Calcutta High Court (Appellete Side)
Uttam Kumar Khan vs State Of West Bengal & Ors on 17 May, 2017
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Mr. Justice Subrata Talukdar
W.P. 18150(W) of 2005
Uttam Kumar Khan
-vs.-
State of West Bengal & Ors.
For the Petitioner : Mr. Biswaroop Bhattacharya
Ms. Tannistha Bandyopadhaya
For the State : Sk. Mujibar Rahaman
For the K.M.D.A. : Mr. Parth Sarathi Basu
Mr. Satyajit Takukdar
Heard on : 06/01/2017
Judgement on : 17/05/2017
Subrata Talukdar, J.:
In this writ application the writ petitioner claims pro-rata pension along with connected death-cum retirement benefits as admissible to him from his erstwhile employer, the Kolkata Metropolitan Development Authority (for short KMDA).
The facts of this case, in brief, are as follows:-
That the petitioner joined the KMDA (the erstwhile Calcutta Metropolitan Development Authority, CMDA) on 2nd January, 1987 as Assistant Engineer (Civil) (for short AE(Civil). The service of the petitioner was confirmed on 19th March, 1990.
Thereafter on 24th December, 1987 the service of the petitioner was lent to the West Bengal State Warehousing Corporation (for short the Corporation), a State Government undertaking for a period of one year w.e.f. the date of his release from KMDA. The petitioner thereafter joined the Corporation as Construction Engineer (CE) upon his release from KMDA on 31st December, 1997.
The lien of the petitioner to his post at KMDA was extended for a total period of two years. However, w.e.f. 10th November, 1997 the service of the petitioner was absorbed with the Corporation and, consequent to such absorption his lien with the KMDA stood terminated. The petitioner ultimately retired from the Corporation and, does not complain of any outstanding death-cum retirement benefits due and payable to him from the Corporation. However, the petitioner is aggrieved by the fact that inspite of repeated representations addressed by him to the relevant authorities of the KMDA, his pro-rata pension along with gratuity and leave salaries qua his qualifying service with KMDA is yet to be released.
Mr. Biswaroop Bhattacharya, Ld. Counsel appearing for the petitioner submits that the petitioner has put in qualifying service with KMDA for a total period of 12 years 9 months and 28 days (for short the qualifying service), which includes the lien period of two years. The petitioner also claims interest on the delayed release of the pro-rata pension, gratuity and leave salaries (supra).
Mr. Bhattacharya points out that there is no ambiguity that the petitioner was a regular employee of KMDA till his absorption in the Corporation w.e.f. 1997. Mr. Bhattacharya submits that in recognition of his regular service, the petitioner has received the benefit of 10 year Career Advancement Scheme (CAS) under the KMDA. Ld. Counsel for the petitioner relies upon the Notification of the State Government bearing the No. 2567-F dated 30th March, 1976 (for short the 1976 Notification) in exercise of powers conferred under Article 309 of the Constitution of India. The attention of this Court is also drawn to the Amendment of Rule 189 of the West Bengal Death- cum Retirement Benefit Rules, 1971 (for short the 1971 DCRB Rules) by incorporating Rule 189A thereto.
Rule 189A (supra) provides, inter alia, for grant of pro-rata pension and gratuity on the length of the incumbent's qualifying service under the State Government prior to being absorbed in any post under a Corporation or Company, either wholly or substantially controlled by the State Government. The manner of payment of such pro-rata pension and gratuity upon exercise of option is also provided by Rule 189A (supra).
On behalf of the petitioner reliance is further placed on the provisions of the Memorandum No. 7091-F of the Finance Department, Audit Branch of the Government of West Bengal dated 19th July, 1986 laying down the modalities for a lump sum or one- time payment of pro-rata pension and other retirement benefits in terms of the Rules and Tables of commutation of such benefits.
Arguing on behalf of the respondents/KMDA, Mr. Partha Sarathi Basu, Ld. Senior Counsel with Mr. Satyajit Talukdar, Ld. Counsel relies on an affidavit of the KMDA to make the point that upon expiry of the lien of the petitioner his service book was reconstructed and the admissible dues disbursed in his favour. The admissible dues relate to his unutilised leave salaries as well as his Provident Fund (PF) allocation.
Mr. Basu further points out from the affidavit of the KMDA that, although the petitioner was entitled to a gratuity amount, such amount is liable to be adjusted against the house building advance allotted in his favour with accrued interest till the last date of his lien, i.e. 31st of December, 1999. However, since complete details relating to his liabilities payable to KMDA on the above noted score were not disclosed by the petitioner, his dues, if any, could not be further processed.
At Paragraph 10 of KMDA' affidavit, the legal point is urged by its Ld. Counsel that the service of the petitioner would be deemed to have terminated with the expiry of his lien with KMDA since, the petitioner, on such expiry, neither returned to KMDA nor resigned. Accordingly, the KMDA is entitled to treat the service of the petitioner as a case of voluntary resignation which is liable to be dealt with under Rule 168(A)(5)(a)(ii) of the West Bengal Service Rules (for short the WBSR). It was further found that the petitioner is entitled to his benefits under CAS and GPF only after adjustment of the amount still recoverable from him towards house building advance.
Having heard the parties and considering the materials placed, this Court is first required to notice the law on the issue of lien. It is settled in service jurisprudence that the lien of an employee stands terminated from his previous post on his substantive appointment in another post. Since lien, in service law, denotes the right of a public servant to hold the post substantively to which he is appointed, expiry of lien in the previous post which, precedes the approval of lien in the next substantive post, must be deemed to be automatic without requiring a formal order of termination.
In other words, on confirmation of his service with KMDA the petitioner acquired a lien on such post with the KMDA. The lien was continued with the KMDA for a period of 2 years during which the petitioner was required to serve under the Corporation. With the absorption of the petitioner in the Corporation, his lien with the KMDA automatically expired and, his lien to the substantive post held by him under the Corporation commenced.
Inspiration with regard to the above noted discussion can be drawn from the decision In Re: Ramlal Khurana vs. State of Punjab reported in 1989(4) SCC 99 at Paragraph 8 thereof as well as In Re: State of Rajasthan & Anr. vs. S.N. Tiwari & Ors. reported in 2009 (4) SCC 700 at Paragraph 17, 18 and 19 which respectively read as follows:-
1984 (4) SCC 99 (supra) "8. The other contention urged for the appellant that he was not confirmed in the Excise Department and unless confirmed, he acquired no lien cannot also be accepted. Lien is not a word of art. It just connotes the right of a civil servant to hold the post substantively to which he is appointed. Generally when a person with a lien against a post is appointed substantively to another post, he acquires a lien against the latter post. Then the lien against his previous post automatically disappears. The principle being that no government servant can have simultaneously two liens against two posts in two different cadres. It is a well accepted principle of service jurisprudence.
2009 (4) SCC (supra)
17. It is very well settled that when a person with a lien against the post is appointed substantively to another post, only then he acquires a lien against disappears. Lien connotes the right of a civil servant to hold the post substantively to which he is appointed. The lien of a government employee over the previous post ends of he is appointed to another permanent post on permanent basis. In such a case the lien of the employee shifts to the new permanent post. It may not require a formal termination of lien over the previous permanent post.
18. This Court in Ramlal Khurana vs. State of Punjab observed that:
"8. ........Lien is not a word of art. It just connotes the right of a civil servant to hold the post substantively to which he is appointed."
19. The term "lien" comes from the Latin term "ligament" meaning "binding". The meaning of lien in service law is different from other meanings in the context of contract, common law, equity, etc. The lien of government employee in service law is the right of the government employee to hold a permanent post substantively to which he has been permanently appointed."
This Court must further notice that the petitioner did not suffer from any break in service at the moment of termination of the lien with KMDA and, beginning in substantive capacity with the Corporation. No disciplinary proceeding was drawn up against the petitioner nor, the petitioner was held liable for any misconduct or, causing any financial loss to KMDA so as to disentitle him from claiming his death-cum-retirement benefits.
Accordingly, this Court is of the clear view that the stretch of service of the petitioner under the KMDA, inclusive of his lien period, must be treated to be continuous.
This Court must also notice the settled legal position that pension is not a bounty. It has been consistently upheld by judicial authorities that pension is property and, therefore a legally enforceable right under the Constitution.
This Court must further notice the consistent legal view that in the absence of good reasons in the nature of an alleged misconduct or, causing financial loss which is serious enough to withhold pension and other death-cum-retirement benefits, the employer is not competent to withhold such benefits. It is admittedly not the case of the KMDA that the petitioner was, at any point of time, while serving with the KMDA punished or, even proceeded against in a disciplinary proceeding.
This Court also finds little justification in the argument placed on behalf of KMDA that the petitioner must be deemed to have resigned from his service on the expiry of his lien period. Such deemed resignation is alien to the concept of lien, as already discussed above. The termination of lien by KMDA consequent to the absorption of the petitioner under the Corporation, makes him eligible to count his regular and continuous service under the KMDA for claiming benefits.
This Court must notice the further argument that the 1976 Notification as well as the Memo dated 19th July, 1986 (supra) recognise the claim to pro-rata pension and other retirement benefits on permanent absorption in a subsequent service under a State Government Undertaking, Corporation or Company.
This Court illustratively notices that different classes of pension are elucidated under Rules 35 to 41 of the Central Civil Services (Pension) Rules, 1972 (for short the 1972 Rules). Rule 37 of the 1972 Rules deals with pension on absorption in or under a Corporation or Company or Body wholly or substantially owned/controlled by the Central Government or State Government. Rule 37, inter alia, reads as follows:-
"37. Pension on absorption in or under a corporation, company or body. - (1) A government servant who has been permitted to be absorbed in a service or post in or under a Corporation or Company wholly or substantially owned controlled by the Central Government or a State Government or in a or under a body controlled or financed by the Central Government or a State Government, shall be deemed to have retired from service from the date of such absorption and subject to Sub-rule (3), he shall be eligible to receive retirement benefits, if any, from such date as may be determined, in accordance with the orders of the Central Government applicable to him.
Explanation.- Date of absorption shall be -
(i) in case a Government employee joins a Corporation or Company or body on immediate absorption basis, the date on which he actually joins that Corporation or Company or body;
(ii) in case a Government employee initially joins a Corporation or Company or body on foreign service terms by retaining a lien under the Government, the date from which his unqualified resignation is accepted by the Government. (2) The provisions of Sub-rule (1) shall also apply to Central Government servants who are permitted to be absorbed in joint sector undertakings, wholly under the joint control of Central Government and State Governments/Union Territory Administrations or under the joint control of two or more State Governments/Union Territory Administrations. (3) Where there is a pension scheme in a body controlled or financed by the Central Government in which a Government servant is absorbed, he shall be entitled to exercise option either to count the service rendered under the Central Government in that body for pension or to receive pro rata retirement benefits for the service rendered under the Central Government in accordance with the orders issued by the Central Government.
Explanation.- Body means autonomous body or statutory body."
Therefore, to the mind of this Court the principles connected to the category of Absorption Pension - under the 1972 Rules (supra) is pari materia to the provisions of the 1976 Notification and 1986 Memorandum of the State (supra). Accordingly, this Court finds that the petitioner is eligible to be considered in connection with his claim to retirement benefits till the last date of his lien with KMDA. It is further found that the retirement benefits received by the petitioner from the Corporation are immaterial to and, cannot impact the assessment of his qualifying service under the KMDA.
In the back drop of the above discussion, the Secretary, Urban Development Department, Government of West Bengal being the respondent No.1 is directed to consider the claim of the petitioner for pro-rata pension and other admissible retirement benefits upon allowing the adjustments towards his liabilities on evaluation of his record of service with the KMDA in accordance with the rules and, taking notice of the observations as recorded above.
The Chief Executive Officer of the KMDA, the respondent No.2 shall, as considered necessary by the respondent No.1 depute a competent officer conversant with the facts to assist the respondent No.1 in completing the above noted exercise. The respondent No.1 shall also receive necessary cooperation from the petitioner or, through his authorised representative, as and when called for.
The respondent No.2 shall be entitled to take consequential steps on the basis of the reasoned decision of the respondent No.1. Considering the long pendency of the claim of the writ petitioner, the respondent No.1 shall be also entitled to award a just quantum of interest to the dues, if arrived at, of the petitioner. In the event interest is denied the respondent No.1 shall record reasons for the same. The petitioner shall be entitled to receive the communication of the reasoned order of the respondent No.1.
It is expected that the above noted exercise shall be carried out not later than twelve weeks from the date of communication of this order.
WP 18150(W) of 2005 stands accordingly disposed of. Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Subrata Talukdar, J.)