Ram Mohan Sinha vs State of West Bengal

Allumas Kabir, J.—No one appears on behalf of the State Respondents in spite of service of notice in the office of the Legal Remembrancer.

We treat the appeal and the application for stay both as on day''s list and dispose of the appeal and the application accordingly.

This is an application for stay of operation of the order dated January 14, 1991 passed by a learned single Judge of this Court in CO. No. 197(W)/91, dismissing the present Appellant''s writ application on the ground of delay.

Having referred to the facts of the case as set out in the said application for stay, we are of the view that the appeal itself can be disposed of in view of the order which is proposed to be passed. It may be noted that despite service of notice on the Legal Remembrancer. Government of West Bengal, no one appears to oppose this application on behalf of the State of West Bengal and the other State Respondents.

The Petitioner who was working as an Upper Division Clerk in the Calcutta Police Directorate was compulsorily retired from his service on June 8, 1987, under the relevant provision of the West Bengal Services (Classification, Control and Appeal) Rules, 1971. The Appellant/writ Petitioner accepted the said retirement and prayed before the Commissioner of Police, Calcutta, on June 23, 1987, for his pensionary benefits. Thereafter by letter dated December 16, 1987, addressed to the Accountant-General (AGB). West Bengal, the Joint Commissioner of Police (AP), Calcutta, accorded sanction to the payment of provisional pension to the Petitioner with effect from June 19, 1987. While according sanction to the payment of provisional benefits the Joint Commissioner of Police (AP), Calcutta, in para. 2 of the said letter, however, mentioned that provisional pension may be released to the Petitioner but no gratuity shall be paid to him in terms of Rule 10(2) of the West Bengal Services (Death-cum-Retirement Benefits) Rules, 1971, read with G.O. No. 691-F dated January 30, 1981. Further direction was given for recovery of a sum of Rs. 2,911 as alleged overdrawal of pay and allowances from the arrear provisional pension of the Appellant/writ Petitioner.

The said order of the Joint Commissioner of Police according sanction to the payment of provisional pension to the Appellant writ Petitioner and directing that gratuity should not be paid to him also directing (hat a sum of Rs. 2,911 may be recovered from his arrear provisional pension, was challenged by the Appellant/writ Petitioner in the writ application and the said writ application was dismissed by a learned single Judge of this Court on the ground of delay.

During the hearing of the stay application, a decision of a learned single Judge of this Court in the case of Ram Gopal Bhattacharyya v. State of West Bengal and Ors. 1987 (2) S.L.R. 512 has been brought to our notice. In the said case, the learned single Judge was considering the vires of Rule 10(1) of the West Bengal Services (Death-cum-Retirement Benefits) Rules, 1971. The learned single Judge was pleased to declare the said rule ultra vires the provisions of Article 19(1)(f) of the Constitution following the judgment of the Supreme Court in the case of Deokinandan Prasad Vs. The State of Bihar and Others,

We are riot aware as to whether the said judgment of the learned single Judge of this Court has since been reversed in any appeal. In any event, the said judgment of the learned single Judge was based on a decision of the; Supreme Court, as mentioned, hereinbefore. Furthermore, we are in agreement with the reasons of the learned single Judge regarding; the vires of Rule 10(1) of the above-mentioned Rules.

Accordingly, in our view, we do not see as to how after having accorded sanction to the payment of provisional pension, the Joint Commissioner of Police, Calcutta, in his very same letter can give, further direction regarding withholding of gratuity, which is an integral part of the retirement benefits. Furthermore, even the direction for recovery of a sum of Rs. 2,911 from the said arrear provisional pension, in our view, not permissible, after the sanction had been accorded for grant of the said payment.

We, therefore, set aside the order of dismissal of the writ application passed by the learned single Judge. We are also of the view that the Respondent No. 3 was not justified in directing that the payment of gratuity be withheld. We are also of the view that the said Respondent was not justified in directing that a sum of Rs. 2,911 be recovered from the arrear provisional pension of the Appellant/writ Petitioner.

Accordingly the appeal is allowed. There will be no order as to costs.

Paritosh K. Mukherjee, J.

I agree.