Kiran Raj

The Supreme Court of India has directed the concerned authorities to finalize the pension of a government employee within three months following the regularization of her service. The Court observed that after treating her long absence as extraordinary leave and regularizing her service, the authorities could not deny her pension. It was recorded that no departmental inquiry had been conducted despite an order from the Tribunal.

The appellant was appointed as a Lower Division Assistant in the Office of the Block Development Officer, Jhargram, on March 20, 1986. While posted in the Office of the Sub-Divisional Officer, Jhargram, she remained absent from duty for 107 days and subsequently from June 29, 1987, to July 12, 2007. On February 17, 1987, she submitted a complaint alleging that she had been prevented from signing the attendance register.

On June 15, 1987, the Sub-Divisional Officer issued a show-cause notice to the appellant, requiring her to explain why disciplinary proceedings should not be initiated against her for unauthorized absence. In response, the appellant submitted a reply and wrote to the Secretary, Board of Revenue, stating that she had been denied an opportunity to join duty.

The appellant filed a writ petition, which was transferred to the State Administrative Tribunal, West Bengal, and registered as T.A. No. 1843 of 1997. On November 24, 2000, the Tribunal disposed of the case, concluding that there was nothing to adjudicate as no departmental proceedings had been initiated.

This decision was challenged before the High Court in WPCT No. 270 of 2001. The High Court set aside the Tribunal’s order and remanded the case. On December 1, 2003, the Tribunal directed the Collector, Midnapore (West), to conduct a departmental inquiry regarding the appellant’s claim that she had been prevented from performing her duties and had not been paid her salary from May 1987 onwards. The Tribunal ordered that she be given a hearing and that appropriate orders be passed regarding her salary and reinstatement.

The appellant filed Writ Petition No. 278 of 2004, which was disposed of with directions that she be allowed to resume duty immediately and that any outstanding salary be paid in terms of the Tribunal’s order. The respondents were permitted to take lawful action as deemed necessary.

On May 19, 2011, the authorities treated the appellant’s absence from June 29, 1987, to July 12, 2007, as extraordinary leave and regularized her service under Rule 175 and Rule 176(4) of the West Bengal Service (Death-cum-Retirement Benefit) Rules, 1971. Under these provisions, an employee on extraordinary leave is not entitled to leave salary. On June 7, 2011, she was informed that she had been allowed to rejoin duty but would not receive any leave salary for the period of absence.

Subsequently, the appellant filed O.A. No. 1347 of 2012 before the Tribunal, seeking pension and other retirement benefits. The Tribunal recorded that the primary issue was whether she fulfilled the eligibility criteria under the relevant service rules.

The Tribunal ruled that the appellant’s extraordinary leave did not fall within the grounds specified under Rule 28A of the West Bengal Service (Death-cum-Retirement Benefit) Rules, 1971. It stated that the period of extraordinary leave could not be counted as qualifying service for pension as per Government Order No. 201-F (Pen.) dated February 25, 2009, and upheld the order denying pension.

The appellant challenged this order before the High Court, but her writ petition was dismissed due to non-prosecution. Her subsequent review application and restoration petition were also dismissed.

The Supreme Court observed that the authorities had not conducted the departmental inquiry as directed by the Tribunal in 2003. The Court recorded:

"What is discernible from the record is that despite Tribunal’s order dated 01.12.2003 directing the Collector to cause a departmental inquiry in respect of the appellant’s allegations to the effect that though she joined the office and signed the attendance register she was not allowed to perform her duties and was not paid salary from May, 1987 onwards, no such inquiry was ever conducted by the respondents/authorities.”

The Court further stated that the failure to conduct the inquiry could not shift the burden of proof to the appellant. It recorded:

"Any observation by the Tribunal or the High Court in subsequent proceedings that the appellant failed to demonstrate that she was prevented from performing her duties would not enure to the benefit of the respondents for the simple reason that the said fact could have been established either for or against the appellant only in a duly constituted departmental inquiry. The respondents’ failure to conduct an inquiry as per Tribunal’s order cannot shift the burden on the appellant to prove that she was prevented from working."

Regarding pension entitlement, the Court recorded:

"Denial of pensionary benefits to an employee must emanate from any rule enabling the government for such denial. When the services have been regularized by treating the same as extraordinary leave, the same cannot be treated as unauthorized leave for denying the pensionary benefits."

The Court also stated:

"Having once regularized her service during the period of absence by granting extraordinary leave, it cannot be held that the said period can be treated as break in service."

The Supreme Court directed the authorities to finalize the appellant’s pension within three months. It recorded:

"We, accordingly, direct the respondents/authorities to finalize the appellant's pension within a period of three months. However, the appellant shall not be entitled for any arrears.”

The Supreme Court disposed of the appeals in the above terms.

Case Title: Jaya Bhattacharya v. The State of West Bengal & Ors.
Case Number: 2025 INSC 270; SLP(C) No(s). 8850-8852 of 2024
Bench: Justice B.R. Gavai, Justice Prashant Kumar Mishra

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