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2014 DIGILAW 234 (JHR)

Chandra Bati Devi v. State of Jharkhand

2014-02-12

SHREE CHANDRASHEKHAR

body2014
ORDER I. A. No. 8313 of 2013: This application has been filed for fixing an early date of hearing. Since the matter is on Board, this application has become infructuous. W. P. (S) No. 837 of 2010: Aggrieved by the order dated 07.10.2009 passed by respondent no. 3, the petitioner has approached this Court. 2. Heard learned counsel for the parties and perused the documents on record. 3. The husband of the petitioner while in service was served a charge-memo on 20.06.1992. The husband of the petitioner retired as Forest Range Officer on 30.04.1993. An F.I.R. was lodged on 14.08.1992 being Deoghar P. S. Case No. 343 of 1992 corresponding to G. R. No. 1192 of 1992. After the trial, the husband of the petitioner was convicted by order dated 25.02.2006. After the retirement of the husband of the petitioner, the departmental proceeding was concluded and a final order dated 20.06.2002 was passed whereby recovery of an amount of Rs. 4,78,790.64/- was ordered. Challenging the recovery part of the order, the petitioner approached this Court in W.P.(S) No. 3011 of 2008 which was disposed of by order dated 12.02.2009 directing the respondent to pass a fresh order in terms of the procedure prescribed under the Jharkhand Pension Rules. Pursuant to order passed by this Court, the impugned order dated 07.10.2009 has been passed. 4. A counter affidavit has been filed justifying the order of recovery of Rs. 4,78,790.64/-. The respondents have taken a stand that not only in the departmental proceeding, in criminal case also the husband of the petitioner was found guilty and therefore, the charge against the husband of the petitioner stood proved. After the death of the husband of the petitioner though family pension was ordered to be paid to the petitioner, but since recovery of Rs. 4,78,790.64/- was to be made, the family pension to the petitioner was not released. The learned counsel appearing for the petitioner has submitted that once the pension to the husband of the petitioner was sanctioned vide order dated 16.06.2004, the family pension to the petitioner could not have been stopped by the respondent-authority. The learned counsel appearing for the petitioner has submitted that once pension payment order has been issued by the government, only the name can be substituted and therefore, the name of the petitioner was to be substituted, and grant of family pension was to be made. The learned counsel appearing for the petitioner has submitted that once pension payment order has been issued by the government, only the name can be substituted and therefore, the name of the petitioner was to be substituted, and grant of family pension was to be made. The learned counsel appearing for the petitioner has further submitted that by order dated 16.06.2004, the pension order was issued and though, within three years of such date, the respondent-State was authorised to modify/alter the pension of the husband of the petitioner in terms of Rule 139 of the Jharkhand Pension Rules, however, no such order was passed in the present case, and therefore, no recovery from the family pension of the petitioner could have been effected. It is further submitted that even assuming but not admitting that the recovery from the family pension of the petitioner can be effected, it can be recovered only to the tune of the amount as ordered in the final order dated 20.06.2002 and the entire family pension to the petitioner cannot altogether be stopped. 5. Mr. Rishikesh Giri, learned counsel appearing for the respondent-State of Jharkhand has submitted that since the husband of the petitioner has been found guilty in the criminal case and the charge framed against him on 20.06.1992 has also been found proved and a final order dated 20.06.2002 has been passed whereby an order of recovery of Rs. 4,78,790.64/- has been passed, the family pension to the petitioner has been stopped. The learned counsel has further submitted that pursuant to the final order dated 20.06.2002, an amount of Rs. 32,256/- on account of unutilised leave encashment payable to the husband of the petitioner has already been recovered. 6. Mr. S. Srivastava, learned counsel appearing for the respondent no. 5 has submitted that the petitioner has misconstrued the letter dated 15.01.2008, inasmuch as, the office of the Accountant General has not directed the respondent-authority to recover the amount of Rs. 4,46,534.64/-. He has further submitted that rather, it has only been indicated in the said letter that payment of family pension to the petitioner can be made. 7. Having heard the contentions advanced by the learned counsel appearing for the parties, I am of the view that the impugned order dated 07.10.2009 is not sustainable in law. 4,46,534.64/-. He has further submitted that rather, it has only been indicated in the said letter that payment of family pension to the petitioner can be made. 7. Having heard the contentions advanced by the learned counsel appearing for the parties, I am of the view that the impugned order dated 07.10.2009 is not sustainable in law. Though, right to pension of an ex-employee has been a right akin to Article 31 of the Constitution of India (Right to property). [“Deokinandan Prasad Vs. State of Bihar and Others”, reported in (1971) 2 SCC 330 and in “D.S. Nakara and Others Vs. Union of India”, reported in (1983) 1 SCC 305 ]. 8. In “Jodh Singh v. Union of India & Anr.” reported in (1980) 4 SCC 306 , the Hon'ble Supreme Court on an elaborate discussion held that family pension is admissible on account of the status of a widow and not on account of the fact that there was some estate of the deceased which devolved on his death to the widow. The Hon'ble Supreme Court held as under:– 10.“Where a certain benefit is admissible on account of status and a status that is acquired on the happening of certain event, namely, on becoming a widow on the death of the husband, such pension by no stretch of imagination could ever form part of the estate of the deceased. If it did not form part of the estate of the deceased it could never be the subject matter of testamentary disposition.” 9. It has been held by the Hon'ble Supreme Court in “Smt. Violet Issaac and Others Vs. Union of India and Others” reported in (1991) 1 SCC 725 , that an employee has no right to nominate a person for family pension or to execute a Will in favour of a person making him entitled for the benefit of family pension. Since family pension would be payable only on the death of the employee, it would not form part of the estate of the employee. The Hon'ble Supreme Court has discussed the issue as under: “4. ………..The Family Pension Scheme confers monetary benefit on the wife and children of the deceased Railway employee, but the employee has no title to it. The employee has no control over the family pension as he is not required to make any contribution to it. The Hon'ble Supreme Court has discussed the issue as under: “4. ………..The Family Pension Scheme confers monetary benefit on the wife and children of the deceased Railway employee, but the employee has no title to it. The employee has no control over the family pension as he is not required to make any contribution to it. The family pension scheme is in the nature of a welfare scheme framed by the Railway administration to provide relief to the widow and minor children of the deceased employee………” 10. In view of the aforesaid legal position, I am of the view that recovery, if any in terms of final order dated 20.06.2002 cannot be effected from the family pension of the petitioner. In the result, this writ petition is allowed and the respondent no. 2 is directed to5immediately take necessary steps for release of family pension to the petitioner.