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2019 DIGILAW 1454 (JHR)

Shikha Hemrom v. State of Jharkhand

2019-08-21

S.N.PATHAK

body2019
JUDGMENT : Heard learned counsel for the parties. 2. Petitioner has approached this Court for quashing part of office order no. 09/Survey MACP–64/11-273/Survey dated 19.10.2012 whereby and whereunder First Financial Upgradation benefits given to the deceased-husband of the petitioner has been cancelled and an order has been issued for recovery of the same. Further prayer has been made to make payment of amount of MACP and earned leave of deceased husband of the petitioner, which has not been paid till date. 3. Case of the petitioner is that her husband Yugal Kumar Hemrom was an employee working to the post of Moharrir under the Revenue and Land Reforms Department, Government of Jharkhand, Ranchi. On 17.04.2013, said Yugal Kumar Hemrom was posted at Settlement Office, Hazaribagh, which is evident from the Pension Payment Order brought on record vide Annexure-1 to the writ petition. Said Yugal Kumar Hemrom had been allowed and granted benefits of First Upgradation under the A.C.P. Scheme in the pay scale of Rs.4,000 – 6,000 with effect from 09.08.1999 and second financial upgradation under the ACP Scheme with effect from 01.11.2002 in the pay scale of Rs.4,500 – 7,000 vide office order dated 10.08.2007. Thereafter, vide memo no. 325, dated 12.11.2008, issued by the Revenue and Land Reforms Department addressed to the Accountant General (A & E), Jharkhand, confirmation of the 1st and 2nd Financial Upgradation was communicated to said Yugal Kumar Hemrom, which is evident from Annexure-2 to the writ petition. Subsequently, vide office order dated 19.10.2012 (Annexure-3), issued by the Revenue and Land Reforms Department, Government of Jharkhand, benefits granted to the petitioner’s husband and several other employees stood cancelled and an order was also passed for recovery of the said amount paid pursuant to grant of 1st A.C.P. benefits. Name of petitioner’s husband finds place at Serial No. 67 of the said list. Petitioner represented before the Director, Revenue and Land Reforms Department as well as Settlement Officer and Assistant Settlement Officer, Hazaribagh but her grievance has not been redressed and hence she has been compelled to knock door of this Court 4. Mr. Ajit Kumar, learned counsel appearing for the petitioner strenuously urges that petitioner is entitled for the benefits which had accrued to her deceased husband but subsequently it has been cancelled illegally and arbitrarily by the respondent authorities. Mr. Ajit Kumar, learned counsel appearing for the petitioner strenuously urges that petitioner is entitled for the benefits which had accrued to her deceased husband but subsequently it has been cancelled illegally and arbitrarily by the respondent authorities. Learned counsel further argues that similar issues have already been raised before this Court by similarly situated persons (widows of the deceased employees) in W.P.(S) No. 99 of 2013, which was allowed vide order dated 20.11.2013 by quashing the impugned order and directing the respondents to grant benefits to those petitioners. Learned counsel submits that in view thereof, this writ petition may also be disposed of by quashing the impugned order and directing the respondents to grant benefits to the petitioner. Learned counsel appearing for the petitioner produces copy of order passed in W.P.(S) No. 4148 of 2017 and W.P.(S) No. 7625 of 2012 and submits that instant writ petition may be allowed in light of orders passed in those writ petitions. 5. Per contra counter affidavit has been filed by the respondents. 6. Mr. H.K. Gupta, learned counsel appearing on behalf of the respondents vehemently opposes contention of learned counsel for the petitioner and submits that petitioner is not entitled for the benefits as late husband of the petitioner was duly informed about order of cancellation and as such there is no violation of principles of natural justice and even if husband of the petitioner is now not alive, petitioner is not entitled for any benefits. Learned counsel further submits that reliance of the petitioner in the reported cases is of no help as the same relates to recovery after disbursement of retiral benefits whereas in the instant case, no recovery has been made from the retiral benefits rather it has been made from the benefits of MACP. 7. Be that as it may, this Court is of the considered opinion that case of the petitioner needs consideration. Petitioner is claiming benefits of MACP and that of the leave salary and also for quashing the order cancelling grant of benefits of ACP. The fact remains that pay scale granted to the petitioner’s husband found entry in the service book. The same was not denied by the respondent authorities. The pay scale accrued to the late husband of the petitioner after grant of benefits of ACP, could not have been withdrawn without affording any opportunity of hearing. The fact remains that pay scale granted to the petitioner’s husband found entry in the service book. The same was not denied by the respondent authorities. The pay scale accrued to the late husband of the petitioner after grant of benefits of ACP, could not have been withdrawn without affording any opportunity of hearing. Admittedly the same was not done. Petitioner’s husband was never granted any opportunity of hearing nor was any show-cause issued. After death of petitioner’s husband any modification in the service book is not at all tenable in the eyes of law. No order can be passed recovering amount from the legal heirs of the employee. 8. The issue fell for consideration before the Hon’ble Apex Court in the case of N.D.P. Namboodripad (Dead) By Lrs. Vs. Union of India & Others reported in (2007) 4 SCC 502 and the Hon’ble Court has been pleased to hold that “if any excess payment has been made to the deceased appellant, it shall not, however, be recovered from the Legal Representatives of the deceased appellant”. The pay scale accrued to the late husband of the petitioner after grant of benefits of ACP, could not have been withdrawn without affording any opportunity of hearing, that too after his death. It was open to the respondent – State to proceed against the deceased husband in accordance with law but nothing has been done and a plea has been taken to recover and adjust excess amount, as it has been paid illegally to the deceased husband of the petitioner. 9. In view of settled law, any adjustment and recovery from legal heirs of the deceased employee is not permissible in the eyes of law. Admittedly, petitioner is entitled for arrears of pension which has been illegally withheld by the respondents. 10. As a result of aforementioned discussion, part of the order dated 19.10.2012 (Annexure-3) so far it relates to the petitioner whereby grant of benefits of 1st ACP has been cancelled, is hereby quashed and set aside. Respondents are directed to pay entire benefits to the petitioner for which her husband was entitled. Let the consequential benefits including benefits of MACP and leave salary be paid to the petitioner and pension be fixed accordingly, within a period of eight weeks from the date of receipt/ production of a copy of this order. 11. Respondents are directed to pay entire benefits to the petitioner for which her husband was entitled. Let the consequential benefits including benefits of MACP and leave salary be paid to the petitioner and pension be fixed accordingly, within a period of eight weeks from the date of receipt/ production of a copy of this order. 11. With the aforesaid observations and directions, this writ petition stands allowed.