When Employee’s Services Was Regularized By Granting Extraordinary Leave, It Can’t Be Then Treated As Unauthorised Leave For Denying Pensionary Benefits: Supreme Court
The Apex Court was considering the appeals arising from the judgment whereby the High Court dismissed the writ petition as well as the Review Application of the appellant-employee.
The Supreme Court granted pensionary benefits to a Government employee and held that 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 a break in service.
The Apex Court was considering the appeals arising from the judgment whereby the High Court dismissed the writ petition as well as the Review Application of the appellant-employee on account of non-prosecution.
The Division Bench of Justice B.R. Gavai and Justice Prashant Kumar Mishra asserted, “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.”
Advocate Rahul Arya represented the Appellant, while AOR Kunal Mimani represented the Respondent.
Factual Background
The Appellant was appointed 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 June 29, 1987 to July 12, 2007. She submitted a complaint in 1987 that she was restrained from signing the attendance register. However, a show cause notice was issued 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 the denial of joining. She preferred a writ petition, which was later transferred to the State Administrative Tribunal, West Bengal. On remand, the Tribunal directed the Collector to cause a departmental proceeding. In the year 2011, the appellant’s unauthorized absence from June 29, 1987 to July 12, 2007 was treated as extraordinary leave and service had 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.
Based on this, the appellant was informed that she was been allowed to come back, and her pay had been refixed. However, she was held not entitled to leave salary etc., during the period of absence. The appellant again preferred an application before the Tribunal for the grant of pension and other retiral benefits.The Tribunal concluded that the order refusing pension is fully justified. Aggrieved by the dismissal of the Writ Petition and Review Application, the Appellant approached the Apex Court.
Reasoning
The Bench noted that even though the order passed by the respondents/authorities that her unauthorized absence was treated as extraordinary leave and her service was regularized, was not challenged subsequently, the appellant had been condemned unheard without subjecting her to any departmental inquiry despite the Tribunal’s order.
“The respondents’ failure to conduct an inquiry as per the 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”, the Bench said. The Court further held, “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.”
Thus, holding that the appellant would be entitled to pension, the Bench directed the respondents/authorities to finalise the appellant's pension within three months. “However, the appellant shall not be entitled for any arrears”, it added.
Cause Title: Jaya Bhattacharya v. The State of West Bengal & Ors. (Neutral Citation: 2025 INSC 270)
Appearance:
Appellant: Advocate Mr. Rahul Arya, AOR Rohit Amit Sthalekar
Respondents: AOR Kunal Mimani, AOR Astha Sharma
