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2003 DIGILAW 1050 (JHR)

Phul Kumari Devi v. State Of Jharkhand

2003-08-26

SUDHANSU JYOTI MUKHOPADHAYA

body2003
JUDGMENT S.J. Mukhopadhaya, J. 1. This writ petition has been preferred by petitioner for direction on the respondents to pay her the death-cum-retiral benefits including family pension to which she is entitled on the basis of last pay drawn by her husband. Further prayer has been made to quash the order passed by the Senior Accounts Officer of Accountant General (for short A.G.) (A & E) II. Bihar and Jharkhand contained in letter No. PEN 13-PR-J-453 (01-02) Sa-Patna 3077 dated 4th April, 2002 whereby the said authority while returned the service book of the husband of the petitioner, informed the State Authorities that her husband was wrongly promoted to the higher scale and thereby wrongly given higher revised scale of Rs. 4000-6000/-w.e.f. 1st January, 1996. The pay fixation has been shown in the lower scale of pay and requested the State Authorities to adjust the payment already made. 2. The case of petitioner is that her husband late Harendra Nath Das was in the services of the State and retired on 30th April, 2001 as Headmaster, Primary School, Radha Nagar, Circle- Pakuria, District-Pakur. He was receiving pay of Rs. 5800/-in the revised scale. Her husband late Harendra Nath Das was not paid the total retiral benefits during his life time and died on 4th June, 2002. In the meantime, the respondents issued the impugned letter No. PEN 13-PR-J-453 (01-02) Sa-Patna 3077 elated 4th April,2002 for recovery of excess amount from the retiral benefits of the husband of the petitioner. Further case of the petitioner is that the subsequent Headmaster, namely, Gopal Chandra Roy illegally withdrawn certain amount of retrial benefits by playing fraud and forgery in the name of her husband. The matter was enquired into the instance of the Deputy Commissioner, Pakur, wherein after Pakuria P.S. Case No. 35 of 2002 dated 3rd October, 2002 has been instituted against said Gopal Chandra Roy under Sections 467, 468, 420/409 of the IPC in the FIR, it has been alleged that the accused, Gopal Chandra Roy embezzled and defrauded the gratuity, group insurance, leave encashment and provisional pension amount of her husband late Harendra Nath Das. 3. 3. According to 5th respondent-District Superintendent of Education, Pakur, the A.G. (A & E) II, Bihar vide Letter No. PEN 3-PR-J-453 (01-02)Sa-Patna 3077 dated 4th April, 2002 returned the service book of petitioners husband late Harendra Nath Das with remarks that his salary was wrongly fixed on 1st January, 1986 and 1st January, 1996 in the revised scale of pay. On the basis of the said letter, calculation was made and the matter has been forwarded to the A.G. Jharkhand vide Memo No. 686 dated 8th August, 2003 for realization of Rs. 61,478/-. Though it is alleged that the husband of petitioner was well aware that his salary was fixed under a wrong pay scale and he kept mum over the matter to derive benefit but such statement made at paragraph 4 to the counter affidavit has not been stated to be statement true to the knowledge or based on information derive from the records. In the affidavit portion, the 5th respondent kept mum with respect to paragraph 4 to the counter affidavit and, therefore, this Court cannot accept such plea with respect to which nothing said in the affidavit portion. It is also not based on any record. Further, the employee, late Harendra Nath Das having died, in his absence without any record, the respondents cannot allege any mala fide against the employee, nor it can be accepted. 4. Counsel for A.G. (A & E) II, Bihar and Jharkhand referred to Chapter X, Rules 189 and 197(a)(i) of the Bihar (now Jharkhand) Pension Rules, 1950 (hereinafter referred to as the Pension Rules, 1950). It was submitted that the Department of the State Government is supposed to submit the pension paper and report 18 months prior to retirement of a Government Employee. In almost 100% cases, the State Government failed to submit pension paper and report till the date of retirement and they are submitted after about one year of retirement. He referred to an order passed by this Court on 17th January, 2003 in Contempt Case (C) No. 726 of 2001, Jamuna Prasad v. State of Jharkhand and Ors., wherein the Principal, A.G., Bihar and Jharkhand, Ranchi and A.G. ( A & E) II, Bihar informed the Court that the Officers of the State Government do not co-operate them to finalise, the pension and gratuity of Class-Ill and IV employees. In most of the cases, sanction orders are issued by the State Government alter one year to three years. Mr. S. Srivastava counsel for A.G. Jharkhand submitted that if the State Government would have submitted the pension paper and report 18 months prior to retirement of the employee as per the rules, the A.G. could have detected the mistake and could have requested the State Government to remove the discrepancies during the service period of the employee. The question of recovery from retiral benefits would not have taken place. 5. In absence of the employee late Harendra Nath Das, it is not possible for this Court to determine whether his pay was properly fixed or wrongly fixed w.e.f. 1st January, 1986 and 1st January, 1996 or not it has already been stated that the statement made at paragraph 4 to the counter affidavit cannot be accepted being not a part of the affidavit and being not based on any record. There is nothing on the record to suggest that the employee late Harendra Nath Das misrepresented the State Government to get the pay fixed in the wrong scale of pay. The respondents also failed to show as to why they alleged wrong fixation of pay w.e.f. 1st January, 1996, if the employee was holding the post of Headmaster. The case of Ashok Kumar v. State of Bihar, reported in 1999 (2) PLJR 829, as referred by the counsel for the State cannot be made applicable in the present case. That was the case where mistake was traced during the service period of the employee. The State Government also brought on record that the employees was wrongly promoted. Further, the judgment of the Supreme Court in the case of Sahib Ram v. State of Haryana and Ors., reported in 1995 Supp. (1) SCC 18, was not brought to the notice of the learned Single Judge of the Patna High Court in the case of Ashok Kumar (supra). In the case of Ambika Singh v. State of Bihar, reported in 2001 (2) JLJR 113 , this Court held that no recovery can be made from the pensionary benefit except in terms of Rule 43(b) of the Pension Rules, 1950. In the case of Ambika Singh v. State of Bihar, reported in 2001 (2) JLJR 113 , this Court held that no recovery can be made from the pensionary benefit except in terms of Rule 43(b) of the Pension Rules, 1950. In the case of Paltu Charan Ram v. State of Jharkhand, reported in 2002 (3) JCR 68 (Jhr), the Court while directed the State Authorities not to recover any amount there being no misrepresentation or fraud committed by the employee, directed the respondents to finalise pension on the basis of last pay drawn. In the case of Sahib Ram, (supra), the Supreme Court noticed that the appellant did not possess required qualification and was not entitled for promotion. He was given higher scale of pay though he was not entitled. But taking into consideration that there was no misrepresentation made by the appellant of the said case and the benefit of higher scale was granted to him by wrong construction made by the Principal for which the appellant could not be held to be at fault, directed the respondents not to recover any amount from the said appellant. 6. In the facts and circumstances, there being no misrepresentation on the part of late Harendra Nath Das, nor any evidence to suggest that the committed any fraud to get the pay fixed in the wrong scale of pay and, in fact, the matter having not been determined whether the pay was wrongly fixed or not after notice to the delinquent, the respondents cannot recover any amount from the retiral benefits of late Harendra Nath Das, nor can fix the pension, gratuity, leave encashment etc. on notional fixation of pay. They are bound to fix the pension, gratuity, leave encashment etc. on the basis of last pay drawn by the deceased employee. Further, if it has come to the notice of the authorities that the gratuity, leave encashment, pension etc. to which the employee was entitled have been withdrawn by somebody else by playing fraud and FIR has been lodged against another person, in such ease, the State Government cannot ask the employee or heirs of the deceased employee to await the deeision of the criminal case. The respondents are supposed to pay the admitted retiral benefits to the employee/heirs of the deceased employee and may recover the amount from the erring person. 7. The respondents are supposed to pay the admitted retiral benefits to the employee/heirs of the deceased employee and may recover the amount from the erring person. 7. In the light of the aforesaid observation, this Court has no option but to hold decision as contained in letter dated 4th April, 2002 illegal and set aside the said letter (Annexure 1). The respondents are directed to pay the petitioner the death-cum-retiral benefits including family pension to which she is entitled taking into account the last-pay drawn by her husband late Harendra Nath Das, within a period of three months from the date of receipt/production of a copy of this order. On failure, the respondents will be liable to pay interest @ 5% per annum on such admitted dues. 8. The writ petition is allowed, with the aforesaid observations/directions.