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2020 DIGILAW 606 (JHR)

Shyamali Mandal v. State of Jharkhand

2020-06-17

DEEPAK ROSHAN

body2020
JUDGMENT : Heard learned counsel for the parties through V.C. 2. By this writ application the petitioner has prayed for quashing the Memo No.94 dated 08.02.2012 and also the letter No.53 dated 25.02.2012 whereby the respondent authority have initiated an enquiry against the husband of the petitioner namely Swapan Mandal after his death and has recommended for stoppage of the family pension of the petitioner till a sum of Rs.2,56,415/- is not recovered. The petitioner has also prayed for payment of gratuity and arrears of pension which has been withheld for the aforesaid reason. 3. Initially the instant application was preferred only for a direction upon the respondent to pay the amount of gratuity, arrears of pension and to fix the final family pension of the petitioner. Thereafter, during pendency of the instant writ application the petitioner received a letter under memo No.94 dated 08.02.2012 and also letter No.53 dated 25.02.2012, which were the internal communications between the respondent authorities, copy of which was also sent to the petitioner, whereby an enquiry was initiated due the missing expenditure voucher which could be brought to the notice to the respondent State only after the death of the petitioner and thereafter the said letters were made impugned after the order passed by this Court allowing the interlocutory application. 4. The facts of the case lie in a narrow compass. The husband of petitioner-late Swapan Kumar Mandal was appointed as a science teacher on 23.12.1976 and died in harness on 02.04.2011 while working as an in-charge headmaster in Upgrade High School Kapali. Soon after the death of the deceased-employee, the key of the school along with various documents such as expenditure vouchers etc. was handed over to the then senior most teacher-Nirmal Chandra Sardar on 10.04.2011. Thereafter, the in-charge headmaster vide letter No.04 dated 19.08.2011 informed the Drawing and Disbursing officer that he has no accounts information for the period when the deceased employee was the in-charge of the School. 5. The further case of the petitioner is that she was surprised to receive a letter dated 28.12.2011 from the Deputy Superintendent of Education Saraikela Kharsawa directing her to submit a sum of Rs.2,74,600/- through challan to district treasury so that the death-cum retiral benefits could be released in her favor. 5. The further case of the petitioner is that she was surprised to receive a letter dated 28.12.2011 from the Deputy Superintendent of Education Saraikela Kharsawa directing her to submit a sum of Rs.2,74,600/- through challan to district treasury so that the death-cum retiral benefits could be released in her favor. Thereafter, the petitioner received another letter under memo No.94 dated 08.02.2012 whereby she was informed that a committee was constituted under the District Education Officer, Saraikella to investigate the expenditure of a sum of Rs.2,74,600/- which was given to the deceased-Swapan Kumar Mandal under various heads for running of day today routine of the school. Pursuant to that the committee submitted its report on 25.02.2012 and found the vouchers of Rs.2,56,415 was missing against the amount given to the deceased employee under various heads and so only after the recovery of the said amount the pension should be released to the petitioner. A part of voucher of Rs.23121 was also available but it could not be ascertained as to under which head these amounts were spent. Further case of the petitioner is that the deceased Swapan Kumar Mandal was made in-charge of the midday meal from 25.09.2010 to February, 2011 and the allegation has been levelled for the period 01.07.2008 to 02.04.2011 i.e. much prior to his taking over the charge of midday meal and in the light of letter No.53 dated 25.02.2012, the provisional pension of the petitioner has been stopped from 12.05.2014. Thereafter, the petitioner received a letter bearing No.5 KTV/Sakchi/B.K/2015-2016/82 dated 16.10.2015 in the month of December, 2015, purportedly sent by the Chief Manager, Bank of India mentioning the captioned subject as regarding PPO No.141538182 from which the Government amount of Rs.2,56,145/- is recoverable. By the said letter the petitioner has been informed about the letter No.7390 dated 19.08.2015 issued from the office of the Treasury Officer, East Singhbhum, whereby the Bank was directed to inform the petitioner about the purported money being recoverable. The said letter dated 19.08.2015 along with the letters dated 10.08.2015 & 04.02.2015 were enclosed with the covering letter dated 16.10.2015. From the aforesaid letters it is evident that the Senior Accounts Officer has asked the Treasury Officer to get the amount of Rs.10,00,000/-, already paid as Gratuity, adjusted after deducting Rs.2,56,145/-, thus, showing payable to the tune of Rs.7,43,585/-. 6. From the aforesaid letters it is evident that the Senior Accounts Officer has asked the Treasury Officer to get the amount of Rs.10,00,000/-, already paid as Gratuity, adjusted after deducting Rs.2,56,145/-, thus, showing payable to the tune of Rs.7,43,585/-. 6. The learned counsel for the petitioner submits that the impugned letters are not sustainable in the eyes of law inasmuch as the said letters have been passed after so called enquiry in which there was no hearing of the petitioner as well as the said enquiry was held after the death of the deceased employee. Further, the letter dated 16.10.2015 issued by the Bank in the name of the petitioner is erroneous, arbitrary & illegal to cover up the negligence of the officers involved/concerned. In garb of the said letter, the respondents intend to recover Rs.2,56,415/- from the death benefits of the petitioner's husband which is most illegal, capricious, unwarranted and un-called for. He further submits that in another case of similar fact this Court has quashed the order by relying an earlier judgment of Hon'ble Apex Court in the case of State of Jharkhand VS Uma Prasad reported in 2009 16 SCC 767 . As such the impugned order deserves to be quashed and the balance amount which has been withheld by the respondents should be immediately and forthwith released in favor to the petitioner. He concluded his argument by submitting that there is a catena of judgments that no recovery can be made from the family pension. 7. Per contra, learned counsel for the State submits that during the preliminary enquiry, it was found that the husband of the petitioner-late Swapan Kumar Mandal had withdrawn Rs.2,74,600/- on different Government heads which have been described in details in the letter no.94 dated 08.02.12 and the District Superintendent of Education, Seraikela-Kharsawan has rightly ordered to enquire into the matter and directed the concerned authorities, and a copy of the said letter has been forwarded to the writ petitioner for information and necessary action in the matter with a request to appear with evidence during enquiry. He further submits that the said huge government amount paid to the deceased incharge of the school was found unaccounted and undisbursed, and as such, the aforesaid order and directions were issued and there is nothing wrong in the aforesaid order and directions of the District Superintendent of Education, Seraikela-Kharsawan. He further submits that the said huge government amount paid to the deceased incharge of the school was found unaccounted and undisbursed, and as such, the aforesaid order and directions were issued and there is nothing wrong in the aforesaid order and directions of the District Superintendent of Education, Seraikela-Kharsawan. He further submits that the Regional Education Officer, Seraikela had submitted a detail enquiry report contained in his letter No.53 dated 25.02.12 and during a thorough enquiry, it was found that there was no voucher for Rs.2,56,415/- against the aforesaid huge amount paid to the said late Swapan Kr. Mandal and it was recommended to adjust the said amount from the pension. 8. The learned counsel for the Accountant General reiterated its stand made in the counter affidavit and further submits that since it was the money from State Exchequer it should be compensate because admittedly it is public money of the tax payers. 9. Having heard the learned counsel for the parties and after going through the records it appears that the petitioner’s husband was allotted the work of Midday meal while he was posted in-charge of Upgrade High School Kapali and he died in harness on 02.04.2011. It has been alleged that said deceased employee withdrew Rs.2,74,600/- on different government heads which has been described in detail in letter No. 94 dated 08.02.2012 which has been annexed as Annexure 2 to the writ application. It also transpires that when the deceased employee died in harness, one Nirmal Chandra Sardar joined in the said school and reported to the authorities that no records of financial transaction of the school were handed over to him. Thereafter, an enquiry was conducted by the respondent authority and the committee was constituted and the impugned letters were issued. It also transpires that the deceased employee was not the only person responsible for the entire Midday meal rather he was only secondary and the joint disbursing authority was village working committee. The deceased employee was only the member of that committee. 10. Be that as it may, admittedly, the husband of the petitioner died on 02.04.2011 and the enquiry has been conducted after his death. There is no record to show that any departmental proceeding was drawn up by the department against the deceased before his death. Needless to say that cross-examination is the touch stone of any enquiry. 10. Be that as it may, admittedly, the husband of the petitioner died on 02.04.2011 and the enquiry has been conducted after his death. There is no record to show that any departmental proceeding was drawn up by the department against the deceased before his death. Needless to say that cross-examination is the touch stone of any enquiry. It is settled principle of law that after the death, no proceeding either criminal or departmental can be initiated and even if initiated during the life time of the delinquent employee, the same shall be abated after his death for the obvious reason that the delinquent employee is not there to put forth his defense. In this regard, reliance may be made to the order passed by the Hon'ble Supreme Court in the case of State of Jharkhand VS Uma Prasad (supra) wherein at para-4 the law has been laid down as under : “However, on consideration of the records, we find that late Birendra Prasad, the deceased was put under suspension on 26.09.1998 on the order of the Commissioner, Chhotanagar Division, Ranchi, and by another order dated 16.06.2000, his suspension was revoked. Thereafter, he died on 08.10.2004 in harness while working as an Assistant in the Secretariat, Department of Art, Culture, Sports and Youth Affairs, Jharkhand. That being the position and since the learned counsel for the respondent is unable to show us any order passed by the competent authority issuing any charge-sheet against the said deceased, there could be no recovery of any amount from the retiral benefits of the deceased Birendra Prasad. There is no record to show that any departmental proceeding was drawn up by the Department against the deceased before his death.” 11. In view of the aforesaid facts and circumstances of the case and the settled proposition of law the impugned letters as contained in Annexure-2, 3 & 5 series to the writ application are hereby quashed and set aside. The respondent authorities are directed to initiate the process of payment of balance retiral dues as well as fix the final family pension in favor of the petitioner at the earliest preferably within a period of eight weeks from the date of receipt of copy of this order.