Research › Search › Judgment

Jharkhand High Court · body

2014 DIGILAW 1283 (JHR)

Purnima Devi v. State of Jharkhand

2014-12-18

SUJIT NARAYAN PRASAD

body2014
Judgment The petitioner has approached this Court for two fold prayers:- (1) For issuance of appropriate writ/direction directing the respondents to fix the final pension of her deceased husband in terms of order dated 19.11.2008 passed in W.P.(S) No. 950/2003. (1A) For quashing the order dated 11.8.2010 issued by the Deputy Commissioner-cum-District Magistrate, Ranchi by which the direction has been given to refix salary of deceased husband of the petitioner on the basis of pay scale of Rs.5000-150-8000/-. (1B) For quashing order dated 10.5.2011 issued by the Deputy Secretary to the Government, Food, Civil Supplies and Consumer Affairs Department, Jharkhand by which the amount of Rs. 1,41,270/- has been said to be recovered. 2. Heard the parties and perused the documents on record. 3. The brief fact of the case, as has been argued on behalf of learned counsel for the petitioner, is that husband of the petitioner was appointed on 19.8.1966 as Assistant Godown Manager which was re-designated as Supply Inspector in the year 1971. It has been submitted that husband of the petitioner was given the benefit of first time bound promotion in the year 1981 and was placed in the pay scale of Rs.1800-3300/-. The deceased husband of the petitioner was also given the benefit of 2nd time bound promotion in the pay scale of Rs.2000-3800/- in the year 1991. It has been submitted that the pay scale of deceased husband of the petitioner has been revised by virtue of recommendation of 5th Pay Revision Committee in the pay scale of Rs.6500-10500/- and accordingly he was getting the salary of Rs.10,500/- in terms of resolution no.660(f/2) dated 8.2.1999. Husband of the petitioner retired from service on 31.12.2000 and thereafter he died on 15.6.2003. 4. It has been submitted that after normal superannuation, pension of deceased husband of the petitioner was fixed at the pay scale of Rs.6500-10500/-. Husband of the petitioner retired from service on 31.12.2000 and thereafter he died on 15.6.2003. 4. It has been submitted that after normal superannuation, pension of deceased husband of the petitioner was fixed at the pay scale of Rs.6500-10500/-. After death of husband of the petitioner on 15.6.2003 the family pension was also fixed on the basis of the pay scale of Rs.6500-10500/-, but thereafter from the month of June, 2002 vide letter dated 23.11.2002 the pension of the husband of the petitioner was revised to be fixed on the basis of pay scale of Rs.5000-8000/- to be paid w.e.f. the month of June, 2002 and accordingly, the deceased husband of the petitioner was directed to refund an amount of Rs.1,83,015/- on the ground that excess payment was made to her deceased husband. Thereafter, the deceased husband of the petitioner challenged the order dated 23.11.2002 vide W.P.(S) No.950/2003 in which learned Single Judge of this Court has been pleased to pass an order giving liberty to the petitioner to approach the Deputy Commissioner, Ranchi who has been directed to pass speaking order after giving an opportunity of hearing. 5. During pendency of the writ petition, husband of the petitioner died on 15.6.2003 and thereafter in W.P.(S) No.950/2003 the present petitioner was substituted and accordingly the writ petition being W.P.(S) No.950/2003 was disposed of on 19.11.2008. 6. Accordingly, the petitioner filed a series of representations on 7.3.2009, 16.3.2010 and 11.8.2010 for fixing of final pension of her deceased husband, but no decision was taken. 7. Learned counsel for the petitioner further submitted that subsequently, through the counter affidavit filed on behalf of the respondents in the instant writ petition, the petitioner came to know about the order dated 11.8.2010 and also the order dated 10.5.2011 which has been passed behind the back. For the first time both the orders have come in the counter affidavit filed on behalf of the respondents in the instant writ petition. As such, it has been contended on behalf of the petitioner that the order impugned has been passed without affording any opportunity of being heard to her while there is specific direction in W.P.(S) No.950/2003 to the Deputy Commissioner, Ranchi to pass appropriate order after giving an opportunity of hearing within a period of two months. 8. As such, it has been contended on behalf of the petitioner that the order impugned has been passed without affording any opportunity of being heard to her while there is specific direction in W.P.(S) No.950/2003 to the Deputy Commissioner, Ranchi to pass appropriate order after giving an opportunity of hearing within a period of two months. 8. On the other hand, learned counsel for the respondents has submitted that the order dated 11.8.2010 has been passed on the basis of undertaking given by the deceased husband of the petitioner in view of the condition as contained in Clause-17(i) of the notification no.660 dated 8.2.1999. On the basis of the said undertaking the authorities have come to conclusion that the pay scale of the deceased husband of the petitioner has since been wrongly fixed in the pay scale of Rs.6500-10500/- while he ought to have been given the pay scale of Rs.5000-8000/- and accordingly the necessary correction has been made by passing the order dated 11.8.2010. Hence, it has been submitted that there is no illegality in the impugned order dated 11.8.2010. 9. After perusing the documents on record and after hearing the parties, it is apparent that husband of the petitioner retired from service on 31.12.2000 and while the husband of the petitioner was in service, he was given benefit of revision in pay scale by virtue of recommendation of 5th Pay Revision Committee and he was given the pay scale of Rs.6500-10500/- . The petitioner's husband retired on 31.12.2000 and his pension was also fixed and finalised on the basis of the revised pay scale of Rs.6500-10500/- . However, by virtue of order dated 23.11.2002 the pay scale of deceased husband of the petitioner was revised by reducing it from Rs.6500-10500/- to Rs. 5000-8000/- and accordingly direction has been given to recover the excess amount of Rs. 1,83,015/-. 10. The order dated 23.11.2002 has been challenged by deceased husband of the petitioner by way of W.P.(S) No.950/2003. During pendency of the said writ petition, husband of the petitioner died on 15.6.2003. The original writ petitioner was substituted by the present petitioner and the writ was disposed of vide order dated 19.11.2008. 1,83,015/-. 10. The order dated 23.11.2002 has been challenged by deceased husband of the petitioner by way of W.P.(S) No.950/2003. During pendency of the said writ petition, husband of the petitioner died on 15.6.2003. The original writ petitioner was substituted by the present petitioner and the writ was disposed of vide order dated 19.11.2008. The operative portion of the order is quoted herein below:- “In the facts and circumstances of the case, the petitioners are given liberty to approach the Deputy Commissioner, Ranchi (respondent no.2) within a period of four weeks from the date of receipt of this order and the Deputy Commissioner, Ranchi will pass appropriate order after giving them an opportunity of hearing within a period of two months from the date of receipt of representation(s). It goes without saying that the earlier orders, which are annexed as Annexures 4 and 5 to this writ petition, will not come in the way of the respondent in passing a fresh speaking order. This writ petition is, accordingly, disposed of with the aforesaid observations.” 11. Learned Single Judge of this Court has directed the Deputy Commissioner, Ranchi to pass appropriate order after affording an opportunity of hearing to the petitioner. When no order was passed in spite of repeated representations given by the petitioner, then ultimately she filed instant writ petition praying therein to fix final pension of the deceased husband of the petitioner in view of the order dated 19.11.2008 passed in W.P.(S) No.950/2003. But during pendency of the writ petition when the State has filed counter affidavit, they have come with orders dated 11.8.2010 and 10.5.2011 refixing the pay scale of late husband of the petitioner at the pay scale of Rs.5000-8000/- and accordingly subsequent order was passed on 10.5.2011 whereby direction was passed to recover the excess payment made to the petitioner. 12. Accordingly, the present petitioner has challenged the same by way of interlocutory application being I.A. No.3313/2012 which was allowed. 13. 12. Accordingly, the present petitioner has challenged the same by way of interlocutory application being I.A. No.3313/2012 which was allowed. 13. Thus, it is apparent that during the lifetime of late husband of the petitioner, although the order was passed on 23.11.2002 which was challenged by the petitioner and this Court has directed the authority concerned to pass appropriate order after providing an opportunity of being heard, but from perusal of order dated 11.8.2010 it does not transpire that the petitioner has at all been given any opportunity of being heard, rather the authority on its own has passed the order that too when the petitioner has preferred this writ petition before this Court for fixing of pension on the basis of the revised pay scale of Rs.6500-10500/- and the State has brought the said order by way of filing counter affidavit. 14. The admitted position is that the order dated 11.8.2010 has been passed after lifetime of late husband of the petitioner and at that time the present petitioner had started to get the family pension. Further fact is that the order dated 10.5.2011 has been issued directing to recover the excess payment of Rs.1,41,270/- from the petitioner to be deposited in the Treasury by way of treasury challan. 15. Thus, the fact which is to be taken into consideration in the instant writ petition is that as to whether the order dated 11.8.2010 has been passed in consonance with the order dated 19.11.2008 passed in W.P.(S) No.950/2003 wherein a specific direction has been given to the Deputy Commissioner, Ranchi to pass order after providing an opportunity of being heard to the petitioner. From perusal of the order dated 11.8.2010 it is apparent that no opportunity of being heard was given to the petitioner and as such, the same is not sustainable in the eyes of law being violative of principle of natural justice. 16. The requirement of law is that before passing any order which is going to adversely affect the interest of party, the authority is supposed to provide an opportunity of hearing. 17. In that view of the matter, I find that order dated 11.8.2010 is not sustainable in the eyes of law and is hereby quashed. 18. 16. The requirement of law is that before passing any order which is going to adversely affect the interest of party, the authority is supposed to provide an opportunity of hearing. 17. In that view of the matter, I find that order dated 11.8.2010 is not sustainable in the eyes of law and is hereby quashed. 18. The respondent is given liberty to pass a fresh order with respect to the actual pay scale which ought to have been given to the deceased employee i.e. late husband of the petitioner while he was in service and accordingly take appropriate decision in this regard within eight weeks from the date of receipt/production of a copy of this order. It is further directed that the respondent will provide opportunity of being heard to the petitioner before taking any decision in this regard. 19. So far as the order dated 10.5.2011 is concerned, the authority has passed the order directing the widow of deceased employee to deposit a sum of Rs.1,41,270/- in the Treasury and only thereafter the family pension will be sanctioned and released. 20. But in the impugned order dated 10.5.2011 respondents have themselves accepted that excess amount of Rs.1,41,270/- cannot be recovered from the family pension of the petitioner. 21. Further, in case of Chandra Bati Devi vs. The State of Jharkhand, (2014) 4 JCR 97 (Jhr.), a Single Bench of this Court held that recovery, if any, cannot be effected from the family pension of the petitioner. 22. The Family Pension Scheme has been enacted by the Government in the year 1964 for providing relief to widow of deceased employee and it is admitted position that no recovery can be made from the family pension. The direction of the authority by order dated 10.5.2011 directing the petitioner to deposit Rs.1,41,270/- is an arbitrary exercise of authorities concerned because the order dated 10.5.2011 is a consequential order passed in consequence of the order dated 11.8.2010 and when the order dated 11.8.2010 was passed without providing an opportunity of hearing to the petitioner, the subsequent order dated 10.5.2011 cannot stand. Hence, order dated 10.5.2011 is also hereby quashed. 23. This writ petition is disposed of with the observations indicated herein above.