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2012 DIGILAW 584 (JHR)

Vimla Devi v. State of Jharkhand

2012-04-17

APARESH KUMAR SINGH

body2012
ORDER Heard learned counsel for the parties. 2. WP(S) No.5979 of 2003 was earlier filed by the petitioner Vimla Devi for issuance of a direction upon the respondents to rectify the anomaly in pay fixation of her late husband and for admissible arrears of such pay after death of her husband in harness on 23.11.1995. 3. WP(S) No.2160 of 2005 has been preferred by the same petitioner seeking a direction upon the respondents to pay the admitted death cum retiral dues including provident fund and gratuity, leave encasement, GIC and other admissible dues to the petitioner on account of death cum retiral dues of her late husband, who died in harness on 23.11.1995 while working as Assistant teacher (Incharge Head Master) in Middle School Albera Amrapara, Pakur. 4. The brief facts of the case, according to the petitioner, are that the husband of the petitioner late Nirmal Kumar Poddar had joined service on 10.4.1973 as I.A. trained teacher. The petitioner's husband was subsequently granted B.A. Trained scale after passing graduation with effect from 1.4.1984 vide letter dated 30th July,1983, however, the B.A. trained scale of the petitioner's husband was stopped after 1984, against which the petitioner's husband made several representations but of no avail. It is asserted in WPS No.5979/2003 that said B.A. trained scale was stopped without giving any opportunity of hearing to the petitioner's husband. 5. Petitioner's husband died in harness on 23.11.1995 while working as Assistant teacher (Incharge Headmaster) of Middle School Albera, Amrapara in the District of Pakur. The petitioner has submitted that on failure of the respondents to pay the death cum retiral dues of her husband, she was compelled to move this Court in WPS No.2160/2005 and during pendency of the writ petition, a counter affidavit was filed on behalf of the respondent no.4 indicating the amount paid under different heads of retirement benefits, which is as under: “Sl. Particulars Amount Date of payment No. 01. G.I.C. Rs.96,000.00 vide D.D.No.502717 dt.12.4.96 02. Leave encasement 27,106.00 “ “ No.196208 “ 27.8.96 03. G.P.F. 98,680.00 “ bill “ 33/05-06 “20.10.05 04. Particulars Amount Date of payment No. 01. G.I.C. Rs.96,000.00 vide D.D.No.502717 dt.12.4.96 02. Leave encasement 27,106.00 “ “ No.196208 “ 27.8.96 03. G.P.F. 98,680.00 “ bill “ 33/05-06 “20.10.05 04. Gratuity 25,650.00 “ Released vide letter no.1283 dated 25.10.2005” In Para 7 of the said counter affidavit, it is also stated that the final pension of the petitioner has been fixed by the Accountant General, Jharkhand vide PPO No.1098 dated 28.6.2005 and the gratuity of her husband has been fixed by A.G. Vide GPO No.251/05-06 dated 28.6.2005. However, it has been stated in the said counter affidavit that the petitioner's husband was wrongly paid salary in B.A. trained scale from 1.4.1982 despite the same being cancelled by the District Education Establishment Committee, Sahebganj in its meeting held on 3.6.1987 with a direction to recover the excess amount. The petitioner's husband, in connivance with the local staff, continued to draw the salary of B.A. trained scale, which was detected after his death. Therefore, a sum of Rs.94,497/-was recoverable from the late husband of the petitioner. Annexure B to the said counter affidavit being the gratuity payment being GPO No.251/05-06 shows that amount of death gratuity payable was Rs.25,650/-on the basis of last pay of Rs.1,900/-. As per para 12 of the said affidavit, it is stated that the petitioner was wrongly drawing salary in B.A. trained scale at Rs.1640-2900/- 6. The petitioner, by way of rejoinder to the said counter affidavit, stated that her pension and gratuity has wrongly been fixed not on the basis of last pay drawn that was Rs.2360/-. She has also asserted that the order dated 3.6.1987 was never communicated to her husband. Subsequently, by way of I.A.No.2559/2006 she made a prayer for quashing the order as contained in letter No.1283 dated 25.10.2005 issued by the DSE, Pakur , respondent no.4, whereby and whereunder a direction was made to recover a sum of Rs.94,497/-from pension/gratuity of the petitioner after more than ten years of death of her husband and without serving any notice or giving an opportunity of hearing to her. Further a prayer is also made to fix pension and gratuity on the basis of last pay drawn by the husband of the petitioner. 7. Further a prayer is also made to fix pension and gratuity on the basis of last pay drawn by the husband of the petitioner. 7. On perusal of Annexure 3 to the I.A.No.2559/2006, it appears that the said order has been issued on 25.10.2005 directing the aforesaid deduction from the death cum retirement benefits of the husband of the petitioner after 10 years of his death and that too without any opportunity to show cause to the petitioner, who is a widow. 8. In reply to the said I.A., a supplementary counter affidavit has been filed by the respondent no.4 stating that the illegal promotion granted to the petitioner's husband was withdrawn as in cases of many other teachers, who were illegally granted such promotion by the then DSE, Sahebganj during the period 1981-84. However, necessary deduction after cancellation of promotion was not made by the petitioner's husband from his salary in connivance with the then headmaster of the school. This fact came to the notice after the death of the petitioner's husband as stated in para 6. The respondents have further sated that subsequently, by letter dated 17.9.1996 provisional pension of the husband of the petitioner was fixed while withholding his gratuity on the ground of non-realization of the excess amount. Further it has been asserted that by letter no.8329 dated 25.9.1997 the petitioner was asked to deposit Rs.64,419/-in Government treasury towards realization of excess amount from the husband of the petitioner after adjusting gratuity amount of Rs.37,800/-. The pension papers of the petitioner's husband could not be processed because the service book of late Nirmal Kumar poddar was taken away by his son Rajeev Ranjan Poddar and returned by him in 2005 only. The respondents therefore submitted that they are legally justified in adjusting the aforesaid amount of Rs.68,847/-as per letter dated 25.10.2005 issued by the respondent no.4 to the Treasury Officer, Sahebganj. 9. From a conspectus of the aforesaid fact, it appears that the order of deduction has been made after the death of the petitioner' husband without any opportunity of hearing to the petitioner. 10. Learned counsel for the petitioner has relied upon a un-reported judgment of this Court delivered in the case of Bishwanath Bhagat Vs. 9. From a conspectus of the aforesaid fact, it appears that the order of deduction has been made after the death of the petitioner' husband without any opportunity of hearing to the petitioner. 10. Learned counsel for the petitioner has relied upon a un-reported judgment of this Court delivered in the case of Bishwanath Bhagat Vs. State of Jharkhand & ors., [WP(S) No.5062 of 2002 dated 27.2.2003, Annexure-2 to the Writ Petition WPS No.2160/2005], wherein it was also alleged that the pay of the petitioner of that case, who was also a teacher, was wrongly fixed at Rs.2360/-in stead of Rs.2180/-as on Ist April,1986. On the said mistake being noticed by the office, the Accountant General and the DSE Godda were directed to re-fix the pay after six years of the retirement of the petitioner. This Court in the aforesaid circumstances held that there was nothing on record to suggest that the petitioner was allowed additional increment and pay fixation on the application of the petitioner and as such, the DSE Godda and the Accountant General, Bihar and Jharkhand were directed to fix the pension and gratuity of the petitioner on the basis of last pay drawn by him and pay the admitted retiral benefits within three months without any recovery on the ground of excess payment. The learned counsel for the petitioner has submitted that his case is squarely covered by the aforesaid decision and facts are identical to the present case and the writ petition deserves to be allowed in the similar terms. It is stated that the petitioner's husband was drawing the last drawn salary at Rs.2360/-at the time of his death, which should be made the basis for payment of pension and gratuity and the order directing the recovery of excess amount should be quashed. 11. The petitioner has also relied upon a judgment delivered by a Full Bench of this Court in the case of Munari Devi Vs. Bihar State Electricity Board, Patna & ors, reported in 2008 (1) JLJR 484 , wherein the Full Bench, while relying on the judgment of the Hon'ble Supreme Court, reported in 2007 (4) SCC 502 , held that re-calculation of the last pay drawn by the husband of the petitioner instead of the basic pay that was drawn by him at the time of his retirement was not justified. The Full Bench of this Court posed the question; whether the employer could recover the excess payment alleged to have been made to the employee from his legal representative after the death of the employee from the retiral benefits without following the prescribed procedure and without any material to show that excess payment was obtained by the employee due to misrepresentation made by him? The aforesaid question was answered by the Full Bench by stating that the widow of the deceased employee is entitled to get the death cum retiral benefits on the basis of the said basic pay at Rs.3050/-, which was last drawn by the husband of the petitioner and no recovery can be made from the legal representative of the deceased employee. 12. In the instant case, the fixation of death cum retiral benefits of the petitioner's husband has been made after the death of the employee at a reduced scale of Rs.1900/-in stead of Rs.2360/-, which was the last pay drawn by him. Further, by the impugned order dated 25.10.2005 a sum of Rs.94,497/-has been sought to be recovered from the legal dues of the petitioner's husband after almost ten years of his death. The aforesaid fact clearly shows that the instant case is also fully covered by the aforesaid judgment of the Full Bench of this Court as also the unreported judgment relied by the petitioner as contained in Annexure 2 to WPS No.2160 of 2005. 13. In the aforesaid facts and circumstances, therefore, the impugned order dated 25.10.2005 as contained in Annexure 3 to the I.A.No.2559/2006 cannot be sustained in law and it is accordingly quashed. The respondents are further directed to sanction and pay the death cum retiral dues of the petitioner's husband on the basis of last pay drawn by him at the time of his death on 23.11.1995. Consequently any amount realized pursuant to the order as contained in Annexure 3 to the I.A. No.2559/2006 dated 25th October,2005 is to be paid to the petitioner as well. The aforesaid re-fixation of the pension and gratuity and other death cum retiral dues of the petitioner's husband should be done within a period of four weeks from the date of receipt/production of a copy of this order. 14. The writ petitions are accordingly allowed to the extent, as indicated herein-above. Consequently, I.A.No.2559 of 2006 stands disposed of.