Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 610 (PAT)

Saraswati Devi v. State Of Bihar

2000-04-20

RADHA MOHAN PRASAD

body2000
Judgment 1. In the facts and circumstances, the cost awarded, vide order dated 27.3.2000, to be deposited with the Secretary, Patna High Court Council of Legal Aid & Advice is hereby recalled. 2. The petitioner, who claims to be the wife of Ex-Havildar, Brij Bihari Singh and legally appointed guardian of her husband, has sought for quashing of the order dated 7.8.1990 (Annexure 10), whereby she has been communicated that her husband had been terminated from service, thus, she is not entitled for payment of pension and gratuity. It was, however, stated that accordiing to rules, she will be entitled for the amount deposited in provident fund for which she should fill up final withdrawal for of G.P.F. so that further action may be taken accordingly. Learned Government Pleader No. VII has submitted that the amount of provident fund has already been paid to the petitioner. A photo copy of the same has been annexed as Annexure A to the supplementary counter affidavit filed today. 3. In short, the relevant facts are that while the husband of the petitioner was posted at Ranchi, he became mentally sick and got admitted for treatment for his mental disorder on 11.3.1972 in the Mental Hospital, Kanke, Ranchi from where he was discharged on 6.4.1972. However, he was advised for a prolonged treatment and check-up after three months. Finally the husband of the petitioner was examined on 11th January, 1988 and he was completely declared unfit to work in the Police Department. However, from the proceeding index book and the district order produced today on behalf of the respondents, it appears that vide order dated 23.1.1974 passed by the Senior Superintendent of Police, the husband of the petitioner was dismissed from the Force with effect from the date he absented himself from 1.1.1973. From the said order recorded by the then Senior Superintendent of Police on 23.1.1974, it is evident that he was not issued any show cause notice against dismissal because he was allegedly absconding and there was no trace of the individual. 4. It appears that the petitioner being faced with the situation of starvation filed an application before the respondents and lastly, before the Lokayukta for a direction to the respondents for payment of retirement benefits of her husband. 4. It appears that the petitioner being faced with the situation of starvation filed an application before the respondents and lastly, before the Lokayukta for a direction to the respondents for payment of retirement benefits of her husband. It is stated that the petitioners husband (since mentally sick) was not in a position even to apply for his retiral dues or any other emoluments which are payable to him under the rules. It is further claimed that the petitioner made frequent applications to the Director General of Police, the Senior Superintendent of Police and the Deputy Inspector General of Police Chhotanagpur Region, Ranchi and Lokayukta the details of which are mentioned in paragraph 8 of the writ petition. On failure to get redressal from the said authorities, she moved the District & Sessions Judge, Saran at Chapra in Guardian Case No. 27 of 1996 and after due consideration the learned Session Judge passed the order on 6.9.1997, contained in Annexure 8. In the facts and circumstances, it was held that the husband of the petitioner is mentally unsound and is unfit to work in service. Under the circumstances, the husband of the petitioner was declared mentally sick and she being the closest one and guardian of her husband was appointed as legal guardian of her husband to look after the welfare and property of her husband. Accordingly, the Sessions Judge directed for issuance of guardian certificate to the petitioner. 5. It is stated that out of the three daughters, one has already been married somehow with the help of near relations and two of them are still unmarried and they are at the marriageable stage. The family has to manage the burden of the petitioner, her husband, her only minor son and two unmarried daughters. It is further stated that she was earlier not aware about the entitlement of retiral benefits of her husband. The Senior Superintendent of Police, Ranchi, vide impugned order, communicated her that since her husband was dismissed from service, he was not entitled for any pensionary benefits. 6. Undisputedly, the petitioners husband joined the service in the year 1959. Thus, even if it is considered that at the time of his appointment he possessed the minimum age i.e. 18 years prescribed for such service, he would normally retire in the year 1999 and, thus, became eligible to get retirement benefits in the year 1999. 6. Undisputedly, the petitioners husband joined the service in the year 1959. Thus, even if it is considered that at the time of his appointment he possessed the minimum age i.e. 18 years prescribed for such service, he would normally retire in the year 1999 and, thus, became eligible to get retirement benefits in the year 1999. However, in view of the aforementioned order passed by the Senior Superintendent of Police, the respondent authorities treated him to be a dismissed Havildar from Police Service and as such it has been submitted by the learned Government Pleader no. VII that the petitioner is not entitled for any pensionary benefits except the amount contributed towards provident fund. 7. This Court is unable to appreciate the said submission of the learned Government Pleader no. VII. Admittedly, the order of dismissal, which was recorded in the aforementioned two registers were passed without giving any notice. Moreover, nothing has been brought on record to show that the said order of dismissal, which has been sought to be made effective from retrospective date, was ever issued and communicated. This Court finds substance in the submission of the learned counsel for the petitioner that right from the initial stage, the so-called order of dismissal, in the facts and circumstances aforementioned, is a nullity in the eye of law. 8. It is by now well settled that the order of dismissal cannot be passed without complying with the requirement of the provisions contained in the relevant rules and at least the rules of natural justice. In fact, initially there was a provision contained in rule 76 of the Bihar Service Code laying down that absence from duty without leave for a period of five years results in the employment of a Government servant coming to an end. The rule did not envisage passing of any order. The cessation of service was automatic and was a consequence of the applicability of the rules. A Division Bench of this Court in the case of Sobhana Das Gupta V/s. State of Bihar, reported in 1974 PLJR 382, has considered the validity of the said rule and testing from this point of view, that part of rule 76 was struck down as invalid. A Division Bench of this Court in the case of Sobhana Das Gupta V/s. State of Bihar, reported in 1974 PLJR 382, has considered the validity of the said rule and testing from this point of view, that part of rule 76 was struck down as invalid. Thereafter it appears that rule 76 was amended which provided for following of the provisions of Civil Services (Classification, Control & Appeal) Rules, 1930 and Bihar & Orissa Subordinate Service (Discipline and Appeal) Rules, 1935 before removal in such cases. The said judgment of this Court was passed on 1st March, 1973, still it appears that the petitioner was dismissed from service by recording of order on 23.2.1974 pursuant to the said invalid provision without complying with the relevant rules relating to removal from service. Accordingly, the petitioner has been illegally and arbitrarily denied the post retiral benefits by treating her husband as a dismissed Government servant. 9. Rule 101 of the Bihar Pension Rules, 1950 provides that resignation of the public service or dismissal or removal from it for misconduct, insolvency, inefficiency not due to age, or failure to pass a prescribed examination entaiis forfeiture of past service. No other provision has been brought to the notice of this Court by the learned Government Pleader under which past service of the husband of the petitioner can be forfeited for the purpose of computation of pensionary benefits. It may be true that the husband of the petitioner may not be entitled for any salary for the period of his unauthorised absence if no leave was due or he may not have earned any leave during his said absence, but in the absence of any provision under which his past service can be forfeited for the purpose of computation of pensionary benefits, this Court does not find any valid justification for keeping them deprived of the said benefit. This action of the respondents is wholly without jurisdiction and mala fide so much so that even with respect to the payment of provident fund, vide Anneuxre A, no calculation chart has been supplied and it is not clear as to whether statutory interest has been paid on the said amount till the payments were made on 7.10.1995. 10. In the result, the writ application is allowed. The respondents are directed to issue necessary sanction order with respect to entire pensionary dues accordingly within three weeks. 10. In the result, the writ application is allowed. The respondents are directed to issue necessary sanction order with respect to entire pensionary dues accordingly within three weeks. The Senior Superintendent of Police, Ranchi is directed to furnish the entire calculation chart with respect to G.P.F. to the petitioner within two weeks. He should also examine as to whether the statutory interest on G.P.F. has been calculated till the date payment was made and if not then he should issue necessary sanction order with respect to it within three weeks. 11. In the facts and circumstances of this case, this Court directs that the petitioner shall be entitled for a cost of Rs. 2,000/- (two thousand), which shall also be paid to the petitioner within the aforesaid time.