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2017 DIGILAW 797 (GAU)

Yanbeni Lotha v. State of Nagaland

2017-06-15

LANUSUNGKUM JAMIR

body2017
JUDGMENT : Lanusungkum Jamir, J. 1. Heard Mr. Supongwati, learned counsel for the petitioner. Also heard Mr. K. Angami, learned Government Advocate appearing for the State respondents as well as Mr. Yangerwati, learned C.G.C. appearing for the respondent No. 6. None appears for the respondent No. 7/The Accountant General, Nagaland, Kohima. The petitioner's late husband Ghana Kanto Konwar was appointed as work charged Assistant Lineman under the establishment of the Executive Engineer (E), Wokha, Nagaland. The petitioner's late husband while reconnecting the line as per the detailment at Wokha Town, the electric post broke down and hit on the retaining wall and died on 18.10.2003. As the petitioner's late husband died in harness while performing bona fide Government's duty and as no ex-gratia and pensionary benefits were paid by the respondents, the petitioner filed W.P.(C) No. 171(K) of 2007 which was disposed of by an order dated 26.02.2008 directing the respondents to consider and finalize the claim of the petitioner and after due verification of the claims made, pay to the petitioner, such amount as she would be entitled to receive in law on account of ex-gratia and extraordinary family pension as may be applicable. Thereafter, the respondents were notified by letter dated 26.03.2008 written by the counsel for the petitioner with regard to the order dated 26.02.2008 passed by this Court in W.P.(C) No. 171(K) of 2007. As no steps were taken, another notice was sent on 17.05.2011. Further, a reminder notice dated 18.11.2015 was also sent. As there was no response from the respondents, the petitioner again filed W.P.(C) No. 49 (K) of 2016 for compliance of the order dated 26.02.2008 passed in W.P.(C) No. 171(K) of 2007. During the pendency of W.P.(C) No. 49 (K) of 2016, the respondents issued a letter addressed to the counsel for the petitioner on 12.05.2016 indicating that grant of ex-gratia and extraordinary pension to the petitioner is not permissible. In that view of the matter, W.P.(C) No. 49(K) of 2016 was withdrawn with liberty to file afresh. Consequently, the present writ petition has been filed challenging the impugned letter dated 12.05.2016 with further prayer for grant of ex-gratia and extraordinary pension to the petitioner. 2. Mr. Supongwati, learned counsel for the petitioner submits that the petitioner's late husband was initially appointed as work charged Assistant Lineman and has been serving to the best of his ability. Consequently, the present writ petition has been filed challenging the impugned letter dated 12.05.2016 with further prayer for grant of ex-gratia and extraordinary pension to the petitioner. 2. Mr. Supongwati, learned counsel for the petitioner submits that the petitioner's late husband was initially appointed as work charged Assistant Lineman and has been serving to the best of his ability. But unfortunately, he died on 18.10.2003, while performing bona fide Government duty. He submits that the petitioner is entitled to ex-gratia in terms of the Office Memorandum dated 11.09.1998 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Pension and Pensioners' Welfare wherein at Clause 5(a) it provides that ex-gratia payment shall be paid for death occurring due to accidents in the course of performance of duties amounting to Rs. 5 lakhs. Further, the same Memorandum has given illustrative examples of cases covered under different clauses of Para 5 of the Office Memorandum and in the illustration at Clause (a) 8 it provides for death due to electrocution of Departmental employees engaged in rectification of defects in generation and distribution of electricity. He submits that the case of the petitioner's late husband is solely covered by the said Office Memorandum dated 11.09.1998 which is also adopted by the State of Nagaland and therefore, the respondents are liable to pay ex-gratia to the petitioner. To contend that the Office Memorandum dated 11.09.1998 is being adopted by the State of Nagaland, learned counsel for the petitioner has drawn the attention of this Court to the Note issued by the Finance Department dated 16.11.2015 wherein in relation to another case, the Finance Department has conveyed its approval for payment of ex-gratia in line with Office Memorandum dated 11.09.1998 issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Pension and Pensioners Welfare. Learned counsel for the petitioner submits that the petitioner is entitled to extraordinary pension inasmuch as, the petitioner's late husband was working as work charged employee under the Government of Nagaland for more than 26 years. Learned counsel for the petitioner places reliance in the case of Smt. Sungmo Chang Vs. Learned counsel for the petitioner submits that the petitioner is entitled to extraordinary pension inasmuch as, the petitioner's late husband was working as work charged employee under the Government of Nagaland for more than 26 years. Learned counsel for the petitioner places reliance in the case of Smt. Sungmo Chang Vs. State of Nagaland & Anr., 2017 (3) GLT 60 : (W.P.(C) No. 87(K) of 2016) whereby this Court, by judgment and order dated 9.5.2017 had directed the respondents therein to regularize the service of the petitioner's husband posthumously for the purpose of pension or pensionary benefits and also pay ex-gratia of Rs. 5 lakhs to the petitioner and her children. It is submitted that the case of Smti Sungmo Chang (supra) pertains to the same Department i.e. Department of Power, Government of Nagaland and that the late husband of the petitioner therein was also a work charged employee. In that view of the matter, learned counsel for the petitioner prays for a similar direction in the present case. 3. Mr. K. Angami, learned Government Advocate appearing for the State respondents, on the other hand, submits that the petitioner is not entitled to ex-gratia inasmuch as, the petitioner's late husband was paid 'risk allowance'. Therefore, the respondents cannot be directed to pay ex-gratia inasmuch as, the petitioner's late husband during his service had all along been enjoying risk allowance paid by the Government. Learned Government Advocate further submits that the case of Smti Sungmo Chang (supra) is not applicable to the present case in hand inasmuch as, the late husband of the petitioner in the said case was enjoying scale pay though he was a work charged employee. However, in the present case, the petitioner's late husband was on fixed pay as a work charged employee. Therefore, the facts and circumstances of the case of Smti Sungmo Chang (supra) is different from the present case. Learned Government Advocate has also drawn the attention of this Court to the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as "the Rules of 1972") more particularly, to Rule 2(b) and (c) which provides that the Rules of 1972 would not be applicable to person in casual and daily rated employment and for those persons paid froth contingencies. Learned Government Advocate has also drawn the attention of this Court to the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as "the Rules of 1972") more particularly, to Rule 2(b) and (c) which provides that the Rules of 1972 would not be applicable to person in casual and daily rated employment and for those persons paid froth contingencies. As the petitioner's late husband was a work charged employee on fixed pay, the case of the petitioner is covered by Rule 2(b) and (c) of the Rules of 1972 and therefore, the Rules of 1972 is not applicable to the petitioner. 4. Mr. Yangerwati, learned C.G.C. submits that the Office Memorandum dated 11.9.98 pertains to Central Government Servant and therefore, it is upon the State Government to decide as to whether to adopt the Office Memorandum dated 11.09.1998 or not. In the present case, he submits that in view of the action of the State Government, it appears that they have adopted the Office Memorandum dated 11.09.1998 and therefore, he has nothing to say in the matter. 5. I have considered the submissions forwarded by the learned counsel for the parties. 6. This Court has considered the Office Memorandum dated 11.09.1998 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Pension and Pensioners Welfare. There is no statement in the affidavit-in-opposition that the said Office Memorandum dated 11.09.1998 is not applicable in the State of Nagaland. Further, a consideration of the Note dated 16.11.2015 indicates that the Finance Department in the case of Smti H. Nyawang Vs. State of Nagaland & Ors. (W.P.(C) No. 101(K) of 2015) had conveyed the aforesaid case to be considered for payment of ex-gratia in line with the Office Memorandum dated 11.09.1998. In that view of the matter, the action of the State respondents would clearly indicate that the Office Memorandum dated 11.09.1998 has been adopted by the State Government. 7. The submissions of the learned Government Advocate with regard to the risk allowance paid to the petitioner's late husband during his service career has been considered by this Court. Further, the submission of the learned Government Advocate that the petitioner's late husband was not a regular Government employee and he was only serving as a work charged employee on fixed pay and therefore, is not entitled for ex-gratia or family pension has also been considered. Further, the submission of the learned Government Advocate that the petitioner's late husband was not a regular Government employee and he was only serving as a work charged employee on fixed pay and therefore, is not entitled for ex-gratia or family pension has also been considered. Further, the case of Smti Sungmo Chang (supra) relied upon by the learned counsel for the petitioner has also been taken into consideration. This Court has also considered the Rules of 1972 relied upon by the learned Government Advocate. It is important to note that apart from Rule 2(b) and 2(c), Rule 2(2) 3 provides for Death Benefits wherein it is stipulated that in the event of death in harness of temporary/quasi permanent Government Servant their families shall be eligible to family pension and death gratuity on the same scale as admissible to families of permanent Government servants under the Rules of 1972. This Court is therefore of the considered opinion that the case of the petitioner's late husband would be covered by Rule 2(2)3 of the Rules of 1972. 8. The petitioner's late husband was serving as work charged employee on fixed pay. Further, the late husband of the petitioner in Smti Sungmo Chang (supra) was also a work charged employee however on scale pay. In the considered opinion of this Court, just because the petitioner's late husband was a work charged employee on fixed pay would not change the complexion of the case inasmuch as, whether an employee is on fixed pay or on a scale pay would not differentiate the status as work charged employee under the Government of Nagaland. 9. After taking into consideration the facts and circumstances of the case, this Court in the case of Smti Sungmo Chang (supra) had come to the conclusion that the respondents should regularize the service of the petitioner's late husband for the purpose of pensionary benefits and also pay Rs. 5 lakhs ex-gratia therein. Therefore, this Court is of the considered opinion that the present case is also solely covered by the case of Smti Sungmo Chang (supra). 10. 5 lakhs ex-gratia therein. Therefore, this Court is of the considered opinion that the present case is also solely covered by the case of Smti Sungmo Chang (supra). 10. Accordingly, this writ petition is also disposed of in line with the judgment and order dated 09.05.2017 passed in the case of Smti Sungmo Chang (supra) by directing the respondents to regularize the case of the petitioner's late husband posthumously only for the purpose of pension or pensionary benefits and also to pay Rs. 5 lakhs as ex-gratia to the petitioner. Such exercise shall be completed within a period of six months from the date of receipt of a copy of the order of this Court by the respondents. 11. With the above observations and directions, this writ petition is disposed of. No costs.