Calcutta High Court (Appellete Side)
Smt. Rita Basu @ Rita Bose vs The State Of West Bengal And Others on 6 August, 2019
Author: Moushumi Bhattacharya
Bench: Moushumi Bhattacharya
1
6th August,
2019
(SKB)
W.P. 3247(W) of 2019
Smt. Rita Basu @ Rita Bose
Vs.
The State of West Bengal and others
Mr. Subir Sanyal,
Mr. Siddhartha Banerjee,
Mr. Debashis Karmakar
... for the petitioner.
Mr. Ekramul Bari,
Mrs. Tanuja Basak,
Syed Mansur Ali
... for respondent no.5.
Mr. Sudeshna Das Mazumder ... for the State.
In the present writ petition, the petitioner seeks a direction on the respondent nos.5 and 6 being the Headmaster and Secretary of Raina Swami Bholananda Vidyayatan, Raina, Dist.-Purba Bardhaman, respectively to release the provident fund which is due and payable to the petitioner on her superannuation. The petitioner retired from the concerned school as an Assistant Teacher on 31st January, 2018.
Counsel for the petitioner relies on a number of documents starting with a post-facto approval of appointment granted to the petitioner by the District Inspector of Schools (S.E.), Purba Bardhaman, on 22nd November, 2017 and a "no liability certificate" issued by the head of the institution on 25th May, 2018 after the petitioner's retirement. Counsel places the "no liability certificate"
which contains several pointers and includes the following line "she has no 2 liability which is yet to be recovered from her Gratuity & Pension Relief in addition to the amount mentioned in her Pay Certificate".
The Pension Payment Order was issued in favour of the petitioner in March, 2018. Counsel relies on three letters from the District Inspector and the Additional District Inspector, the first of which is dated 19th July, 2018 addressed to the Head of the School and requesting the latter to submit the requisite papers of the petitioner with regard to the provident fund payment which is due to the petitioner within seven days from the date of issue of letter. The remaining two letters would appear from the affidavit-in-opposition filed by the respondent nos.5 and 6. The second letter is dated 28th August, 2018 from the Assistant Inspector of Schools(S.E.) Sadar Sub-Division, Purba Bardhaman, with the subject "2nd reminder regarding final payment of PF of Rita Basu (Ex- A.T.)". In the said reminder sent to the Headmaster/Teacher-in-Charge, it has been pointed out that despite the letter dated 19th July, 2018 with regard to submission of papers pertaining to the final provident fund payment to the petitioner, the school has not submitted any papers and that the requisite papers should be submitted within seven days from the date of the said letter.
The third letter is from the D.I. dated 1st November, 2018 and the relevant part of which should be set out as follows:
"Moreover, there is no mentioning of the amount of overdrawal in respect of HRA in the Service Book of Smt. Basu and accordingly his pension case was finalized. It is very astonishing to note that the question of excess drawal of allowances was not decided prior to her retirement.
Thus, he is directed to produce all relevant records for finalizing Provident Fund of Smt. Basu and enabling this office to release the same in favour of Smt. Basu within next 10 working days.3
Otherwise, you will be liable for further legal complications and his inaction will be dealt with seriously."
Counsel further refers to two Resolutions of the Managing Committee of the school dated 25th July, 2018 and 10th October, 2018 which reflect decisions taken by the Managing Committee including withholding the final provident fund payment on account of an amount of Rs.2 lacs being due from the petitioner by way of House Rent Allowance (H.R.A.). Counsel points to a computation made on behalf of the school and the Headmaster on 26th September, 2018 being a "HRA Drawal Certificate" which shows that an amount of Rs.2,39,606/- is due from the petitioner from 1st August, 1983 to 31st December, 2018 and further that an amount of Rs.26,400/- has already been received from the petitioner on account of H.R.A. It is the petitioner's case that the school authorities are not legally entitled to withhold the provident fund dues of the petitioner after her retirement. It is also submitted that the amount due from the petitioner is admittedly Rs.1,86,816/- which is far less than the total provident fund dues which is payable to the petitioner.
Counsel relies on Gorakhpur University Vs. Dr. Shitla Prasad Nagendra and others reported in (2001)6 SCC 591 for the proposition that pension and gratuity are no longer matters of bounty to be distributed by the Government but are valuable rights acquired and any delay in settlement or disbursement of pension and gratuity should be dealt with severely by imposing penalty in the form of payment of interest.
4
Counsel for the respondent no.5, being the Headmaster of the school, raises a preliminary point of the Managing Committee of the school not being served. According to Counsel, the Managing Committee should be heard on the issue since both the Resolutions were taken by the Managing Committee in respect of withholding of the petitioner's provident fund of the petitioner.
Counsel also refers to the minutes of the Resolution which shows that the petitioner owes a close to Rs.2 lacs to the school on account of H.R.A. and further that the fact of the petitioner having used school accommodation is not disputed. Counsel suggests that there has been a suppression of material facts in the writ petition since the petitioner has not mentioned the H.R.A. dues.
I have heard Counsel for the parties.
With regard to the preliminary objection raised by Counsel for the Headmaster, it should be noted that the affidavit-in-opposition shows that the Managing Committee was sought to be served through the Vice President and that concerned item was not delivered. However, it is found from the array of parties that the Secretary of the Managing Committee is the respondent no.6 and the Headmaster (respondent no.5) is admittedly a part of the Managing Committee. Even if it is correct that there is presently no Vice President in the Managing Committee, the Secretary who has been made a party respondent should have been represented since 16th July, 2019 when the matter was taken up for hearing.
Upon considering the documents on record, this Court is of the view that the present case is a glaring instance of the Managing Committee of the School 5 together with the Headmaster, the Secretary and the other office bearers abusing their position without any legal or factual basis.
The only question to be answered is whether a Managing Committee of a school can withhold the provident fund dues of a teacher who has superannuated on account of alleged monetary liabilities of a teacher. In this case, the computation made on behalf of the school shows that out of Rs.2,39,606/- on account of H.R.A. the school has already received Rs.26,400/-. Since the amount of provident fund far exceeds any amount which the petitioner may be owing on account of H.R.A. or otherwise to the school, the school cannot possibly have any ground in continuing to withhold the petitioner's provident fund dues after 31st January, 2018. Significantly, none of the resolutions mention the three letters received by the Headmaster from the D.I. as well as the Assistant D.I. reminding the school to send the relevant papers pertaining to the Provident Fund dues to the petitioner within seven/ten days from the date of issue of such letters. This Court also finds the factual recording in the resolution dated 10th October, 2018 to be factually incorrect. The third letter from the D.I. dated 1st November, 2018 clarifies the position once and for all to the extent of the D.I. supporting the entitlement of the petitioner to her provident fund dues. There is no evidence on record to show that the D.I. ever expressed any objection to the petitioner being paid her rightful dues. The support shows by the D.I. to the cause of the petitioner is relevant since any amount pertaining to H.R.A. dues can only go to the coffers of the State Government and not to the school. The decision in Gorakhpur University (supra) reiterates the settled position that 6 retirement dues cannot be seen any more as bounty which can be withheld by the concerned authorities on an arbitrary whim or fancy. It should be noted that in that decision the Supreme Court went as far as to note that withholding of quarters allotted while in service even after retirement cannot be a valid ground to withhold the disbursement of the terminal benefits due to a teacher.
By reason of the above discussion, this Court finds no grounds disclosed by the Headmaster in his affidavit to withhold the provident fund dues of the petitioner or continue to delay the disbursement of the same. There has already been a delay of one year seven months from the date of retirement of the petitioner. There is every reason to hold that the concerned respondents should compensate the petitioner for such unreasonable and unexplained delay. In view of the same, the respondent nos.5 and 6 together with the Managing Committee of the concerned school are directed to release the provident fund which has accumulated in favour of the petitioner within seven days from today together with interest @ 9% per annum calculated on and from 31st January, 2018 till payment of the provident fund dues to the petitioner. The concerned authorities who have been made parties to the writ petition will ensure that the petitioner shall get the amount within 22nd August, 2019. Since the school authorities are not entitled to the amount shown to be allegedly due from the petitioner, the said issue does not merit any decision in this writ petition.
W.P.3247 (W) of 2019 is disposed of in terms of the above.
(Moushumi Bhattacharya, J.)