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2014 DIGILAW 600 (GAU)

Must. Halima Khatun v. State of Assam & Ors.

2014-06-05

A.K.GOSWAMI

body2014
1. This writ petition under article 226 of the Constitution of India, was filed by the widow of Haji Abdul Mannan, who was Assistant Teacher of Morigaon Higher Secondary and Multipurpose School, Morigaon, praying for a writ in the nature of mandamus to direct the respondent authorities (i) to release the retiral benefits, stated to have been embezzled by the respondent Nos. 3 and 4, (ii) to issue regular monthly pension and (iii) to pay death-cum-retirement gratuity (DCRG) of Rs. 2,77,629 along with interest and (iv) to hold an enquiry and book the culprits. 2. The case projected in the writ petition is that the petitioner’s husband had been working-as Arabic Teacher in the School in question since March 1971, and he died in harness on 31.10.2006. It is alleged that one Bharat Chandra Sarma arid one Basanta Kakati coercively took her signature on various registers and papers by inducing her to believe that those were essential for getting sanction of pension and other benefits and they also demanded and received Rs. 20,000 to expedite the process. After lapse of considerable time, it came to her knowledge that the Director of Pension, Assam by an order dated 4.2.2007 had sanctioned pension @ Rs. 4,700 to the petitioner for the period 1.11.2006 to 31.10.2013 and @ Rs. 2,820 w.e.f. 1.11.2013. By another order addressed to respondent No. 7, the Director of Pension had accorded sanction of Rs. 2,77,629 towards Gratuity/DCRG with a further direction to make recovery of Rs. 2,64,874 towards provisional gratuity/DCRG already paid. 3. The pleaded case of the petitioner is that the aforesaid sum of Rs. 2,64,874 was not paid to her, though drawn by the school authority. By an order dated 27.2.2007, the Accountant General (A&E) issued authority for final withdrawal of Rs. 1,28,523 against Provident Fund Account No. PED-108491 of the husband of the petitioner, which amount was also withdrawn by the Principal of the School, who is the drawing and disbursing officer (DDO) but not a single penny was paid to the petitioner. 4. A number of affidavits have been exchanged and it will be appropriate to, briefly, refer to the affidavits filed. 5. In the affidavit filed by the respondent No.3 on 12.2.2008, it has been asserted that the GPF amount of Rs. 4. A number of affidavits have been exchanged and it will be appropriate to, briefly, refer to the affidavits filed. 5. In the affidavit filed by the respondent No.3 on 12.2.2008, it has been asserted that the GPF amount of Rs. 50,000 was sanctioned and disbursed on 3.11.2006 and the amount was received by Fakaruddin, Badaruddin, who are sons of the petitioner and by Ajmuda Begum, who is daughter of the petitioner. He had also enquired into the matter and checked the records maintained by the Principal of the School. The petitioner had received the amount on 12.1.2007 by putting her signature on the Acquaintance Roll. Thereafter, on 25.7.2007, the petitioner had lodged complaint before the District Administration and he again conducted an enquiry and submitted a report of the Deputy Commissioner, Morigaon wherein he had asked the DDO to follow the financial rule and procedure with regard to Provident Fund. It is stated that out of the amount of Rs. 1,28,523 UBI, Morigaon Branch recovered Rs. 28,100 against the personal loan A/c of the husband of the petitioner and similarly, the SBI recovered an amount of Rs. 91,963 against another personal loan of the husband of the petitioner. The remaining balance of Rs. 8,460 was deposited in the petitioner's account. 6. By filing an additional affidavit on 21.11.2011, the petitioner had placed on record the complaint lodged by the petitioner before the D.C. Morigaon. 7. An affidavit-in-reply was filed by the petitioner against the affidavit-in-opposition filed by the respondent No. 3 stating that her signature was fraudulently obtained on the Acquaintance Roll. The total amount of Rs. 3,69,562 stated to have been paid to the petitioner by cash on 12.1.2007, as reflected in the enquiry report of the respondent No. 3, was violative of memorandum dated 19.11.2005 (Annexure 11 to the writ petition). A letter dated 4.9.2007 was issued by the Principal asking the petitioner to open up a bank account to disburse the pension and other payable benefits. It is asserted by the petitioner that she never requested the DDO for making payment in cash and she had opened up a bank account on 27.9.2007. 8. The respondent No. 4, i.e., the Principal (DDO), by filing his affidavit, has asserted that the writ petitioner received a sum of Rs. 2,64,874 on account of DCRG, an amount Rs. 21,986 towards GIS (Saving fund); an amount of Rs. 8. The respondent No. 4, i.e., the Principal (DDO), by filing his affidavit, has asserted that the writ petitioner received a sum of Rs. 2,64,874 on account of DCRG, an amount Rs. 21,986 towards GIS (Saving fund); an amount of Rs. 30,000 towards GIS (Insurance) and Leave Encashment amount of Rs. 46,610 by putting, her signature in the pension Acquittance Roll and General Acquaintance Roll on 12.1.2007 in presence of some of her family members. It has also been stated that after payment of loan amount to UBI, Morigaon and SBI, Morigaon, a sum of Rs. 8,460, out of the amount of Rs. 1,28,523 towards GPF, was deposited in petitioner's Bank Account No. 15445. It is also acknowledged by the respondent No. 4 that due to the request made by the family members of the deceased colleague, he had allowed the writ petitioner to receive the amount in cash which the petitioner received on 12.1.2007. With regard to the letter dated 4.7.2007, he has stated ^that the letter was issued so that the petitioner could open a bank account for depositing the remaining amount of pensionery amount. In substance, the allegation of mis-appropriation of any amount was denied. 9. The petitioner had filed an affidavit-in-reply contending that Acquittance Roll annexed by the respondent No. 4 in the affidavit is a disputed document. Pursuant to an order of this court dated 21.8.2012, the Director of Secondary Education had lodged an ejahar, which was registered as Morigoan P.S. Case No. 257/2012. 10. The respondent No. 6 by filing an affidavit had indicated the status of progress of investigation in the said case. 11. Mr. A. Mannaf, learned counsel for the petitioner, at the very outset, has submitted that monthly pension is now being received by the petitioner regularly. It is submitted by him that petitioner did not receive the pensionery benefits and it is submitted by him that if the petitioner had received the amount, there would have been no occasion for the Principal to have issued the letter dated 4.9.2007. He argues that Acquittance Roll as produced by the respondent No. 4 is a disputed document and no reliance can be placed on that. He has submitted that because of non-payment of the dues, the petitioner has been suffering a lot and, therefore, an appropriate direction may be issued by this court for payment of her pensionery dues. 12. Mr. He argues that Acquittance Roll as produced by the respondent No. 4 is a disputed document and no reliance can be placed on that. He has submitted that because of non-payment of the dues, the petitioner has been suffering a lot and, therefore, an appropriate direction may be issued by this court for payment of her pensionery dues. 12. Mr. U.K. Goswami, learned Standing Counsel, Education, submits that the petitioner had received DCRG, GIS (Savings fund), CIS (Insurance) and Leave Encashment by signing in the Acquittance Roll over revenue stamps and, therefore, the plea raised by the petitioner regarding non-payment of her dues is wholly not tenable. It is further submitted that the petition raises disputed question of facts which cannot be gone into an application under article 226 of the Constitution of India and, therefore, the writ-petition is liable to be dismissed. It is also submitted that there may be some irregularity in allowing the petitioner to receive the amount in cash but, because of said irregularity, if any, one cannot take advantage after receiving the money by contending that there was violation of the memorandum dated 19.11.2005 and that the amount was embezzled by others. It is also submitted that Mr. Bharat Chandra Sarma and Mr. Basanta Kakati, against whom serious allegations are made, are also not made party respondents. There is no irregularity in issuing letter dated 4.9.2007 asking the petitioner to open up a bank account as there were further dues to be paid to the petitioner and the fact that such letter was issued on 4.9.2007 would not, per se, establish that no amount was paid to the petitioner earlier. 13. By placing before the Court the status report dated 2.5.2014, Mr. S.U. Ahmed, learned State Counsel, submits that as per statement recorded by the Deputy Superintendent of Police (Headquarter) including the statement of the petitioner, her son Md. Kutubuddin, Fakaruddin and also her daughter Mamataj Begum, the money receipt of Rs. 3,69,562 dated 12.1.2007 was signed by the petitioner after being written by her son-in-law, after receiving the said amount in presence of the witnesses. The document was sent for examination of the Forensic Science Laboratory (FSL) and the report dated 26.10.2013 of the FSL is to the effect that Money Receipt was written by Bharat Chandra Sarma, UDA and accordingly, Charge Sheet No. 86/14 dated 30.4.2014 was filed against Bharat Chandra Sarma. The document was sent for examination of the Forensic Science Laboratory (FSL) and the report dated 26.10.2013 of the FSL is to the effect that Money Receipt was written by Bharat Chandra Sarma, UDA and accordingly, Charge Sheet No. 86/14 dated 30.4.2014 was filed against Bharat Chandra Sarma. Learned counsel seeks to emphasise that assuming Money Receipt was written by Bharat Chandra Sarma, raising doubt about authenticity of the Money Receipt, same, does not, in any way, negate the signatures of the petitioner in the Acquittance Roll over Revenue stamps, which also appear to be the version of the witnesses examined by the I.O. 14. I have heard the learned counsel for the parties and have perused the materials on record. 15. In the writ petition, the petitioner has stated her age to be 35 years. The Dependent Certificate dated 14.11.2016 shows that the petitioner is aged about 50 years. Her daughters, namely, Musst. Fatema Khatuan, Musstt. Khairun Ness, Musstt. Mafida Khatun, Musstt. Azmuda Begum, Musstt. Mamtaz Begum are aged about 34,30,26,22 and 20 years, respectively. Her sons, namely, Md. Badar Uddin, Md. Kutub Uddin, Md. Fakar Uddin, Md. Jiabur Rahman, Md. Fiazur Rahman and Md. Makibur Rahman are aged about 32,28,24,18,16 and 12 years, respectively. The husband of the petitioner, according to the service book, was about 58 years at the time of his death and he was due to retire on 1.1.2008. 16. With regard to the PPF, it appears from the passbook produced by the petitioner that an amount of Rs. 8,460 was credited in the account of the petitioner, which represents the amount that the respondents claimed to have deposited on account of GPF after recovery of loan amount of Rs. 28,100 of UBI, Morigaon and Rs. 90,963 to SBI, Morigaon out of an amount of Rs. 1,28,523. The report dated 29.1.2008 of the respondent No. 3 (Annexure A to his affidavit) shows that the amount of DCRG, CIS, Leave Encashment were disbursed to the petitioner. The petitioner, in her reply affidavit to the affidavit-in-opposition filed by the respondent No. 3, had stated that her signatures were fraudulently obtained by the school authority in the Acquittance Roll. The Acquittance Roll annexed by the respondent No. 4, which is argued by the petitioner to be a disputed document, shows that the petitioner had signed over Revenue stamps. The petitioner, in her reply affidavit to the affidavit-in-opposition filed by the respondent No. 3, had stated that her signatures were fraudulently obtained by the school authority in the Acquittance Roll. The Acquittance Roll annexed by the respondent No. 4, which is argued by the petitioner to be a disputed document, shows that the petitioner had signed over Revenue stamps. Be that as it may, the petitioner had not denied that she had not put her signature on the Acquittance Roll but what she contends is that her signatures were fraudulently obtained in the Acquittance Roll. The pleas and counter pleas raised by the parties give rise to highly disputed questions of fact. Signature of the petitioner in the Acquittance Roll would, prima facie, indicate that payment had been made as shown in the Acquittance Roll but the petitioner contends that money was not actually paid. Even assuming that there was some violation in making payment of the amount in cash, the same will not automatically lead to the conclusion that money was not, in fact, paid to the petitioner. I find no force in the contention of the learned counsel for the petitioner that if the pensionery benefit had already been paid, there would have been no occasion for issuing the letter dated 4.9.2007 for opening bank account. Admittedly, there were dues to be paid and which had, in fact, been credited to the said account. It is also noticed that money was deposited in the bank account of the petitioner which was opened after issuance of the letter dated 4.9.2007. 17. The affidavit of the respondent No. 6 as also the status report dated 2.5.2014 indicate that counter-signature of the petitioner was taken on the Pension Register and Acquittance Roll, after receiving, the amount from the school authority in presence of witnesses. The Money Receipt dated 12.1.2007, appears to be subject-matter in Morigaon P.S. Case No. 257/2012, in which charge sheet was submitted against Bharat Chandra Sarma. 18. While the entire edifice of the case is sought to be built up by attributing various allegations of acts of omission and commission on the part of Mr. Bharat Chandra Sarma and Basanta Kalita, inexplicably, they are not made parties, though they, having regard to the nature of allegations made against them, are necessary parties. 19. 18. While the entire edifice of the case is sought to be built up by attributing various allegations of acts of omission and commission on the part of Mr. Bharat Chandra Sarma and Basanta Kalita, inexplicably, they are not made parties, though they, having regard to the nature of allegations made against them, are necessary parties. 19. In this proceeding under article 226 of the Constitution of India, I am of the opinion that it will be extremely hazardous for this court to record any finding with regard to the claim of the petitioner that she was not paid the amount shown to have been paid to her though her signatures were obtained in the Acquittance Roll. 20. In view of the above, I am of the considered opinion that no mandamus can be issued to the respondent authorities to make payment of the amounts in question. However, the departmental authorities are directed to ensure that pensionery benefit to any person will be disbursed only in accordance with guidelines/memorandum holding the field and if payment by way of cash is not permissible, the same has to be enforced strictly so that situation such as the one in the instant case, does not arise. 21. Consequently, the writ petition is dismissed. No cost.