THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.38941 OF 2016
AND
CONTEMPT CASE NO.847 OF 2017
COMMON ORDER
W.P.No.38941 of 2016 has been filed seeking a Writ of
Mandamus declaring the action of the respondents in not releasing the
pensionary benefits and arrears of salary which was due to the husband of the petitioner on his retirement from service on 31.12.2014, as illegal and arbitrary and to consequently direct the respondents to release the entire pension and pensionary benefits including gratuity and all other benefits, arrears of salary which was due to the husband of the petitioner, to the petitioner with interest and all consequential benefits.
2. Heard the learned counsel for the petitioner and the learned Government Pleader for Services.
3. The learned counsel for the petitioner had filed amendment of prayer in I.A.No.1 of 2019 and the same was allowed on 24.01.2020 and the claim of the petitioner was to call for the records vide proceedings W.P.No.38941 of 2016 & C.C.No.847 of 2017 2 dt.03.07.2017 and dt.09.09.2017 and to suspend the same as illegal and arbitrary.
4. Brief facts leading to the filing of the present Writ Petition are that the petitioner's husband was initially appointed as Police Constable in IV Battalion at Warangal on 30.03.1981 and had completed his period of probation satisfactorily. Subsequently, he was deputed to Prohibition and Excise Department on 01.10.1993 and was posted in Khammam District and was finally absorbed as Prohibition and Excise Constable vide proceedings bearing No.1121/2006/P & Ex/A1 dt.26.05.2009. Thereafter, he was transferred to Warangal vide proceedings, dt.06.09.2010 and he discharged his duties accordingly. The petitioner's husband came to know that his date of birth has been altered from 1956 to 1953 without his knowledge. Therefore, he submitted a representation dt.29.03.2014 to his parent department and in turn, the Additional Commandant, IV battalion, A.P.S.P., Mamnoor Lines, Warangal requested the Prohibition and Excise Superintendent to send the Service Book of the petitioner's husband for taking further action on the representation of the petitioner vide proceedings dt.07.04.2014. Subsequently, the petitioner's husband was directed to report before the W.P.No.38941 of 2016 & C.C.No.847 of 2017 3 SHO, Prohibition and Excise Station, Gudur, by proceedings dt.09.05.2014 and accordingly, he joined at Gudur on 10.05.2014, but the salary and other allowances were not paid to him even till his retirement date. It is submitted that though the petitioner was shown due to retire on 31.12.2014 by the proceedings of the 3rd respondent in Rc.No.1368/2011/P&E/A1, dt.15.04.2014, but no retirement proceedings have been issued to him and he was allowed to continue in service till 31.12.2014. Thereafter, after retirement, when the pension and other retirement benefits were not released to him, he filed a representation dt.16.02.2015 for release of salary and other retirement benefits. But, the same were not paid. Meanwhile, the petitioner's husband died on 30.11.2015. Therefore, the petitioner has filed this Writ Petition.
5. This Court, vide orders dt.28.11.2016 in W.P.M.P.No.47989 of 2016, directed the respondents to consider releasing of pension and other benefits and also arrears of the salary to the petitioner which are due to her on the death of her husband within a period of four weeks from the date of receipt of a copy of the order and communicate their decision thereon to the petitioner.
W.P.No.38941 of 2016 & C.C.No.847 of 2017 4
6. Thereafter, the petitioner filed C.C.No.847 of 2017 against the respondents for non-implementation of the above orders dt.28.11.2016.
7. The respondents thereafter passed orders dt.03.07.2017 directing the District Audit Officer to sanction the family pension with effect from 01.01.2009 which is the due date of retirement, if his date of birth is taken as 19.12.1950 and also to recover an amount of Rs.18,06,030/- from the pensionary benefits of the petitioner's husband by taking the period of service of the employee only up to 2009 by adopting the date of birth of the deceased employee as 19.12.1950.
8. Subsequently, another order dt.09.09.2017 has also been passed for recover of an amount of Rs.18,06,030/- from the pensionary benefits of the petitioner's husband and sanction pension amount from 01.01.2009 to 30.11.2015 and to release the gratuity after recovery of the above amount from the petitioner. These two orders have been challenged by the petitioner in the present Writ Petition by filing the amendment petition which has been ordered as noted above.
W.P.No.38941 of 2016 & C.C.No.847 of 2017 5
9. Learned counsel for the petitioner, Sri K. Arvind Kumar, submits that the respondents have not initiated any disciplinary proceedings either during the service or after this retirement of the petitioner's husband and therefore, any disciplinary proceedings which are initiated against the petitioner's husband after his retirement or after his death got abated on his death and therefore, the respondents could not have withheld the sum of Rs.18,06,030/- from the pensionary benefits of the deceased employee.
10. The learned Government Pleader, however, supported the averments made in the counter affidavit filed in C.C.No.847 of 2017 and submitted that the petitioner's husband, the employee, himself confessed about altering his date of birth in his service book from 1950 to 1956 and therefore, it is a clear case of fraud played by him and the pecuniary loss caused to the Department can be recovered from the pensionary benefits of the employee as per G.O.Rt.No.1097, Finance & Planning (FW.PEN.I) Department, dt.22.06.2000. The learned Government Pleader placed particular reliance upon Para 4 of the said Government Order. She further submitted that since the employee himself had W.P.No.38941 of 2016 & C.C.No.847 of 2017 6 confessed about altering of his date of birth, Para 4 of G.O.Rt.No.1097 would apply and in accordance therewith, the respondents are entitled to recover the pecuniary loss caused to the respondents because of the fraud committed by the employee.
11. The learned counsel for the petitioner, on the other hand, placed reliance on a Judgment of the Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others1 for the proposition that recovery from the employee's pensionary benefits is not permissible in law in the circumstances mentioned therein. According to the petitioner, this case also falls in one of the exemptions as enumerated in the above Judgment of the Hon'ble Supreme Court (1 supra). He also placed reliance upon the Judgment of a Division Bench of this Court dt.29.09.2008 in W.P.No.21465 of 2008 for the proposition that the disciplinary proceedings would abate on the death of the delinquent employee.
12. Learned Government Pleader relied upon a judgment of the Gujarat High Court in the case of Pineshbhal Amrutlal Patel Vs. 1 (2015) 4 SCC 334 W.P.No.38941 of 2016 & C.C.No.847 of 2017 7 Education Officer and 2 others2 for the proposition that when the accused has accepted his guilt before the authorities, no further procedure was required to be followed.
13. Having regard to the rival contentions and the material on record, it is noticed that in the counter affidavit, the respondents admitted to the fact that the petitioner's husband was allowed to work up to 31.12.2014 and even though they have stopped paying salary from 01.01.2014, no action has been initiated against him till the date of his retirement on 31.12.2014 or thereafter. The respondents stated that they have conducted a detailed enquiry during which the petitioner's husband had admitted to tampering of his date of birth in his service book, and in support of this contention, a copy of the handwritten note of the petitioner's husband dt.27.10.2014 is produced. However, in the said letter, it is mentioned that the date of birth is changed from 19.12.1953 to 19.12.1956. If the letter were to be considered to be true and correct, then the date of birth mentioned therein, i.e., 19.12.1953 would have to be considered and not 19.12.1950. However, as per the school 2 2017 (2) GLR 1627 W.P.No.38941 of 2016 & C.C.No.847 of 2017 8 certificates of the petitioner's husband, obtained by the respondents, his date of birth is mentioned as 19.12.1950. But, before the petitioner's husband could be confronted with these documents, he died and therefore, the disciplinary proceedings could not have been continued and thus abated. The respondents cannot proceed against the legal heirs of the deceased employee to prove his actual date of birth. Since, admittedly, the petitioner's husband worked till 31.12.2014, he is entitled to the salary till 31.12.2014 and other retirement benefits till the date of his death and thereafter, the petitioner is eligible for family pension.
14. In view thereof, the impugned orders dt.03.07.2017 and 09.09.2017 are set aside and the respondents are directed to pay the salary of the petitioner's husband from 01.01.2014 to 31.12.2014 and also all the pensionary benefits including gratuity with interest @ 6% per annum till the date of payment. The entire amount shall be paid within a period of three (3) months from the date of receipt of a copy of this order.
15. Accordingly, this Writ Petition is allowed.
W.P.No.38941 of 2016 & C.C.No.847 of 2017 9
16. In view of the above orders, the Contempt Case is also closed.
17. Pending miscellaneous petitions, if any, in the Writ Petition and the Contempt Case shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 11.10.2022 ?/Svv