Court No. - 62
Case :- WRIT - A No. - 49517 of 2003 Petitioner :- Daya Nand Pandey Respondent :- State Of U.P. And Others Counsel for Petitioner :- Alok Kumar,Ashutosh Shukla Counsel for Respondent :- C.S.C.
Hon'ble Rajiv Joshi,J.
Heard learned counsel for petitioner and learned Standing counsel for State-respondents. Perused the record.
Since the pleadings have been exchanged between the parties, therefore, with the consent of learned counsel for the parties, the present petition is being disposed of finally at the admission stage itself in terms of the Rule of the Court.
By this writ petition under Article 226 of the Constitution, petitioner - Daya Nand Pandey seeks issuance of a writ in the nature of mandamus commanding the respondents to pay his wages with effect from 25.7.1992 till the age of his superannuation along with all retrial benefits.
During the pendency of the writ petition, petitioner - Daya Nand Pandey died on 30.5.2004, consequently, his widow Smt. Kamlawati Devi was substituted as his legal representative vide Court order dated 5.9.2007. Thereafter, the writ petition was also amended pursuant to Court order dated 18.2.2014 and the amended relief reads as under:
"(iv) issue a writ, order or direction in the nature of mandamus commanding the respondents to pay the arrears of the wages of the petitioner from 25.7.1992 till the age of superannuation and pay the all retiral benefits along with family pension."
Case of the petitioner is that he joined his services on 24.12.1962 as Seech Pal at Khajuri Branch, Construction Division, Deoria. Subsequently, he was transferred from Flood Division-I, Basti to Irrigation Division-I, Gorakhpur on his request vide order dated 30.6.1992. Pursuant to the said transfer order, he was relieved on 24.7.1992 from of the office of Executive Engineer (Gandak), Flood Division-I, Basti. Thereafter, he approached the office of respondent No. 3 Superintending Engineer (Gandak), Sichai Karya Mandal-I, Gorakhpur, but the official of respondent No.
3 refused to accept his joining. It is stated that thereafter, the respondent No. 2- Chief Engineer (Gandak) Irrigation Department, Gorakhpur modified the earlier transfer order dated 30.6.1992, directing the petitioner to join at Basti. But he was not permitted to join at Basti. The petitioner also states to have made representations to the authorities concerned raising his grievance, but nothing was done till 28.2.2002 when he attained the age of superannuation and hence, the present petition.
A counter affidavit dated 5.8.2006 has been filed on behalf of respondents, wherein in paragraph No. 18, it is stated that the petitioner was relieved from Basti on 24.7.1992 and thereafter in order to fill up the quota of reserved category, the vacant post of Seech Pal, was filled up by promotion. Apart from that nothing has been said in the counter affidavit. A supplementary counter affidavit dated 3rd March, 2014 on behalf of respondent has also been filed, in which, it is stated that the petitioner was initially appointed on 14.12.1970 on the post of Seech Pal and he continued in service till 24.7.1992 when he was relieved pursuant to transfer order dated 30.6.1992, directing him to join the post of Seech Paryavekchak in the office of Chief Engineer (Gandak), Irrigation Department, Gorakhpur but despite the relieving order, he neither reported his joining in the office of Executive Officer, Flood Works Department nor he returned back to report for duty at Basti and thus he remained unauthorizedly absent till 28.2.2002 i.e. the date of his superannuation. It is further stated in the supplementary counter affidavit that petitioner was superannuated by the competent authority in absentia but no order in this regard has been brought on record.
In paragraph No. 12 of the supplementary counter affidavit, it is further stated on behalf of respondents that since the petitioner had not reported his joining after 24.7.1992 till he attained age of superannuation nor he discharged any duty in the department at his own accord, as such he is not entitled to any relief. In support of their contention, the respondents have also quoted Regulation 420 and 422 of the Civil Service Regulations in the said paragraph of suppl. counter affidavit, which reads as under:
"420. an interruption in the service of an officer entails forfeiture of his past service, except in the following cases:
(a) authorized leave of absence.
(b) unauthorized absence in continuation of authorized leave of absence so long as the office of the absentee is not substantively filled; if his office is substantively filled the past service of the absentee is forfeited.
(c) suspension immediately followed by reinstatement which need not be to the same office.
(d) abolition of office or loss of appointment owing to reduction of establishment.
(e) transfer to non-qualifying service in an establishment under government control, the transfer must be made by competent authority; an officer who voluntarily resigns qualifying service cannot claim the benefit of this exception. Transfer to a grant-in-aid school entails forfeiture.
(f) not printed.
(g) time occupied in transit from the one appointment to another provided that the officer is transferred under the orders of the competent authority, or if he is non-gazetted officer with the consent of the head of his old office.
421. The authority who sanctions the pension may commute retrospectively periods of absence without leave into leave without allowances.
"422. Interruptions in service either between to spells of permanent and temporary service or between a spell of temporary and permanent service or vice versa may be condoned by the Pension Sanctioning Authority subject to the following conditions, namely—
(1) the interruptions should have been caused by reasons beyond the control of the government servant concerned;
(2) Service preceding the interruptions should not be less than of five year's duration, and in cases where there are two or more such interruption, the total service, pensionary benefits in respect of which will be lost if the interruption are not condoned should not be less than five years, and
(3) Interruptions should not be more than of one year's duration and in cases where there are two or more such interruptions the total period of interruptions sought to be condoned, should not exceed one year."
In the facts and circumstances of the case and in light of the said regulation, it is submitted on behalf of the respondents that services rendered by the petitioner in the department w.e.f. 14.12.1970 till 8.5.1992, only are to be counted for the payment of retiral benefits and not thereafter. It is further submitted that widow of the deceased employee is entitled to get the pension for the period w.e.f. 1.3.2002 to 30.5.2004 i.e. the date of death of deceased employee and thereafter she is entitled for family pension. Counter affidavit further contains the fact that amount of G.P.F. and G.I.S. has already been paid to the widow and nothing remains to be paid except the pension and family pension. In this regard, it is next submitted that till date widow of the deceased employee has not completed the formalities for the benefit of pension and family pension payable w.e.f. 1.6.2004. According to the respondents, since there is no fault on the part of the respondents in regard to payment of retiral benefit to the widow of deceased employee, therefore, the department cannot be saddled with the liability to pay any interest. It is further stated in the supplementary counter affidavit that since the deceased petitioner had not worked in the department after 8.5.1992 to 28.2.2002, therefore, applying the principle "No work, No pay", the petitioner- widow is not entitled for arrears of salary of her deceased husband for the aforesaid period of his unauthorized absence from duty which has not been sanctioned/condoned by competent authority of the department.
After hearing the submissions advanced by learned counsel for the parties and upon perusal of the material on record, I find that parties are raising rival claims in their respective affidavits. On the one hand, the petitioner claims his initial joining on 24.12.1962 whereas according to respondents as per paragraph 6 of the counter affidavit, he was initially appointed on 14.12.1970. The pension/family pension is to be determined on the basis of total length of service. Admittedly, no order considering the claim of the widow of the petitioner has been passed in black and white so far. Thus, disputed questions of fact are involved in the present case which require a finding of fact to be recorded by the Court. Such exercise is not feasible while exercising extraordinary powers under Article 226 of the Constitution of India.
In the facts and circumstances of the case coupled with the fact that respondents have taken a stand that because of non completion of necessary formalities by the widow, the payment of pension/family pension could not be made, in the considered opinion of this Court, the ends of justice would be subserved by permitting the petitioner -widow of deceased employee, to make a representation regarding her grievance alongwith a certified copy of this order, before respondent no. 2- Chief Engineer (Gandak), Irrigation Department, Gorakhpur, within a period of one month from today, which shall be considered and decided by respondent no. 2 in accordance with law expeditiously positively within three months from the date of its receipt by a speaking and reasoned order. Respondent no. 2 shall also ensure that formalities regarding payment of pension/family pension are completed within the same period.
With the above observations, the writ petition stands finally disposed of. No order as to costs.
Order Date :- 26.2.2018 Akbar