Calcutta High Court (Appellete Side)
(Khagen Chandra Das vs Union Of India & Ors.) on 17 June, 2019
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
1
17.06.2019
01
RP Ct.10
WP 20319 (W) of 2017
(Khagen Chandra Das vs. Union of India & Ors.)
Mr. Ranjan Kali, Adv.
Ms. Nabanita Dutta, Adv.
.... For the Petitioner
Mr. Kali, learned Advocate for the petitioner is flogging a dead
horse one time to many. Admittedly his client was an employee of a
public sector bank who was accused of several offences of venial nature
including cheating and criminal proceedings were initiated against him.
In a disciplinary proceeding, which was duly framed, Mr. Kali's client was
participated and given opportunity of being heard and thereafter his
client was dismissed from service. This order has achieved finality and
has not been appealed against till date.
In the criminal proceeding however because witnesses turned
hostile and the de facto complainant was not examined as witness Mr.
Kali's client was acquitted because the prosecution had failed to prove its
case. It was not hon'ble acquittal. On the basis of this, in fact, the
learned criminal Court was pleased to hold that "Prosecution failed to
adduce such strong evidence which can be warranted conviction". I
construe this to mean that the petitioner was given the benefit of doubt.
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On the basis of this finding the petitioner has come up more than
once seeking reinstatement even though the service rule do not permit
such reinstatement. On this ground a writ petition, being the earlier
round of this case, was dismissed by a coordinate bench. That dismissal
was upheld by the Hon'ble Division bench by an order dated February
14, 2017 which appears at page 48 of the present writ petition. The
order of the learned Single Judge appears at page 39 of the writ petition
and is dated July 21, 2015. The order of the Hon'ble Division Bench
records the submission made by the counsel for the respondents that the
final order of discharge from service with pensionary benefits was passed against the appellant (at page 53) and also records an observation of the Hon'ble Division Bench as follows :-
"Needless to observe, in the event the dues, in terms of the final order passed in the disciplinary proceedings, have not been disbursed in favour of the appellant, the respondents shall disburse the same within a period of four weeks from date."
Mr. Kali submits that on the basis of this two pieces of findings/recordings his client is entitled to be given a chance to exercise the option to receive pension and also a command should be issued directing the respondent authorities to disburse pension in terms of the option.
The matter is appearing at the stage of hearing after completion of affidavits. Affidavit-in-reply filed in Court today be kept with the records. 3 None has appeared today on behalf of the respondents that the matter is appearing pursuant to notice. Therefore I have to proceed as if the respondents are not interested to oppose the petition apart from the pleadings already filed. In the affidavit-in-opposition, particularly at paragraph 3(c ) the respondent bank has stated that all the retiral benefits have been paid to the petitioner soon after his removal from service i.e. to say February 22, 2005. It has given particulars of what has paid to the petitioner. A denial has been made to the petitioner's entitlement to get pension on the ground that no option was exercised by the petitioner to come under the pension scheme of the Indian Bank during the tenor of his service till the date of his dismissal. Mr. Kali has also pointed out the fact that the pension scheme was introduced when his client was not in service. Therefore I do not have to look his affidavit- in-reply in this regard since it is an admitted position that he did not exercise the option during the subsistence of his service. Even though the reason for not doing so as submitted by Mr. Kali was because the scheme was not in existence when his client was in service. Neither the scheme was annexed to the writ petition nor, in fact, the order of dismissal from service on the basis of which Mr. Kali has claimed relief in the writ petition. Since it is at the stage of hearing I cannot allow Mr. Kali to take out a document from his pocket as if he is a mainstream motion picture's hero of a Bollywood Blockbuster. Unfortunately we are not under a Banyan tree but at the High Court at Calcutta where such 4 antics have been discouraged for at least 157 years. Mr. Kali appears to unaware of the practice of this Court. No prayer has been made belatedly for filing a supplementary affidavit but Mr. Kali has chosen to address this Court on merits and the matter. Accordingly I hold that no materials have been furnished before this Court to show that a person who is not in service at the time when a scheme was introduced and who has not opted for pension while he was in service and in a situation where there was no pension scheme while he was in service he can still ask for pension as a matter of right. Had the pension scheme been annexed to the writ petition, had the order of dismissal from service been annexed then I could have gone into the question whether the scheme has retrospective effect. Since those were not annexed to the writ petition, and Mr. Kali submits that amendment to the scheme of 1995 was given its retrospective effect in 2010, and the present writ petition is of 2017 and therefore I cannot hold that non-furnishing of the said scheme was after exercising all due diligence and therefore it does not appear that due diligence was exercised by the petitioner but still he could not produce the scheme at the time when the matter was being heard. Accordingly I hold that the writ petitioner has not been able to make out a case on merit and the writ petition is therefore dismissed.
There shall be no order as to costs.
I am told that the writ petitioner has died and present writ petitioners are the substituted heirs who only have the right of financial 5 benefit. As such, the aforesaid estate also gets nothing apart from what has been paid.
Urgent Photostat certified copy of this order, if applied for, be delivered to the learned Advocates for the parties, upon compliance of all formalities.
(PROTIK PRAKASH BANERJEE, J.) 6