(A) Constitution of India , Art.309— West Bengal Service (Death-cum-Retirement Benefit) Rules (1971) , R.175— Pensionary benefits – Denial of – Legality – Pensionary benefits were denied on ground of unauthorized absence – Employee pleaded that though she joined office and signed attendance register she was not allowed to perform her duties and was not paid salary – Despite Tribunal’s order directing Collector to cause departmental inquiry in respect of said allegation, no such inquiry was conducted – Treating unauthorized absence as extrAORdinary leave and regularization of service was not challenged – Employee was condemned unheard without subjecting her to any departmental inquiry despite Tribunal’s order – After regularization of service during period of absence by granting extrAORdinary leave, said period could not be treated as break in service – Employee was entitled for pension
(B) Constitution of India , Art.311— Departmental enquiry – Unauthorized absence – Burden of proof – While authority claimed that employee had remained unauthorizedly absent, employee pleaded that though she joined office and signed attendance register she was not allowed to perform her duties and was not paid salary – Denial of pensionary benefits to employee must emanate from any rule enabling government for such denial – Authority had failed to conduct departmental enquiry as per Tribunal’s order – Burden cannot be shifted on employee to prove that she was prevented from working – When services had been regularized by treating same as extrAORdinary leave same could not be treated as unauthorised leave, for denying pensionary benefits – Authority could have denied pension by proving that employee was unauthorizedly absent for subject period and not by refusing to hold enquiry against her – Denial of pension was illegal
Evidence Act (1 of 1872) , S.101— (Para11)