JAYA BHATTACHARYAversusTHE STATE OF WEST BENGAL & ORS.

                [2025] 2 S.C.R. 1325 : 2025 INSC 270

                        Jaya Bhattacharya
                                 v.
                  The State of West Bengal & Ors.
                 (Civil Appeal No(s). 3254-3256 of 2025)
                             25 February 2025
           [B.R. Gavai and Prashant Kumar Mishra,* JJ.]


                          Issue for Consideration
       Matter pertains to the entitlement of the appellant to pensionary
       benefits, when her unauthorised absence for twenty years was
       treated as extraordinary leave and her service was regularised.

                                 Headnotes†
       Service law – West Bengal Service (Death-cum-Retirement
       Benefit) Rules, 1971 – rr.28A, 175, 176(4) – Pensionary
       benefits – Entitlement, when unauthorised absence of leave
       treated as extraordinary leave – Appellant-government
       employee, remained absent from duty for 107 days and
       thereafter from 1987 to 2007 – Her allegations 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 – Series of litigations – In 2011,
       appellant’s unauthorised absence from 1987 to 2007 treated as
       extraordinary leave and service regularised, and was allowed
       to join back however, not entitled for leave salary during the
       period of absence – Application for grant of pension and
       other retiral benefits by the appellant – Tribunal held that the
       order refusing pension justified – Writ petition thereagainst
       dismissed by the High Court for want of prosecution – Review
       application and restoration petition also dismissed – Challenge
       to:
       Held: 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 unauthorised



* Author
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    leave for denying the pensionary benefits – Thus, 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 – Furthermore, despite tribunal’s order
    directing the Collector to cause a departmental inquiry in respect
    of the appellant’s allegations, no such inquiry was ever conducted
    by the respondents/authorities – Appellant condemned unheard
    without subjecting her to any departmental inquiry – Respondents’
    failure to conduct an inquiry as per tribunal’s order cannot shift the
    burden on appellant to prove that she was prevented from working –
    In view thereof, the appellant entitled for pension – However, not
    entitled for arrears of pension. [Paras 11, 12]

                                List of Acts
    West Bengal Service (Death-cum-Retirement Benefit) Rules, 1971.

                             List of Keywords
    Pension; Unauthorised leave; Extraordinary leave; Departmental
    proceeding; Denial of pensionary benefits; Break in service;
    Review application; Restoration petition; Unauthorised absence
    of leave treated as extraordinary leave; Signing of the attendance
    register; Period of absence; Grant of pension and other retiral
    benefits; Departmental inquiry; Unauthorizedly absence; Arrears
    of pension.

                            Case Arising From
    CIVIL APPELLATE JURISDICTION: Civil Appeal No(s). 3254-3256
    of 2025
    From the Judgment and Order dated 13.07.2023, 06.09.2023
    and 21.12.2023 of the High Court at Calcutta in WPST No.
    234 of 2015, CAN No. 1 of 2023 and RVW No. 275 of 2023
    respectively

                        Appearances for Parties
    Advs. for the Appellant:
    Rahul Arya, Madhav Bhatia, Rohit Amit Sthalekar.
    Advs. for the Respondents:
    Ms. Mantika Haryani, Ms. Astha Sharma, Bhanu Mishra.
[2025] 2 S.C.R.                                                          1327

         Jaya Bhattacharya v. The State of West Bengal & Ors.


                Judgment / Order of the Supreme Court

                                 Judgment

     Prashant Kumar Mishra, J.

     Leave granted.
2.   These appeals arise from the judgment and orders dated 13.07.2023
     passed in WPST No. 234 of 2015, 06.09.2023 in CAN No. 1 of 2023
     in WPST No. 234 of 2015 and 21.12.2023 in RVW No. 275 of 2023
     in CAN No. 1 of 2023 in WPST No. 234 of 2015, whereby the High
     Court has dismissed the writ petition as well as Review Application
     on account of non-prosecution and the application for recalling the
     order dated 06.09.2023 met the same fate as the advocate remained
     unable to assist the Court on merits.
3.   Although, the writ petition was not adjudicated on merits and the
     prayer in these civil appeals is for restoration of writ petition, however,
     considering long pendency of the lis for about 25 years, we deem
     it appropriate to decide the issue on merits.

     Factual matrix:
4.   On 20.03.1986, the appellant was appointed and joined as L.D.
     Assistant in the Office of Block Development Officer, Jhargram. While
     she was posted in the Office of Sub-divisional Officer, Jhargram
     (Respondent No. 3), she remained absent from duty for 107 days
     and thereafter again from 29.06.1987 to 12.07.2007. She submitted
     a complaint on 17.02.1987 that she was restrained from signing the
     attendance register. However, on 15.06.1987 the respondent no. 3
     issued a show cause notice to the appellant as to why disciplinary
     proceedings should not be initiated against her for her unauthorized
     absence. The appellant submitted her reply and also wrote to the
     Secretary, Board of Revenue complaining about denial of joining.
     She preferred writ petition, which was later transferred to the State
     Administrative Tribunal, West Bengal and registered as T.A. No.
     1843 of 1997. The Tribunal disposed of the matter on 24.11.2000
     closing the proceedings on the ground that since no departmental
     proceedings have been initiated, there is nothing to be adjudicated.
     This order of the Tribunal was challenged before the High Court in
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     WPCT No. 270 of 2001 in which the Tribunal’s order was set aside,
     remitting the matter back to the Tribunal.
5.   On remand, the Tribunal passed an order on 01.12.2003 directing
     the Collector, Midnapur (West) to cause a departmental proceeding
     in respect of the allegations that though she joined the office and
     signed the attendance register she was not allowed to perform
     her duties and that she was not paid salary for the month of May,
     1987 onwards. It was further directed that she should be given an
     opportunity of hearing and appropriate order be passed in respect
     of the payment of salary of the appellant and in respect of allowing
     her to discharge her duties, within a period of four months.
6.   The appellant challenged the second order of the Tribunal in Writ
     Petition No. 278 of 2004 which was disposed of directing the
     respondents/authorities to allow the appellant to resume her duties
     forthwith preferably within 48 hours from the date of communication
     and she must discharge her duties, if resumed, and if any salary
     remaining legitimately due and payable, the same shall be paid in
     terms of the order of the Tribunal. However, the respondents are
     not precluded from taking lawful action against the appellant, as
     may be advised.
7.   On 19.05.2011, the appellant’s unauthorized absence from 29.06.1987
     to 12.07.2007 has been treated as extraordinary leave and service
     has been regularized as per Rule 175 and Rule 176 (4) of the West
     Bengal Service (Death-cum-Retirement Benefit) Rules, 1971 which
     provides that a government employee on extraordinary leave is not
     entitled to any leave salary. Basing on this, the appellant was informed
     by respondent no. 3 on 07.06.2011 that you have been allowed to
     join back on 13.07.2007 and your pay has been refixed. However,
     she is not entitled for leave salary etc. during the period of absence.
8.   The appellant again preferred O.A. No. 1347 of 2012 before the
     Tribunal for grant of pension and other retiral benefits. The main issue
     before the Tribunal was whether the appellant fulfilled the requisite
     criteria to be entitled to pension in terms of the relevant rules for
     the purpose. The Tribunal concluded that the extraordinary leave
     granted to her being not on any of the grounds listed under Rule
     28A of the West Bengal Service (Death-cum-Retirement Benefit)
     Rules, 1971, the period of extraordinary leave allowed to her cannot
     be considered as qualifying service to be entitled to pension/family
[2025] 2 S.C.R.                                                     1329

         Jaya Bhattacharya v. The State of West Bengal & Ors.


     pension as stipulated in G.O. NO. 201-F (Pen.) dated 25.02.2009,
     hence the order refusing pension is fully justified.
9.   Challenging this order of the Tribunal, the appellant preferred
     writ petition which was dismissed for want of prosecution and
     subsequently her review application and restoration petition have
     also been dismissed.
10. We have heard learned counsel for the parties and perused the record.
11. 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. Even though the order passed by the
    respondents/authorities on 19.05.2011 that her unauthorized absence
    is treated as extraordinary leave and her service is regularized was
    not challenged subsequently, the fact remains that the appellant has
    been condemned unheard without subjecting her to any departmental
    inquiry despite Tribunal’s order. 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. 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 unauthorised
    leave for denying the pensionary benefits. The respondents could
    have denied the pension to the appellant by proving that she was
    unauthorizedly absent for the subject period and not by refusing to
    hold an inquiry against her.
12. In our considered view, 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. In
    the peculiar facts and circumstances of this case, we are of the
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    considered view that the appellant would be entitled for pension.
    We, accordingly, direct the respondents/authorities to finalise the
    appellant’s pension within a period of three months. However, the
    appellant shall not be entitled for any arrears.
13. The Civil Appeals are disposed of in the above terms.

    Result of the case: Appeals disposed of.




    †
        Headnotes prepared by: Nidhi Jain