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2012 DIGILAW 1586 (JHR)

Shilo Devi v. State of Jharkhand

2012-11-02

JAYA ROY, PRAKASH TATIA

body2012
ORDER In view of the reasons stated in the application for condonation of the delay of 13 days, the delay in filing of the L.P.A. is condoned, and accordingly, the I.A. No. 2344 of 2012 (Limitation Petition) stands disposed of. 2. Heard the counsel for the parties. 3. Learned counsel Mr. Prem Jujari Roy sought to withdraw the power from this case, which is permitted. 4. Learned counsel Mr. Sumeet Gadodia appearing for the appellant submitted that the appellant was rival claimant before the Department of the State Government for all of the benefits which became due, due to the death of the appellant's husband, whereupon the Department has passed the order that the Succession Certificate may be obtained. Even after taking note of this fact, as well as inspite of taking note of the fact that the appellant has already filed the Succession Case before the Court of the Principal District Judge, Latehar being Succession Case No.6 of 2011 and inspite of the fact that the respondent-writ petitioner did not implead the appellant in the writ petition, allowed the writ petition being W.P.(S) No.7232 of 2011. It is submitted that the appellant is aggrieved party against the judgment of the learned Single Judge dated 18.6.2012 as in view of the observations made in the impugned judgment, the Department has no option but to pay all the amount to the writ petitioner respondent in spite of the fact that the appellant's contention has been partly accepted by the State Government and in view of the directions of the Department, the appellant has also filed the Succession Case which is pending in the Court of law, therefore, the appellant be permitted to prefer the appeal against the order dated 18.6.2012. 5. Learned counsel for the writ petitioner opposed the leave application and submitted that the learned Single Judge has merely directed the Department to consider the case of the petitioner and pass appropriate order and if the decision is taken in favour of the petitioner then to give such benefits to the writ petitioner. Therefore, against this order, the appellant cannot be said to be aggrieved. 6. Therefore, against this order, the appellant cannot be said to be aggrieved. 6. However, we are of the considered opinion that the learned Single Judge has made several observations, which may indicate to pass an order in favour of the writ petitioner as the learned Single Judge after taking note of the fact as stated by the writ petitioner alone, observed that the Accountant General, Ranchi, shall pass the order keeping in mind that there are already documents in favour of the present petitioner at Annexure 1 and 2, therefore, it cannot be said that the directions are of no consequences determining any of the issue. Therefore, the leave application filed by the appellant is allowed. 7. At the request of the learned counsel for the parties, the L.P.A. is heard finally. 8. Learned counsel for the appellant has submitted that the judgment dated 18.6.2012 is to be set aside solely on the ground of violation of the principle of natural justice as even after taking note of the fact that the appellant is rival claimant and on her objection, the Department of the Respondent-State did not pay the retirement benefit to the writ petitioner without hearing the appellant passed the impugned order. The appellant has already filed the Succession Case and that was the direction of the Department also. In view of the above reasons, the appellant is adversely effected by the judgement dated 18.6.2012. It is also submitted that without affording the opportunities of hearing to the appellant, the learned Single Judge has made all observations in favour of the writ petitioner. It is also submitted that the writ petitioner herself was knowing well that the appellant has filed the objection to challenge the marital status of the writ petitioner yet the appellant was not impleaded as party in the writ so as to get the favourable order from this Court which she could get. 9. Learned counsel for the appellant also submitted that even on merits the appellant has a better claim. 10. Learned counsel for the writ petitioner submitted that the learned Single Judge in Paragraph No.5 has taken note of the facts which cannot be disputed and also has taken note of the fact that the appellant submitted a letter to the Respondent, copy of which has been filed in the counter affidavit by the State, claiming the Death Cum Retirement Benefits. However, the learned Single Judge has observed that the said letter is not supported by any of the documents. Learned Single Judge has also took note of the fact that the appellant has filed the Succession Case and after taking note of this fact, relying upon the judgment of this Court delivered in case of Shri Narayan Pandey Versus State of Jharkhand and Others, reported in 2009(4) J.C.R. 522 (Jhr.) and in the Supreme Court judgment delivered in case of Rameshwari Devi Versus State of Bihar and Others, reported in 2000(2) SCC 431 , held that “when there a nomination, then in that situation, the nominee is entitled to receive the benefits of the retirement benefits” and the Supreme Court held that “once there is nomination, then it is unjust to ask the party to go for civil litigation which is a long drawn affair”. Therefore, in this fact and circumstances, learned Single Judge has rightly held that in view of the nomination and in view of the relevant documents placed by the writ petitioner before the learned Single Judge, the State Government should reconsider the matter in the light of the above decision and pass the fresh order. Learned counsel for the writ petitioner also submitted that even now the State Government may be directed to hold the enquiry in view of the ratio of the Supreme Court decision given in the case of Rameshwari Devi (Supra) and the appellant may be given permission to appear and put her case so as to avoid unnecessary delay in the disbursement of the retirement benefit. 11. We have considered the submissions of the learned counsel for the parties and perused the impugned judgment dated 18.6.2012. So far as the violation of the principles of natural justice is concerned, the learned Single Judge has taken note of the fact that the appellant has already submitted her claim for allowing to be the retirement benefits and the appellant has submitted the case for obtaining Succession Certificate. What the appellant could have submitted before the learned Single Judge cannot be presumed, therefore, the observation of learned Single Judge that the letter or claim made by Smt. Shilo Devi is not supported by any of the documents has been recorded without hearing of the appellant. What the appellant could have submitted before the learned Single Judge cannot be presumed, therefore, the observation of learned Single Judge that the letter or claim made by Smt. Shilo Devi is not supported by any of the documents has been recorded without hearing of the appellant. It is settled law that even on the basis of the admission or the document admitting some fact, if some action is required to be taken against that person admitting the fact, then also he is required to be given opportunity to explain that admission without which no adverse order can be passed. Here, in this case, the Department admittedly was not held any enquiry to find out who is the real claimant. 12. In the case of Rameshwari Devi (Supra), the Hon'ble Supreme Court held that “when there are two claimants for a pensionary benefits of a deceased and there is no nomination wherefrom required, the State Government has to hold the enquiry as to the rightful claimant”. In present case where the Department has already taken a decision that the matter is required to be decided by the civil court as the State Government/ Department may have failed to decide, therefore in the facts and circumstances of the case and when the appellant has already filed the Succession Case, then in that situation, the matter could have been left for the decision of the Court where the matter of the succession is pending. Interest of parties can be safeguarded, dispute by passing an appropriate order and directions to the said court for deciding the matter expeditiously in a time bound programme so as to avoid all conflicts which may occur after the making of the payment of the retirement benefits to the writ petitioner which may become irrecoverable in the facts and circumstance in case the appellant wins the case of succession. Therefore, in the fact and situation, the judgment relied upon by the learned Single Judge cannot be applied. Otherwise, also it will be in the interest of both the parties that the dispute now be settled once for all in the succession case. 13. Therefore, this L.P.A. is allowed and the impugned judgment is set aside. Therefore, in the fact and situation, the judgment relied upon by the learned Single Judge cannot be applied. Otherwise, also it will be in the interest of both the parties that the dispute now be settled once for all in the succession case. 13. Therefore, this L.P.A. is allowed and the impugned judgment is set aside. The learned counsel for the appellant will serve the copy of the succession case upon the learned counsel for the writ petition and the receipt of that may be filed in the Registry which may be placed in the present L.P.A. The copy be supplied within one week from today. 14. The learned counsel for the writ petitioner has submitted that the court of the Principal District Judge, Latehar may be directed to decide the succession case within a period of three months, for which learned counsel for the appellant has no objection. If both the parties give full cooperation, the learned Principal District Judge, Latehar may decide the succession case within three months from the 3rd December, 2012, and if succession case is not decided within three months, then the said case may be decided within further period of two months thereafter, but for that purpose, the court shall record the reason for not deciding the matter within three months. 15. A copy of this order be sent to the court of the Principal District Judge, Latehar in Succession Case No.6 of 2011. 16. Since, presently the date fixed in the trial court is not known to the counsel for the appellant, therefore, we are fixing the date before the court of Principal District Judge, Latehar on rd December, 2012. On that date, this matter may be taken up and on that date, the writ petitioner will also put in appearance as agreed by learned counsel for writ petitioner.