Supreme Court of India
JAYA BHATTACHARYAversusTHE STATE OF WEST BENGAL & ORS.
- Citation
- 2025 INSC 270
- Decided
- 25 February 2025
- Disposal
- Disposed off
Holding
When service has been regularised by treating an absence as extraordinary leave, that period cannot be considered unauthorized for the purpose of denying pensionary benefits.
Summary
The appellant, Jaya Bhattacharya, a former L.D. Assistant in West Bengal, was absent from duty for 107 days in 1986 and subsequently from June 1987 to July 2007, claiming she was prevented from performing duties and not paid salary. The authorities treated the long absence as extraordinary leave under Rules 175 and 176(4) of the West Bengal Service (Death-cum-Retirement Benefit) Rules, 1971, regularising her service but denying leave salary and later refusing pension on the ground that the extraordinary leave did not qualify as service under Rule 28A. The appellant filed multiple writ petitions, a tribunal case, and a review, all of which were dismissed without a departmental inquiry into her allegations. The Supreme Court held that once service is regularised by granting extraordinary leave, the period cannot be deemed unauthorized for the purpose of denying pensionary benefits, and the burden cannot be shifted to the employee. Consequently, the Court ordered the respondents to grant the appellant her pension, but not any arrears. The appeals were disposed of accordingly.
Issues considered
- When an employee's long unauthorized absence is regularised as extraordinary leave, can that period be treated as a break in service for the purpose of denying pensionary benefits?
- Must the denial of pension be based on a specific rule that authorises such denial?
- Does the failure to conduct a departmental inquiry as directed by the tribunal shift the burden of proof to the employee?
- Is the appellant entitled to pension but not arrears of pension?
Legislation cited
- West Bengal Service (Death-cum-Retirement Benefit) Rules, 1971s. Rule 175, s. Rule 176(4), s. Rule 28A
Headnote
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 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
Subjects
PensionUnauthorised leaveExtraordinary leaveDepartmental proceedingDenial of pensionary benefitsBreak in serviceReview applicationRestoration petitionUnauthorised absence of leave treated as extraordinary leaveSigning of the attendance registerPeriod of absenceGrant of pension and other retiral benefitsDepartmental inquiryUnauthorizedly absenceArrears of pension
Judgment
[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
1326 [2025] 2 S.C.R.
Supreme Court Reports
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
1328 [2025] 2 S.C.R.
Supreme Court Reports
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
1330 [2025] 2 S.C.R.
Supreme Court Reports
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
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