withheld. The petitioner handed over charge to the teacher-in-charge of the said school on 31st July, 2015 along with the documents which were in her custody as the Headmistress of the said school. The same was accepted by the teacher-in-charge without raising any objection whatsoever. Almost a year thereafter an F.I.R. was registered on 14th June, 2016 on the basis of a complaint lodged against the petitioner by the school authorities. Upon investigation, the police authorities, however, submitted a final report on 7th May, 2017. Even thereafter the gratuity amount was illegally withheld.
Placing reliance upon the averments made in the affidavit-in-opposition, Mr. Singh, learned advocate appearing for the respondent nos. 5 and 6 submits that unless the petitioner hands over the documents, as referred to in paragraph 4(b) of the affidavit-in-opposition, the school authorities cannot issue the "no liability certificate" 3
in the prescribed form. In the event the said documents are not handed over, the in- service teachers would be prejudiced.
The learned advocate appearing for the State respondents submits that there exists a dispute between the petitioner and the school authorities and in terms of the provisions contained in the pension scheme, issuance of a "no liability certificate" in the prescribed form is a mandatory pre-condition towards disbursement of gratuity.
The petitioner had served as the Headmistress of the said school for a long period of about twenty years. The school authorities have neither been able to produce any document nor has made any averment in the affidavit-in-opposition that there was a subsisting dispute as regards availability of certain relevant documents which may prejudice the in-service teachers in future. Existence of any liability could not be established by the school authorities. Indisputably, the petitioner handed over charge to the teacher-in-charge of the said school along with relevant documents, which were in her custody, as would be explicit from the documents at pages 31 to 34 of the writ petition. On the self-same day itself, the Secretary of the Managing Committee of the said school issued a "no liability certificate" stating that the petitioner has no liability regarding the school. From the memo dated 17th February, 2016 issued by the Deputy Director of Pension to the respondent no.4, it appears that a non-drawal certificate in favour of the petitioner was also issued by the said respondent no. 4 on 24th November, 2015. In terms of the pension scheme, the gratuity may be withheld in case a disciplinary proceeding or any other judicial proceeding is pending against the petitioner. In the instant case, no disciplinary proceeding was at all initiated against the petitioner. So far as the criminal proceeding is concerned, a final report has also been filed in the same on 7th May, 2017 and as such, in my opinion, there can be no embargo towards disbursement of the gratuity amount in favour of the petitioner. 4 However, for sanction and disbursement of the same, a "no liability certificate" in the prescribed form is required from the school authorities.
Accordingly, the order dated 26th July, 2016 passed by the respondent no.3 is set aside and the school authorities, particularly the Secretary of the Managing Committee of the said school are directed to issue the "no liability certificate" in the prescribed form in favour of the petitioner and to forward the same to the respondent no. 4 within a period of two weeks from the date of communication of this order. Within a period of two weeks after receipt of the said "no liability certificate", the respondent no.4 shall forward the same along with all the relevant documents to the respondent no.3. Within a period of two weeks thereafter the said respondent nos.3 and 7 shall ensure disbursement of the gratuity amount in favour of the petitioner in terms of the pension payment order dated 2nd July, 2015, subject to compliance of necessary formalities, if any, by the petitioner.
With the above observations and directions the writ petition is disposed of. There shall, however, be no order as to costs.
Urgent photostat certified copy of this order be supplied to the parties on compliance of all formalities.
(Tapabrata Chakraborty, J.)