Pranjali Choudhury vs The State Of Assam And 7Ors
2021 Latest Caselaw 621 Gua

                                                                  Page No.# 1/9

GAHC010144612017




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/6328/2017

         PRANJALI CHOUDHURY
         W/O LATE AMBIKA CHOUDHURY, R/O VILL- NIZ JULUKI, PO and PS-
         BARAMA, DIST. BAKSA BTAD ASSAM



         VERSUS

         THE STATE OF ASSAM AND 7ORS
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
         SOIL CONSERVATION DEPTT, GUWAHATI-6

         2:THE DEPUTY SECRETARY
         TO THE GOVT. OF ASSAM
          SOIL CONSERVATION DEPTT.
          GUWAHATI-6

         3:THE DIRECTOR

          SOIL CONSERVATION
          ASSAM
          BHUMI SANGRAKSHAN BHAWAN
          R.G. BARUAH ROAD
          GUWAHATI-5

         4:THE ADDL. DIRECTOR
          SOIL CONSERVATION
          HILLS KARBIANGLONG AUTONOMOUS COUNCIL
          DIPHU
         ASSAM

         5:THE DIRECTOR
          SOIL CONSERVATION
          KOKRAJHAR
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              ASSAM

              6:THE ACCOUNTANT GENERAL
              ASSAM
               BELTOLA
               MAIDAMGAON
               GUWAHATI-29

              7:THE DIRECTOR OF PENSIONS
              ASSAM
               HOUSEFED COMPLEX
               LAST GATE
               DISPUR
               GUWAHATI-6

              8:THE TREASURY OFFICER

              KOKRAJHAR
              PO and DIST. KOKRAJHAR
              ASSA

Advocate for the Petitioner    : MR.B ISLAM

Advocate for the Respondent : GA, ASSAM

BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

JUDGMENT & ORDER (ORAL) Date : 23-02-2021

This writ petition under Article 226 of the Constitution of India is preferred by the petitioner seeking a direction to the respondents to release the family pension and other admissible retirement benefits by updating the service book of the deceased husband of the petitioner till his retirement on 28.02.2012.

2. The petitioner is the wife of one Ambika Choudhury, since deceased. Ambika Choudhury was initially appointed as a Soil Conservation Demonstrator (Junior) under the Directorate of Soil Conservation, Assam on 25.01.1977. After joining as Soil Conservator Demonstrator (Junior), Ambika Choudhury continued to render his services under the Directorate of Soil Conservation. During the Page No.# 3/9

course of service tenure, he was promoted to the post of Soil Conservation Ranger (SCR) as per a notification dated 14.06.2004. In the year 2010 when he was serving as a Soil Conservation Ranger (SCR) under the Divisional Officer, Kokrajhar Soil Conservation Division, BTC, Kokrajhar, he was promoted to the post of Assistant Soil Conservation Officer (ASCO) vide a notification bearing no. Soil.172/2008/33 dated 20.11.2010 and he was transferred to and posted at Hamren Soil Conservation Division, Hamren under Karbi Anglong Autonomous Council. In view of the said order of promotion and transfer, Ambika Choudhury was released from Kokrajhar Soil Conservation Division on and from 31.12.2010.

2.1. It transpires from the communication bearing No. HRN/Est-2/2015-16/70 dated 25.04.2015 (Annexure-C to the affidavit-in-opposition) that he took over charge of Assistant Soil Conservation Officer (ASCO), Hamren Soil Conservation Division, Hamren on 24.02.2012 pursuant to an acceptance order no. KAAC/Esstt.-55/P(B)/89-90/74 dated 23.02.2012 issued by the competent authority in the Karbi Anglong Autonomous Council. After joining in the post of Assistant Soil Conservation Officer (ASCO) in the Hamren Soil Conservation Division, Hamren on 24.02.2012, Ambika Choudhury retired from his service on 28.02.2012 on reaching the age of superannuation as his date of birth as per the service book was 01.03.1951.

2.2. After his superannuation, Ambika Choudhury expired on 16.01.2015 leaving his wife and two sons as legal heirs as per the certificate dated 20.04.2017 (Annexure-8 to the writ petition) issued by the office of the Deputy Commissioner, Baksa. Despite his superannuation in the year 2012, no pensionary benefits and arrear salaries were released to deceased husband of the petitioner.

2.3. After the death of her husband, the petitioner stated to have pursuad with the respondent authorities for release of the pensionary benefits as well as the arrear salaries, but no positive action was found to have taken at the end of the respondent authorities. Aggrieved thereby, the petitioner has approached this Court seeking the reliefs, as mentioned above.

3. Heard Mr. B. Islam, learned counsel for the petitioner. Also heard Mr. B. Gogoi, learned Standing Counsel, Soil Conservation Department and Finance Department appearing for respondent nos. 1, 2, 3 and 8; Mr. P. Nayak, learned counsel for the respondent no. 5; Mr. C. Baruah, learned Page No.# 4/9

Standing Counsel, Accountant General (A&E), Assam for respondent no. 6; and Mr. G. Pegu, learned Junior Government Advocate for respondent no. 7. None has appeared for respondent no. 4.

4. It is the contention of the petitioner that the deceased husband of the petitioner was a member of Group Insurance Scheme w.e.f. 01.04.1983. When the deceased husband of the petitioner retired from his service on reaching the age of superannuation of 60 years on 28.02.2012, there was no disciplinary proceeding pending against him. It is submitted that a stand has been taken on behalf of the respondents to the effect that the service book maintained in respect of the service career of the deceased husband of the petitioner did not contain details for the period from 01.01.2011 to 24.02.2012.

4.1. Learned counsel for the petitioner has submitted that the service book of the deceased husband of the petitioner used to be maintained by his employer and it is for them to examine and to find out the reason why the service book was not maintained properly and updated during the period from 01.01.2011 to 24.02.2012. It is his submission that the petitioner was promoted and transferred by a notification dated 20.11.2010 and thereafter, he was released from the Kokrajhar Soil Conservation Division on 31.12.2010. One possible reason for the deceased husband of the petitioner for his delayed joining in the Hamren Soil Conservation Division on 24.02.2012 could be that the competent authority in the Karbi Anglong Autonomous Council had accepted the posting of the deceased husband of the petitioner only on 23.02.2012. If such was the reason, there was no fault on the part of the deceased husband of the petitioner for such delayed joining on 24.02.2012 as after the acceptance order of the Karbi Anglong Autonomous Council on 23.02.2012 he immediately joined at the Hamren Soil Conservation Division on 24.02.2012.

4.2. He has submitted that as per a notification dated 25.09.1996, 'Soil Conservation' is a transferred subject/department and the executive powers of the State of Assam had since been delegated to the Karbi Anglong Autonomous Council (KAAC). He has referred to an Office Memorandum dated 31.12.1996 issued by the Government of Assam in the Hill Areas Department. As per Clause (H) of the Office Memorendum, the State Government is required to consult the Karbi Anglong Autonomous Council while posting and transferring the officers of the entrusted subjects/departments in or out of the Council. Before deputing any officer or staff the State Page No.# 5/9

Government shall have to provide a panel of names to enable the Council to select and accept the same. Unless the posting and transfer of an officer is accepted by the competent authority in the Karbi Anglong Autonomous Council, it is difficult for a State Government employee like the deceased husband of the petitioner to join in a post falling within the jurisdiction of the Karbi Anglong Autonomous Council in relation to a transferred/entrusted subject. He has further submitted that it appears from the correspondences of the respondent authorities that during the period from 01.01.2011 to 24.12.2012, the service book of the husband of the petitioner was not updated. It is for the respondent authorities to examine the real reason behind such non-inclusion of entries in the service book for the aforesaid period. He has further submitted that since the husband of the petitioner was made to retire on reaching the age of superannuation w.e.f. 28.02.2012 and no disciplinary proceeding alleging any kind of misconduct was initiated till his death on 16.01.2015, there is no reason for denial of the pensionary benefit and arrear salaries for the aforesaid period in respect of the husband of the petitioner to the petitioner, she being the wife.

5. Mr. Gogoi, learned Standing Counsel, Soil Conservation Department and Finance Department appearing for respondent nos. 1, 2, 3 and 8 has submitted that as the service book did not contain entries during the period from 01.01.2011 to 24.02.2012, the matter of pension till death of the husband of the petitioner on 16.01.2015 and thereafter, family pension to the petitioner could not be finalized. He has, however, admitted that from the correspondences exchanged between the parties, it does not appear that any disciplinary proceeding was initiated against the husband of the petitioner till his death on 16.01.2015. In the absence of the entries for the aforesaid period, it is a matter which requires examination at the end of the respondent authorities. He has submitted that the contentions raised on behalf of the petitioner appears to be a relevant consideration which requires further examination at the end of the respondent authorities. He has submitted that on 22.01.2018, the Director of Soil Conservation, Assam forwarded the service book and other relevant documents to the Divisional Officer, Hamren Soil Conservation Division, Hamren and requested him to re-submit the pension proposal of the deceased husband of the petitioner duly filled up for submission to the office of the Accountant General (A&E), Assam.

6. Upon Consideration of the submissions of the learned counsel for the parties and on perusal of the documents submitted by the parties through their pleadings, it has emerged that the only dispute that has stalled the processing and finalization of the pension proposal in respect of the deceased Page No.# 6/9

husband of the petitioner, Late Ambika Choudhury and/or the family pension after his death on 16.01.2015, in favour of the petitioner is due to non-updation of the entries in the service book of Late Ambika Choudhury for the period from 01.11.2012 to 24.02.2012. The responsibility of maintenance and updation of entries in a service book of an employee of the State Government rests on the employer which in the instant case is the Soil Conservation Department. As it has emerged that when the deceased husband of the petitioner retired from service on 28.02.2012 on reaching the age of superannuation, there neither any penalty imposed upon him pursuant to any disciplinary proceeding nor was any disciplinary proceeding pending against him. When the deceased husband of the petitioner retired on 28.02.2012, there was also nothing to show that any criminal proceeding was pending against him.

7. The service book contains two entries at the end regarding Ambika Choudhury's release from the Kokrajhar Soil Conservation Division on and from 31.12.2010 and joining in the Hamren Soil Conservation Division on 24.02.2012. In the service book of Ambika Choudhury, it was duly noted by the Divisional Officer, Kokrajhar Soil Conservation Division on 31.12.2010 after verifying service period up to 31.12.2010, that Ambika Choudhury was released on 31.12.2010 pursuant to the Government notification dated 20.11.2010. It has further emerged from the entry recorded by the Divisional Officer, Hamren Soil Conservation Division in the service book that after acceptance was accorded by the competent authority in the Karbi Anglong Autonomous Council from 23.02.2012, the deceased husband of the petitioner joined the post of Assistant Soil Conservation Officer (ASCO) at Hamren on 24.02.2012 and thereafter, he retired on superannuation on 28.02.2012.

8. The Divisional Officer, Hamren Soil Conservation Division by his communication dated 09.07.2015 requested the Divisional Officer, Kokrajhar Soil Conservation Division to provide him information proposal about the period from 01.01.2011 to 24.12.2012 so as to regularize the pension proposal of Ambika Choudhury. The Divisional Officer, Kokrajhar Soil Conservation, BTC in his communication dated 14.08.2015 had, on the other hand, requested the Divisional Officer, Hamren Soil Conservation Division, Hamren to regularize the period from 01.01.2011 to 24.02.2012 by grant of any kind of leave, etc. The Director of Soil Conservation, Assam by his letter dated 22.12.2017, requested the petitioner to furnish all the necessary documents for further processing for submission of the pension papers. Accordingly, the petitioner had submitted requisite papers available at her disposal to the Director of Soil Conservation, Assam on 09.01.2018.

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9. This Court finds some force in the submission of the learned counsel for the petitioner that the period from 01.01.2011 to 24.02.2012 could be relatable to the executive power delegated to the Karbi Anglong Autonomous Council pursuant to the Office Memorandum dated 31.12.1996. By the Office Memorandum dated 31.12.1996, the Governor of Assam had entrusted and delegated the functions relating to thirty subjects/departments including 'Soil Conservation', to which the executive powers of the State Government extended, to the Karbi Anglong Autonomous Council. The said Office Memorandum came to be issued pursuant to a Memorandum of Understanding reached on 01.04.1995, which was adopted and approved by the Assam Legislative Assembly on 12.04.1995.

10. A number of administrative changes and modalities had been adopted for observance by the State Government and the Karbi Anglong Autonomous Council for management of the transferred/entrusted subjects. One of the modalities and administrative changes incorporated in Clause (H) reads as under :-

(H) The State Government shall consult the Council, while posting and transferring the Officers of the entrusted subjects/departments in or out of the Council. Under no circumstances, the officers and staff not released by the Council shall be accepted by the State Government. Before deputing any Officer or staff the Government shall provide a panel of names, enabling the Council to select and accept the same. The State Government shall take necessary action under the relevant Rules and procedure against the officers and staff, found involved in any prima-facie case of misconduct/dereliction of duty etc. during the period of deputation to the Council even after they are repatriated to the State Government.

11. From the above modalities and administrative changes made between the State Government and the Karbi Anglong Autonomous Council, it is evident that if a State Government employee working in any of the department which comes under the purview of subjects transferred/entrusted to the Karbi Anglong Autonomous Council, is transferred to the Council areas it is not open for him to join unilaterally in the post where he has been transferred unless and until the competent authority in the Karbi Anglong Autonomous Council accepts such transfer and posting.

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12. It is settled that unauthorized absence could be an act of indiscipline. The Hon'ble Supreme Court of India in State of Punjab vs. Dr. P.L. Singla, reported in (2008) 8 SCC 469, has observed that whenever there is an unauthorized absence by an employee, two courses are open to the employer. The first is to condone the unauthorized absence by accepting the explanation and sanctioning leave for the period of the unauthorized absence in which event the misconduct stands condoned. The second is to treat the unauthorized absence as a misconduct, hold an enquiry and impose a punishment for the misconduct. An employ who remains unauthorizedly absent for some period, on reporting back to duty, may apply for condonation of the absence by offering an explanation for such unauthorized absence and seek grant of leave for that period. If the employer is satisfied that there was sufficient cause or justification for the unauthorized absence, the employer may condone the act of indiscipline and sanction leave post facto. If leave is so sanctioned and the unauthorized absence is condoned, it will not be open to the employer to thereafter initiate disciplinary proceeding in regard to the said misconduct unless it had, while sanctioning leave, reserved the right to take disciplinary action in regard to the act of indiscipline.

13. Reverting back to the facts of the case, the husband of the petitioner expired on 16.01.2015 after having retired from service on 28.02.2012 on reaching the age of superannuation. Thus, it is no longer open for the State respondent authorities to initiate any kind of disciplinary proceeding in respect of the period from 01.01.2011 to 24.02.2012 to reach a finding that the deceased employee was unauthorizedly absent during the said period and it was an act of indiscipline and as such, an act of misconduct. As it appears, the State respondent authorities did not act to initiate any disciplinary proceeding when Ambika Choudhury was alive. From the correspondences exchanged amongst the State respondent authorities, it is evident that it is not the case of the respondent authorities in the Soil Conservation Department that during the period from 01.01.2011 to 24.02.2012, the husband of the petitioner was unauthorizedly absent. It is, therefore, incumbent on the part of the State respondent authorities to find out the cause for non-updation of the entries in the service book of Late Ambika Choudhury during the period from 01.01.2011 to 24.02.2012 and while doing so, the aspect regarding inability of a State Government employee to join in a post within Karbi Anglong Autonomous Council areas unilaterally in respect of any transferred/entrusted subject without the acceptance of the Council is needed to be looked into.

14. Pension is a right and the payment of it does not depend upon the discretion of the Page No.# 9/9

Government but it is governed by the rules and a government servant coming within the said rules is entitled to claim pension. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the employee not because of any such order but by virtue of the rules. In the present case, the matters of pension in the case of the husband of the petitioner and the family pension in the case of the petitioner are governed and regulated by the Assam Services (Pension) Rules, 1969.

15. In the light of the above discussion, this Court is of the considered view that the only course open for the State respondent authorities is to consider and regularize the period from 01.01.2011 to 24.02.2012 in accordance with the rules in force. This Court is also of the view that the respondent authorities shall process and finalize the matter of pension and other pensionary benefits including arrear salaries till the death of the husband of the petitioner and the family pension in respect of the petitioner thereafter in accordance with the provisions of the Assam Services (Pension) Rules, 1969 and other rules and regulations in force and it is accordingly directed. The entire exercise of processing and finalizing the matter of disbursement of the pension and family pension as well as other admissible pensionary benefits including arrear salaries shall be completed within a period of 3 (three) months from the date of receipt of a certified copy of this order.

16. With the observations made and directions given above, this writ petition stands disposed of. No cost.

JUDGE

Comparing Assistant