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2020 DIGILAW 463 (UTT)

Kamini Verma v. R. Meenakshi Sundram

2020-11-19

SHARAD KUMAR SHARMA

body2020
JUDGMENT Sharad Kumar Sharma, J. - The petitioner herein, had instituted a writ petition before the Division Bench of this Court being Writ Petition (S/B) No. 399 of 2019, Kamini Verma Vs. State of Uttarakhand and others, which was decided by the Division Bench of this Court vide its judgement dated 29.08.2019, whereby, according to the petitioner, there were few sets of direction issued for the respondents to be complied with. One was that as contained in para 4 and second was that as contained in para 5 of the said judgement, the same read as under:- "4. Instead of keeping the writ petition pending to file of this Court, suffice it to direct the competent authority to release the petitioner's retiral benefits such as interim pension, leave encashment, medical reimbursement and GIS within a period of one month from the date of production of a certified copy of this order. 5. The petitioner's entitlement for GPF shall be computed within one month from today; and the amount so computed shall be paid within 15 days from the date of such computation. Since the petitioner's entitlement for gratuity and regular pension is said to depend on the outcome of the disciplinary enquiry initiated against her, which is still pending though a chargesheet was issued more than one and a half years ago, suffice it to dispose of the writ petition directing the respondents to complete the disciplinary enquiry with utmost expedition and, in any event, within a period of two months from the date of production of a certified copy of this order. Depending on the outcome of the disciplinary enquiry, gratuity and regular pension, to which the petitioner may be entitled to, shall be released within a period of one month from the date on which the disciplinary authority passes final orders in the disciplinary proceedings initiated against the petitioner. We may not be understood to have held that, irrespective of the outcome of the disciplinary proceedings, the petitioner's retiral benefits, such as regular pension and gratuity, should be paid to her. All that we have held is that, in case the petitioner is absolved of the charges levelled against her in the departmental enquiry, payment of regular pension and gratuity to her shall be considered soon thereafter in accordance with law." 2. All that we have held is that, in case the petitioner is absolved of the charges levelled against her in the departmental enquiry, payment of regular pension and gratuity to her shall be considered soon thereafter in accordance with law." 2. Alleging its non-compliance, the present contempt petition was preferred by the petitioner on 19.02.2020, on which notices were issued to the respondents by this Court on 24.02.2020. On service of notice, the respondents had filed their respective response affidavit on 05.08.2020, and they had made an averment with regard to the steps which was taken by them for its compliance. When the contempt petition was listed on 27.08.2020, the petitioner was not present, hence this Court, after considering the pleadings raised in the contempt petition, as well as the response affidavit filed by the respondents, the same was disposed of by the judgement dated 27.08.2020, which contained the following directions:- "This direction as it has been given has to be splitted into its consideration in the Contempt Petition pertaining to:- (i) The release of interim pension, (ii) The release of leave encasement, (iii) The release of medical leave, (iv) The release of group insurance benefits, (v) The GPF and (vi) The conclusion of the disciplinary proceedings. The Division Bench has observed that the remittance of the pensionary benefits and the gratuity would be depending upon the out come of the disciplinary proceedings. The respondents filed their response affidavit and in the response affidavit, thus, filed they have specifically submitted that respondents have paid the interim pension to the petitioner which has been fixed at the rate of Rs.46,098/- per month, further, the GPF of an amount of Rs.18,03,758/- has been paid. The group insurance of Rs.1,21,929/- has been paid and the leave encasement of Rs.3,06,348/- for 107 days has already been paid. The only amount which is disputed is pertaining to the payment of medical benefits for the period from 03.06.2017 to 08.04.2018. The medical documents in its correspondence dated 20.02.2020 had been solicited from the petitioner to be supplied, in order to fulfill the said requirements. There have been certain processing, anomalies in determination of the medical leave as prayed for by the petitioner. The medical documents in its correspondence dated 20.02.2020 had been solicited from the petitioner to be supplied, in order to fulfill the said requirements. There have been certain processing, anomalies in determination of the medical leave as prayed for by the petitioner. But, as far as the disciplinary proceedings are concerned the enquiry has been completed the enquiry report has already been submitted on 08.06.2020, whereby it has been recorded that the petitioner have been found guilty of mis-appropriation of an amount of Rs.13,33,688/-. In view of the said finding and in view of the direction issued by the Division Bench the payment of pension and gratuity, had been made, subject to the consequences of a disciplinary proceedings. The rest of the directions issued by the Division Bench in its judgment dated 29.08.2019, have been complied with except that of the medical leave which the petitioner contends has not yet been paid. In view of the response affidavit, the respondents have been able to succeed to establish by placing the documents on record, that the judgment of the Division Bench dated 29.08.2019, has been complied with except that of the medical leave for which the respondents are directed to complete the process and remit the same in accordance with law within the period of two weeks from today, subject to the aforesaid the Contempt Petition is closed notices issued to the respondent is hereby discharged." 3. Consequently, the contempt petition was closed and the notices thus issued to the respondents were discharged on the ground that as per the compliance affidavit, major amounts as dealt with therein, had been remitted to the petitioner, hence there was substantial compliance. 4. Subsequently, the petitioner had filed a Recall Application on 21.09.2020, seeking recall of the judgment dated 27.08.2020, contending thereof that on account of poor net connectivity and major other technical problems and also the fact that his rejoinder was considered by this Court, he could not put in appearance on 27.08.2020, when the contempt petition was decided on merits and hence he sought a recall and at the preliminary stage, when he argued the Recall Application on 22.09.2020, the petitioner has confined his argument to the following effect:- "This contempt petition was decided finally on 27.08.2020. Recall application has been field by the petitioner on different grounds:- i. That the display board was not showing the correct number. ii. Recall application has been field by the petitioner on different grounds:- i. That the display board was not showing the correct number. ii. The Court has not considered the replication filed by the petitioner to the objection of respondents. iii. The counsel for the petitioner has argued that there was a poor net connectivity on the day when contempt was decided." 5. The respondent was granted time to file their objection to the Recall Application, to which the objection was filed and thereafter once again, when the matter was taken up on couple of occasions, the learned counsel for the petitioner has raised an objection qua the pleadings raised in "para 4", of the compliance affidavit dated 31.07.2020, so far it related to the remittance of the dues as referred therein, particularly, pertaining to the payment of retiral dues and that of the medical reimbursements, which was contended by the petitioners was still due to be paid. 6. In order to better elucidate the arguments to the pleadings raised in para 4 of the compliance affidavit, the respondents were granted time to file an affidavit giving an explanation to the contents of para 4 of the compliance affidavit and despite of various opportunities being granted, no affidavit as such has been filed till date by the respondents. 7. Heard learned counsel for the parties on the Recall Application. 8. Today, when the matter was being taken up before initiation of arguments on merits, the learned counsel for the respondents has submitted that certain objections, which were raised by the Treasury Officer on the documents, submitted by the respondents for processing, pertaining to the remittance of retiral dues has been rectified and the matter has been remitted back to the Sub Treasury Officer on 18.11.2020, with the recommendation for the payment of retiral dues. 9. The learned counsel for the petitioner has submitted, that despite the said steps having been taken, still there is non compliance of the direction, for the reason being that para 4 of the judgement of the Division Bench of this Court contained a direction for the payment of interim pension, leave encashment, "medical reimbursement". There is no dispute pertaining to the remittance of interim pension and the leave encashment, that has already been remitted to the petitioner. There is no dispute pertaining to the remittance of interim pension and the leave encashment, that has already been remitted to the petitioner. Now the dispute which has been confined by the petitioner by virtue of the Recall Application, is limited to the extent of the efforts which has been made by the respondents for the payment of the retiral benefit; on the culmination of the disciplinary proceedings which were being proceeded against the petitioner, which is shown to have been now concluded, where she has been found to be guilty of receiving an over payment of fund, of the department and it is due to be paid by her. But still the Division Bench of this Court, while disposing of the writ petition, in its 'para 5' of the judgement has observed that the direction to determine the retiral benefits and the payment of regular pension and gratuity; to the petitioner may not be construed as to be a positive direction which had been given by the Court, for its remittance, for the reason being that it was held that it would be subject to the conclusion drawn in the disciplinary proceedings which were being conducted against the petitioner. 10. The argument of the learned counsel for the petitioner is that the direction as it had been given in para 4 of the Division Bench judgement would be a positive direction given to the respondents for the payment of medical reimbursement. He submits that in view of the documents, which he has supplied in the rejoinder affidavit, and which he alleges that the same was not considered by this Court when the contempt petition itself was decided on its merit on 27.08.2020, which had also constituted as to be one of the grounds for the recall. He has drawn the attention of this Court to the various contentions raised by him in the rejoinder affidavit filed by her on 17.08.2020, for the reason being that the only embargo which has been drawn by the respondents for non remittance of medical dues was that she has not supplied the original document which was necessarily required to be submitted by her to be considered for the remittance of medical dues for the period from 03.06.2017 to 08.04.2018. 11. 11. Learned counsel for the petitioner has drawn attention of this Court to RA1, which is a communication dated 12.10.2018, which bares an endorsement of the receipt by the Principal of the Institution, documents which were supplied by the petitioner for the purposes of considering the determination of the medical reimbursements for the aforesaid period. 12. He has further submitted that if the subsequent correspondence dated 04.11.2019, which was made by the Additional Director to the Chief Medical Officer/Secretary, Uttarakhand Medical Board is taken into consideration, it seems that the medical document, which was shown to have been received by the respondent on 12.10.2018, was in fact actually sent to the Chief Medical Officer, for its consideration, as would be apparent from the communication dated 04.11.2019, which has rather made the following observations:- image 13. The learned counsel for the petitioner further submits that the observations made by the respondents in the correspondence dated 08.01.2020, which was made by the Chief Education Officer, Pithoragarh; that the petitioner has taken away all the original documents, with her due to which it was not possible to determine the medical reimbursements, is absolutely a false story and he submits that it is not practically possible for an employee that the document which was already submitted by the petitioner on 12.10.2018, which was already sent for being processed to the Chief Medical Officer, it could not have been taken back by the petitioner, as it has been averred in the letter dated 08.01.2020, and hence the petitioner contends the said very basis of denial or non-remittance of medical benefit on the basis of not supplying of the requisite documents is not sustainable. 14. After having heard the learned counsel for the parties at length, particularly while making reference to para 4 of the compliance affidavit, the major part of the dues which was payable to the petitioner admittedly has already been remitted as apparently dealt with in the order dated 27.08.2020, sought to be recalled, except the controversy which is now confined to the payment of medical reimbursements and the retiral benefits. This Court is of the opinion that the Division Bench judgement did not contain a positive direction that it was mandatorily required to remit the retiral benefits or the gratuity, because the same was made as a subject matter, as a consequence of the disciplinary proceedings. This Court is of the opinion that the Division Bench judgement did not contain a positive direction that it was mandatorily required to remit the retiral benefits or the gratuity, because the same was made as a subject matter, as a consequence of the disciplinary proceedings. But, since the learned counsel for the respondents had made a statement today that the documents of the petitioner for the remittance of the retiral benefits has already been forwarded on 18.11.2020, after removing all the formal defects. In that view of the said statement made by the counsel for the respondent, even the allegation of non-compliance of the direction for the remittance of the retiral benefits, at least that now stands rectified as the same has been processed to be made to the petitioner. 15. The argument pertaining to the payment of medical reimbursement, the learned counsel for the respondents, has submitted that in the light of the observations made in para 4 of the Division Bench judgement, it never contained any positive direction to remit the medical dues, but rather it was a direction for the consideration which was made by the Court. In response to it, the learned counsel for the petitioner has submitted that the direction contained in para 5 of the Division Bench judgement was only a qualification to the directions which was given in para 4 of the judgement of the Division Bench, for the payment of dues and the observations made in para 5 of the judgement would be exclusive of the direction as it has been given in para 4, for the payment of the medical reimbursements. 16. He further submits that this argument of the learned counsel for the respondents pertaining to the payment of the medical reimbursements, is not sustainable in view of the correspondences which he has brought on record in the rejoinder affidavit; which in fact itself shows that they had perhaps already processed the application of the petitioner for the remittance of the medical reimbursement that means it contained a direction for the payment of the medical reimbursements also. 17. 17. In view of the aforesaid, this Court is of the view that as far as the judgement is concerned, particularly in view of the averments made in the compliance affidavit, the substantial compliance has already been made, except the part of the remittance of the medical reimbursements, which has been denied due to the allegation of non supplying of the requisite documents, in order to enable to process the claim of medical reimbursements. 18. As far as the said remittance of medical reimbursements is concerned, the argument of the learned counsel for the respondent is that it was not the direction contained in the judgement sought to be enforced is not accepted. In fact, the direction contained was a positive direction for the remittance of the medical reimbursement, which was even directed to be paid and was even also processed by the respondent as would be apparent from the correspondences filed with the rejoinder affidavit. 19. While disposing of this Recall Application, because the major segment of the judgement of the Division Bench has already been complied with except the remittance of medical reimbursement, it is hereby directed that the Chief Education Officer, Pithoragarh, Uttarakhand would ensure the remittance of the medical reimbursements within a period of three months from the date of presentation of the certified copy of this order. 20. Subject to above observation, the Recall Application stands disposed of. Pending application, if any, stands disposed of accordingly.