1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 4106 of 2010 … Harihar Dubey, son of Late Tapeshwari Dubey, resident of Village- Chaneya, PO Rajhara, PS Vishrampur, District- Palamau at present resident of Hamidganj, Ward No.2, PO Hamidganj, PS- Daltonganj, District- Palamau. … Petitioner -V e r s u s- 1. The State of Jharkhand.
2. The Secretary, Forest and Environment Department, Nepal House, Ranchi, PO and PS Doranda, District-Ranchi.
3. The Conservator of Forest, West Circle, Medininagar, Palamau.
4. The Regional Chief Conservator of Forest, Palamau.
5. The Divisional Forest Officer, South Forest Division, Garhwa, PO, PS and District- Garhwa. … Respondents … PRESENT : THE HON'BLE MR JUSTICE RATNAKER BHENGRA For the Petitioner : Mr. Amresh Kr., Advocate. For the State-Respondents: Mr. Sunil Singh, JC to SC (Mines) ------- Reserved on:
08. 04/2016 Pronounced on:21 / 9/2016 … Ratnaker Bhengra, J.: In the instant writ petition, petitioner has prayed for issuance of appropriate writ(s)/ order(s)/ direction(s) from this Hon’ble Court, directing the concerned respondents to make payment of entire retiral dues including pension except G.P.F. and also to make payment of increment in salary during his service period; And/ Or any other appropriate writ/ order/ direction as this Hon’ble Court may deem fit and proper for doing conscionable justice to the petitioner.
2. Learned counsel for the petitioner has submitted that petitioner was appointed as Forest Guard on 10.9.1951 at Palamau. Petitioner had taken V.R.S. on 12.10.1971 as Forest Guard from Garhwa South Forest Division. Thereafter, the petitioner regularly approached before the concerned respondents and verbally requested the concerned respondents to make payment of the entire retiral dues and pension, as stated in paragraph1 of this writ petition, but till date no step has been taken to make payment of 2 the retiral dues in favour of the petitioner. Learned counsel for the petitioner has further submitted that petitioner had also filed for his service record to the respondents and vide memo No. 1570, dated 16.5.2008, internal correspondence had been made by the Divisional Forest Officer, Garhwa to the Forest Conservator, Daltonganj with reference to his service book and other records and a copy of his appointment letter so that his service book could be reconstructed and action could be taken for payment of his pension. 3. He has also relied upon Bihar Pension Rules, AppendixVI clause 18 and claimed that the minimum pensionable period of service as 10 years. Counsel for the petitioner has also referred to Rule 144 of Bihar Pension Rules and stated that for receiving gratuity, qualifying service period is 10 years, the pension can also be received after 10 years.
4. Learned counsel for the petitioner, in support of his contention, has relied upon a decision of this Court in the case of “Santosh Kumar Nayak versus The State of Jharkhand and others”, reported in 2006(4) JLJR 138 and submitted that in the said case, the father of the petitioner, deceasedemployee was appointed in 1945 and had gone on medical leave in 1960 and never returned from leave and died in 1970. In the said case, the deceased, having served for 15 years, the son, the petitioner, was held to be entitled for retiral benefits and family pension. Learned counsel has further submitted that in the said case there was nothing on record to show that any inquiry was conducted in regard to the absence of the deceased employee. Learned counsel has further submitted that there cannot be automatic termination of service and the employer is required to give the employee notice and principles of natural justice have to be observed when initiating any action against the employee. In the case of Santosh Kumar Nayak (supra.), the deceased, having served for 15 years, was entitled to the retiral benefits/ pension in accordance with rules. Hence, current petitioner should also similarly be given the similar benefits.
5. Counteraffidavit has been filed on behalf of the respondent Nos. 3 to 5, wherein, it is stated that the petitioner was working as Forest Guard in Garhwa South Division since 10.09.1951 till 31.12.1967. On 01.01.1968 the 3 petitioner applied for casual leave on the ground of illness of wife for five days. Thereafter, according to the petitioner, he fell ill and could not join his service. On 05.08.1968 the petitioner wrote to Divisional Forest Officer, Garhwa South Division that he will not be able to serve due to ill health and resigned his job. After no trace was found of the petitioner, lot of correspondence was done to bring back the petitioner for official duties, but all efforts remained futile and in vain in this regard and he did not turn up or respond to the official letters. Finally, the petitioner was paid his contribution towards G.P.F. account as on 24.11.1972. It is further stated that the petitioner has worked in the Forest Department on the post of Forest Guard in Garhwa South Division since 10.09.1951 till 31.12.1967. Thus the petitioner has completed only 16 years and 3 months of service. Mr. Dubeypetitioner has not fulfilled minimum qualifying years of 30 years of service or 50 years of age which was as prescribed in Bihar Service Code Rule No.74 (iii). Petitioner has requested Hon’ble High Court in this writ petition for granting him pension for which he has not fulfilled minimum required period. It is further stated that according to Rule 74 (iii) of Bihar Service Code, any person who has completed 30 years of his service or completed 50 years of age, he would be able to get retiral benefits. But petitioner has completed only 16 years and 3 months of the service ( from 10.09.1951 to 31.12.1967) and completed 40 years of age at his last service period (date of birth is 21.01.1928 and served duty up to 31.12.1967). That is why petitioner is not entitled to get retiral benefits according to law. It is further stated that according to rule 5.4 of person (of 6th Pay Commission as mentioned in F. No.38/37/08P8 PW (A) Govt. of India Min of personal public grievances petitions dated 02.09.2008) the government servants who have retired on or after 01.01.2006 but before the date of issue of this O.M. will continue to be governed by the rule/orders which were in force immediately before coming into effect of these orders.
6. Learned counsel for the Staterespondents, on the other hand, has also referred to and relied upon the case of “Kishori Mohan Ojha versus The State of Jharkhand and others”, reported in 2014 (4) JLJR 33, in which, 4 the appellant had joined on the post of Jail Doctor on 24.08.1983 and was granted casual leave on 09.10.2001 and remained absent thereafter, which was treated as unauthorized absence and therefore, he was dismissed from service. Appellant had not produced any document to justify his absence since October, 2001 and as such, he had not completed the required 20 years of service in terms of Rule 74 of the Code making him eligible for voluntary retirement. Therefore, his dismissal was upheld by the learned Division Bench. Learned counsel for the Staterespondents, has also referred to and relied upon the decision of the Hon’ble Supreme Court in the case of “Chennai Metropolitan Water Supply and Sewerage Board and others versus T.T. Murali Babu, reported in (2014) 4 Supreme Court Cases 108. In this case, respondent was unauthorizedly absent for about a year and seven months and not responded to repeated communications from the employer. He had approached the High Court with a delay of four years for challenging the dismissal order. Hon’ble Supreme Court held that when the Court is approached belatedly without adequate reasons then the dispute should not be entertained and further held that the delay of four years in approaching the High Court against the order of dismissal passed by the disciplinary authority did not deserve indulgence and that the High Court erred in entertaining the same. Hon’ble Apex Court had also held that he was unauthorizedly absent for a long period and had not responded to repeated communications from the employer, hence, punishment of dismissal was not disproportionate to the gravity of misconduct and that the High Court had erred in interfering with the quantum of punishment. 7. Having heard both counsels and after seeing the records of the case, an issue that seems to be raised is whether a 30 years service period should apply as claimed by the respondents or would a shorter 10 years service period be applicable as claimed by the petitioner. Both the State as well as the petitioner are citing certain provisions of the law, in the case of the State, as per Rule No. 74 (iii) of the Bihar/ Jharkhand Service Code which prescribes a qualifying period of 30 years, while the petitioner claims as per Appendix VI Clause 18 of the Bihar/ Jharkhand Pension Rules which 5 prescribes the minimum service years as 10 years for acquiring pension. Further, the State by citing Kishori Mohan Ojha(supra.) says in terms of Rule 74 it is 20 years, but then again the petitioner by citing Santosh Kumar Nayak (supra) says it should be 10 year.
8. The case cited by the petitioner, i.e. Santosh Kumar Nayak (supra) and his own current case has certain broad similarities. In that case though the petitioners father appointed in 1945, went on medical leave in 1960, and never returned and died in 1970, there was no enquiry conducted about abscense, and when he agitated the matter or rather his son agitated the matter in the Jharkhand High Court in 2004, he succeeded on the point that notice or principles of natural justice were not observed, therefore, there can be no automatic termination of service. Here it is pertinent to quote the relevant paragraph from Santosh Kumar Nayak (supra): “3.There is nothing on record to show that any enquiry was conducted in regard to absence of the deceased employee or he was put to notice by the Department for the alleged absence from duty. Similar provisions like Rule 76 of the Bihar Service Code have been interpreted by the Apex Court and it has been held that there is no automatic termination of service and the employer is required to put the employee to notice and principles of natural justice are required to be observed for initiating any action against the employee. It is a settled principle of law that absence from duty is a misconduct under the service jurisprudence and at least principles of natural justice are required to be observed. Nothing has been done in the present case. Assuming that the services of the deceasedemployee were to be dispensed with in the light of Rule 76 of the Bihar Service Code, the deceased having served for about 15 years was still entitled to the retiral benefits/pension in accordance with the rules. In absence of there being any enquiry or specific order terminating the services, Respondents cannot withhold the retiral/pensionary benefits as permissible under the Rules.”
9. In the case on hand also, the time line is comparable in that he was appointed on 10.09.1951 and worked till 31.12.1967 and on 01.01.1968, he applied for casual leave on the grounds of his wife's illness, and on 05.08.1968 he wrote to the Divisional Forest Officer that he will not be able to serve due to ill health and resigned his job. He was able to receive G.P.F. in 1972 though. 6 10. In this current case also, there seems, at least from the records available, in the writ petition and counteraffidavit, no notice was sent, no observation of principles of natural justice, and the termination seems automatic or simply concluded. So this case seems to have many parallels with Santosh Kumar Nayak (supra). 11. The case cited by the State i.e. Kishori Mohan Ojha (supra.) is distinguished because there departmental proceeding was initiated and he was asked to also submit reply to second showcause, so it may not be a good case for comparison, while Chennai Metropolitan Water Supply and Sewerage Board and others (supra) setting aside of punishment of dismissal where the person or respondent concerned was absent for four years. But in that too he was noticed and chargesheeted. So even this case is distinguished and not applicable. 12. In another case of S.K. Mastan Bee versus General Manager, South Central Railway and another, reported in (2003) 1 Supreme Court Cases 184 decided by the Apex Court, the husband of the petitioner had died in 1969. The wife made an application for grant of family pension in 1991 (after 23 years) which the Railways refused. Hence she was compelled to file the writ. She agitated the matter right upto the Supreme Court, wherein Hon'ble Supreme Court held:
“6. We notice that the appellant's husband was working as a Gangman who died while in service. It is on record that the appellant is an illiterate who at the time did not know of her legal right and had no access to any information as to her right to family pension and to enforce her such right. On the death of the husband of the appellant, it was obligatory for her husband's employer viz. the Railways, in this case to have computed the family pension payable to the appellant and offered the same to her without her having to make a claim or without driving her to a litigation. The very denial of her right to family pension as held by the learned single Judge as well as the Division Bench is an erroneous decision on the part of the Railways and in fact amounting to a violation of the guarantee assured to the appellant under Article 21 of the Constitution. The factum of the appellant's lack of resources to approach the legal forum timely is not disputed by the Railways...We think on the facts of this case inasmuch as it was an obligation of the Railways to have computed the family 7 pension and offered the same to the widow of its employee as soon as it became due to her and also in view of the fact that her husband was only a Gangman in the Railways who might not have left behind sufficient resources for the appellant to agitate her rights and also in view of the fact that the appellant is an illiterate, the learned Single Judge, in our opinion, was justified in granting the relief to the appellant from the date from which it became due to her, that is the date of the death of her husband. Consequently, we are of the considered opinion that the Division Bench fell in error in restricting that period to a date subsequent to 141992. ”
13. Some aspects stand out in the reasonings of the Supreme Court in the aforesaid case to the extent they seem notable and they are: (i) the station in life of the petitioner, she is illiterate and does not know of her rights, (ii) the obligation on the part of the husband's employer, or the Railways to process the retiral and family pension, and (iii) Family pension in the context of Article 21. (iv) In that case, delay in approaching for family pension was not fatal.
14. From the paragraph cited from S.K. Mastan Bee (supra) it is apparent that the family pension accrued to her on the basis of the service period of her husband, and it was a right earned by the husband for the number of years of service he worked in the organization. The current petitioner was also a forest guard, so to that extent similarly placed and hence it would be obligatory of the employer to process the pension.
15. Relying on the ruling in Santosh Kumar Nayak along with Appendix VI, clause 18 of the Bihar Pension Rules, the 10 years minimum service for acquiring pension is acceptable. In the current case, the petitioner was in service from 10.09.1951 till 31.12.1967, hence completing 16 years, 3 months of service, and Santosh Kumar Nayak's case (supra) tenure of service was about 15 years. 16. In another case, State of Jharkhand and others versus Jitendra Kumar Srivastava and another, reported in (2013) 12 Supreme Court 8 Cases 210, the Hon'ble Supreme Court observed that a person cannot be deprived of his pension without authority of law in the following terms:
16. The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognised as a right in “property”. Article 300A of the Constitution of India reads as under: “300A. Persons not to be deprived of property save by authority of law. No person shall be deprived on his property save by authority of law.” Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.” 17. Hence, basing my reasoning on the rational given in Santosh Kumar Nayak (supra), S.K. Mastan Bee (supra) and State of Jharkhand and others versus Jitendra Kumar Srivastava and another (supra) the writ petition is disposed of with the following directions: (i) The pension of his pensionable service period including any revision thereof shall be released by the respondents in favour of the petitioner within a period of three months from receipt of this order, failing which he shall be entitled to statutory interest till the actual payment is made after expiry of the aforesaid three months period. (ii) Any retiral benefits if remaining shall also be paid within the same aforesaid time and same aforesaid interest stipulation.
18. Accordingly, this writ petition is allowed and disposed of. (Ratnaker Bhengra, J.) SB/ AFR ..