On The Death Of Rabindra Nath ... vs The State Of Assam And 3 Ors
2021 Latest Caselaw 645 Gua

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GAHC010227682014




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

                               Case No. : WP(C)/6212/2014

            ON THE DEATH OF RABINDRA NATH PATANGIA HIS LEGAL HEIR SMT.
            BINA PATANGIA
            W/O LT. RABINDRA NATH PATANGIA, R/O KALIBARI, B.S. ROAD, TEZPUR,
            PIN 784001



            VERSUS

            THE STATE OF ASSAM AND 3 ORS
            REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM,
            EDUCATION DEPTT., DISPUR, GHY- 6.

            2:DIRECTOR

             SECONDARY EDUCATION
             GOVT. OF ASSAM
             KAHILIPARA.

            3:INSPECTOR OF SCHOOLS

             SONITPUR DISTRICT CIRCLE.

            4:THE PRINCIPAL

            TEZPUR ACADEMY HS. SCHOOL
            TEZPUR
            ASSAM

Advocate for the Petitioner   : MR. R C SAIKIA

Advocate for the Respondent : MR. C BHATTACHARJEE (SC, SECONDARY EDU. DEPT.)
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                                      BEFORE
                 HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                            JUDGMENT

Date : 24-02-2021

Heard Mr. R.C. Saikia, learned counsel for the petitioner. Also heard Mr. R. Mazumder, learned counsel for the Secondary Education Department.

2. Notice had been served on the respondent No.4 being the Principal of Tezpur Academy Higher Secondary School, Tezpur. But none appears for the respondent No.4. Considering it is a matter of 2014, we deem it appropriate to proceed with the hearing of the matter in the absence of the respondent No.4.

3. We have taken note of that the petition was instituted by Rabindra Nath Patangia claiming pensionary benefits for the services he had rendered during his service period. Rabindra Nath Patangia died on 08.11.2019 and on his death the present petitioner Smti. Bina Patangia has been substituted, being the legal heir of deceased Rabindra Nath Patangia. As it is a claim for pensionary benefit, the right to sue and to be sued of the deceased Rabindra Nath Patangia survived and therefore, we now take up the writ petition on behalf of Smti. Bina Patangia who is the legal heir of the deceased Rabindra Nath Patangia.

4. Rabindra Nath Patangia was appointed as a Lower Division Assistant in the respondent Tezpur Academy Higher Secondary School, Tezpur in the year 1970 and he was promoted as UDA in the year 1974. On an allegation of misappropriation of an amount of Rs.1250, an FIR was lodged against the deceased by the Tezpur Academy Higher Secondary School, Tezpur in the Court of the Chief Judicial Magistrate, Tezpur under Section 488/477(A) IPC. In the trial, Rabindra Nath Patangia was sentenced to under Simple Imprisonment of one year and to pay a fine of Rs.500/- for the offence under Section 408 and a further Simple Imprisonment of 6 months and a fine of Rs.300/- in the default thereof for the offence under Section 477(A). On an appeal being carried before the Additional Sessions Judge, Sonitpur, the conviction was retained but the sentence were interfered. Be that as it may, in connection with the said alleged offence against the Rabindra Nath Patangia, he was also placed under suspension in the year 1974. The deceased Rabindra Nath Patangia continued to remain suspended for the entire period of his service career till his date of superannuation on 31.01.2011. We also take note of that in the year 1974 when the deceased Rabindra Nath Patangia was placed under suspension, the respondent No.4 was at that relevant point of time an institute under the deficit- grants-in-aid.

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5. The Assam Secondary Education (Provincialisation) Act, 1977 (in short Act of 1977) was enacted providing for provincialisation of secondary education covered by the deficit scheme of the Govt. of Assam. The respondent No.4 being a school under the deficit scheme of the Govt. of Assam also stood provincialized by the Act of 1977, which received the assent of the Governor on 12.10.1977 and came into force from 01.10.1977. The implication of the Act of 1977 in respect of the respondent No.4 school was that the said school was provincialised w.e.f. 01.10.1977. Section 3 of the Act of 1977 is extracted as below:

"3.Employees to be Government servants-Subject to the provision of Article 30 of the Constitution of India, on and from the appointed day all employees of all secondary schools in State of Assam shall be deemed to have become employees of the State Government of Assam with effect from the date of appointment on the following terms and conditions:-

(1) All rules including service rules and rules of conducts and discipline which are applicable to Government servant of corresponding ranks shall be applicable to all employees;

2) All employees shall get such emoluments as salary and allowances as may be prescribed;

Provided that no employee shall get as emoluments any amount which is less than the amount he was getting immediately before the appointed day.

3) Services of all the employees shall be encadred in appropriate cadres in accordance with the rules framed by the State Government for this purpose.

4) The inter-se seniority of the employees of a cadre or class shall be determined on the basis of principles laid down in the rules framed under this Act."

6. A reading of Section 3 of the Act of 1977 shows that on and from the appointed date i.e. 01.10.1977 all employees of all secondary schools in the State of Assam were deemed to have become employees of the State Government w.e.f. the date of their appointment on the terms and conditions as stated therein. By operation of law under Section 3 of the Act of 1977, even the service of the deceased Rabindra Nath Patangia stood provincialized. In other words on and from the appointed date i.e. 01.10.1977 the deceased Rabindra Nath Patangia by operation of law became an employee of the Govt. of Assam, although the earlier order by which he was under suspension remained in force. The legal implication of an employee being placed under suspension would mean that the employee-employer relationship does not cease to have its effect and all that the order of Page No.# 4/5

suspension would imply is that the employee concerned is prohibited from performing his regular duties under the employment. The order of suspension unless revoked can remain in force till the date an employee retired from service upon attaining superannuation.

7. In the instant case, the deceased Rabindra Nath Patangia had attained the date of superannuation on 31.01.2011 meaning thereby that as the order of suspension which was imposed in the year 1974 was not revoked he continued to remain under suspension up to 31.01.2011. The employee-employer relationship continued to survive all along and by virtue of the operation of law under Section 3 of the Act of 1977 he became an employee of the Govt. of Assam and continued to remain so. As the order of suspension cannot survive beyond the date of superannuation, therefore, it has to be understood that on 31.01.2011 the deceased Rabindra Nath Patangia retired from service as a regular employee of the respondent No.4 as well as that of the Govt. of Assam upon his services being provincialized by operation of law on and from 01.10.1977. On the date when the deceased Rabindra Nath Patangia retired from service, a departmental proceeding was still being continued against him. Had the departmental proceeding been further carried forward under the provisions of Rule 21 of the Assam Services Pension Rules, 1969, the respondent authorities would have the opportunity to bring the same to its logical end, but the records reveal that the departmental proceeding which was initiated against the deceased was never completed. In other words we have to understand that at the time of his death, there was no penalty that had been imposed against the deceased Rabindra Nath Patangia, even under Rule 21 of the Assam Services Pension Rule, 1969 . In other words, the deceased Rabindra Nath Patangia died as a person against whom there was no penalty imposed during his service career or thereafter.

8. In the aforesaid circumstance, it cannot be accepted that the deceased was not entitled to his pensionary and other benefits under the Assam Services Pension Rule, 1969 as well as under all other relevant provisions of law. On his death a legal right had accrued to the present petitioner Smti. Bina Patangia for a family pension under Rule 143 of the Assam Service Pension Rules, 1969.

9. From the said point of view the cause of action to sue or to be sued in respect of the present petitioner Smti Bina Patangia survives even on the death of deceased Rabindra Nath Patangia and the legal right of the present petitioner Smti. Bina Patangia subsists. Accordingly, there was no impediment either on facts or under the law for the deceased Rabindra Nath Patangia to receive pensionary benefits under the Assam Service Pension Rules, 1969 and all other relevant laws and therefore, we have to accept the situation that the deceased Rabindra Nath Patangia was entitled to the pensionary benefits from the date of his retirement up to the date of his death. After his death the Page No.# 5/5

present petitioner Smti. Bina Patangia being his legal heir would be entitled to the family pension under Rule 143 of the Assam Services Pension Rules, 1969.

10. As the writ petition was instituted under a different circumstance, the Pension Department was not arrayed as a respondent. From the said point of view we require the petitioner to implead the Director of Pension, Assam as respondent No.5 in the present writ petition. Mr. B. Deuri, learned counsel accepts notice on behalf of the Director of Pension and also appears for the purpose of this hearing.

11. Accordingly, the respondents in the Secondary Education Department as well as the authorities of the respondent No.4 shall do the needful for forwarding the pension papers of the deceased Rabindra Nath Patangia as well as that of the present petitioner Smti Bina Patangia for the purpose of family pension. Upon the same being forwarded, the Director of Pension shall proceed as per law and bring the same to its logical end. The requirement of this order be done by the Education Department of the Govt. of Assam and the respondent No.4 within a period of one month from the date of receipt of the certified copy of the order and the Director of Pension may process the matter within a period of another three months thereafter.

12. Ordered accordingly.

JUDGE

Comparing Assistant