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2003 DIGILAW 180 (GAU)

Aroti Das v. State of Assam and Ors.

2003-04-28

RANJAN GOGOI

body2003
RANJAN GOGOI, J. — The writ petitioner, who is the widow of one Late Gunindra Nath Das, has filed the instant writ application seeking intervention of this Court in the matter of payment of the pensionary dues and other retirement benefits of her deceased husband. 2. The facts on which the writ petition has been structured may be briefly stated as the husband of the petitioner was appointed as a temporary Mechanical Overseer in the Public Works Department of the Government of Assam in the year After rendering nearly two decades to service, the husband of the petitioner passed away while in service on 1.12.78. At that point of time he was working as a Sub-Engineer (Mech) in the Baithalangso Division of the State P.W.D. It may be noticed at this stage that the deceased husband of the writ petitioner took over charge as Sub-Engineer of the writ petitioner should be released, in the Baithalangso Division sometime in the month of May, 1977 on transfer. After the death of the petitioner's husband, the writ petitioner submitted a requisite application seeking payment of retirement benefit of her deceased husband before the concerned and such applications were followed by numerous reminders and representations. In the year 1986, an order of provisional pension was passed in favour of the writ petitioner but the same was not followed by due payments. While the petitioner was pursuing her claim as aforesaid, several correspondences were exchanged by and between the authorities of the State, which correspondences would go to show that there was a complaint against the husband of the writ petitioner that at the time of handing over charge at Tezpur, on transfer to Baithalangso, Division, there was a shortage of store materials to the extent of Rs. 1,53,482.00. The authority did not draw up any proceeding against the writ petitioner during his life time and even after his death, assuming such a proceeding could not have been drawn up, no proceeding was drawn up against his legal heirs also. 1,53,482.00. The authority did not draw up any proceeding against the writ petitioner during his life time and even after his death, assuming such a proceeding could not have been drawn up, no proceeding was drawn up against his legal heirs also. However, some enquiries were conducted in respect of the shortage of store accoterials by the authorities of the P.W.D. from time to time and in the said enquiries some blame was attributed to the deceased husband of the writ petitioner though the opinion taken by the authorities was that in the absence of any formal proceeding being drawn up in the matter, the amount of pension and other retirement benefits of the deceased husband of the writ petitioner should be released. 3. As inspite of several orders passed by the authority no payments were forthcoming the instant writ proceedings had been instituted wherein an interim directions were not complied with, Contempt Case No. 99/2000 was filed before this Court and during the pendency of the contempt proceeding, a pension payment order had been issued in favour of the writ petitioner declaring the amount of monthly pension she would be entitled to for the different periods as mentioned in the pension payment order. Curiously, the aforesaid pension payment order is undated and in the said order there is a direction that an amount of Rs. 1,09,982.23 should be deducted from the total entitlement of the writ petitioner, on account of the shortage of the store materials which had allegedly occurred during the life time of the husband of the writ petitioner. The aforesaid undated pension payment order and the contemplated action of deduction have been brought on record by the petitioner by filing an additional affidavit so as to enable the writ petitioner to broaden the challenge initially made in this writ petition. 4. No return has been filed by the State respondents. However, Mr K.C. Mahanta, learned Govt. Advocate, Assam had appeared in the case and sought to justify the delayed grant of retirement benefits in favour of the writ petitioner on account of pendency of the question of recovery as noticed hereinabove. Learned Government Advocate has also sought to justify the recovery of Rs. However, Mr K.C. Mahanta, learned Govt. Advocate, Assam had appeared in the case and sought to justify the delayed grant of retirement benefits in favour of the writ petitioner on account of pendency of the question of recovery as noticed hereinabove. Learned Government Advocate has also sought to justify the recovery of Rs. 1,09,982.23 as proposed in the pension payment order by contending that the said amount represents the loss incurred by the State on account of the wrongful actions of the deceased husband of the writ petitioner. 5. Mr B.M. Sarma, learned counsel appearing for the writ petitioner in the course of his very elaborate arguments has taken me through the provisions of the Pension Rules particularly Rule 21 to contend that no recovery as proposed could be made without initiation of a formal departmental proceeding. The other pre-condition for recovery, i.e., pendency of a judicial proceeding, is argued, to be non-existent in the present case. Learned counsel for the petitioner by referring to several decisions of the Apex Court particularly the case reported in AIR 1985 SC 356 and AIR 1999 SC 1212 has contended that not only are the actions of the authority in seeking to recover Rs. 1,09,982.23 liable to be interfered with but the entire pensionary benefit ought to be directed to carry interest on account of the wrongful action of the State in withholding the same. 6. The rival submissions advanced on behalf of the respective parties have been duly considered. There is no dispute that the petitioner's husband died in the year 1978 and the pension and the other retirement benefits due to the writ petitioner, who is the legally wedded wife of the deceased officer have been withheld from the writ petitioner until the date of the issue of the pension payment order during the pendency of the present proceeding. Even after the very belated sanction order, the respondents have proposed recovery of an amount of Rs. 1,09,982.23 for the total due of the petitioner. 7. Pension has been understood by numerous judicial pronouncements to be not a matter of bounty or charity. It is a legal entitlement to be enjoyed by the pensioner and after the death of the pensioner by his legal heirs subject to the fulfillment of the conditions prescribed under the Pension Rules. 1,09,982.23 for the total due of the petitioner. 7. Pension has been understood by numerous judicial pronouncements to be not a matter of bounty or charity. It is a legal entitlement to be enjoyed by the pensioner and after the death of the pensioner by his legal heirs subject to the fulfillment of the conditions prescribed under the Pension Rules. Withholding of pension and/or recovery of any part of the pension or other retirement benefits is a punitive action which would require the authority to strictly comply with the provisions of Rule 21 of the Pension Rules. Admittedly, in the instant case no proceeding was drawn up against the writ petitioner during his life time though the alleged occurrence of shortage of store materials took place in the year 1977 and the husband of the petitioner passed away in the year 1978. No judicial proceeding in respect of the aforesaid matter had been pending at any point of time. For the purposes of the present case, it would hardly be necessary to consider the question as to whether after the death of the government servant a proceeding to withhold the pension or recover any part thereof would be maintainable against his legal heirs, as even if it is assumed that the State has the power to do so, no such proceeding was drawn up. In such a situation, the recovery of the amount of Rs. 1,09,982.23 as proposed in the pension payment order appears to be absolutely unauthorised and contrary to the provisions of the pension rules. The proposed action is, therefore, interfered with and the respondents authority is directed to clear the entire dues of the petitioner as mentioned in the pension payment order within a period of two months from the date of receipt of the certified copy of this order. 8. This would take us to the question of interest for delayed payment of pension and other benefits, that the writ petitioner has been held to be entitled to. An order for payment of interest would have to be made on consideration of the facts and circumstances of each case. The fact that in several enquiries conducted by the authorities of the P.W.D. with regard to the alleged loss of store materials, the husband of the petitioner was found to be partially responsible, cannot be ignored. An order for payment of interest would have to be made on consideration of the facts and circumstances of each case. The fact that in several enquiries conducted by the authorities of the P.W.D. with regard to the alleged loss of store materials, the husband of the petitioner was found to be partially responsible, cannot be ignored. Several officers were appointed to look into the alleged loss/shortage of store materials, who after holding the husband of the writ petitioner responsible, recommended payment of pension without withholding and/ or recovering any amount on the ground that no formal proceeding has been drawn up against the deceased husband of the writ petitioner. An element of doubt, therefore, has crept up in the mind of the Court as to whether the husband of the writ petitioner can be understood to fully exonerated of the charges that have been levelled against him. In such a situation, I am inclined to take the view that the ends of justice do not require any order from this Court saddling the respondent authority with the responsibility and obligation to pay interest to the writ petitioner. The prayer for interest thereon stands refused. 9. For the foregoing discussions and reasons, the writ petition shall stand allowed to the extent indicated above.