IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7904 of 2005 PRAKASH DEVI Versus THE STATE OF BIHAR & ORS ----------- 06/ 17.03.2010 The petitioner is the widow of Late Deochandra Jha who superannuated on 31.1.2000 while holding the post of Clerk. Having superannuated with effect from 31.1.2000, it so appears that Late Deo Chandra Jha never set out any claim for payment of his retiral benefits and expired on 6.1.2004 in that state. It is thereafter that the present writ petition came to be filed by his widow. The petitioner seeks, inter alia, a direction for payment of the death-cum-retiral dues admissible to her late husband together with family pension admissible as to her. A prayer has also been made for payment of arrears of salary for the period December, 1991 until 31.1.2000. A counter affidavit was filed on behalf of the respondent nos. 2 to 4 and in paragraph 10 thereof it is stated that the husband of the petitioner remained absent from 1.12.1991 to January, 2000 i.e. until his date of retirement. As the husband of the petitioner remained absent from duty, hence the salary paid to striking employees of the department during the said period was denied to him by reason of his absence from duty. Certain other documents have been placed on the record of the counter affidavit alleging that the husband of the petitioner did not follow the order of transfer nor gave charge in terms of the order issued thereunder. It is also stated that he did not hand over charge - 2 - of articles and superannuated during his absence from duty. It is stated that despite the aforesaid position the retiral dues as admissible to the husband of the petitioner until his date of superannuation was calculated and has been paid to the present petitioner. It is stated that she has been paid the death-cum-retirement gratuity of amount of Rs. 88,145/-, unutilized leave salary amount of Rs. 45,280/- both on 24.8.2004, group insurance amount of Rs. 31,984/- on 5.6.2004 and provisional pension as also provisional family pension was paid to the petitioner on the basis of 31 years 9 months of services. It is, however, admitted that in absence of authorization the provident fund amount has not been paid. In paragraph-21 of the counter affidavit it is stated that the petitioner was informed vide memo no. 36 dated 4.3.2005 to submit duly filled up pension form with photograph and specimen signature but she did not respond to the same and no sooner it is made available to the authorities, it would be forwarded to the Accountant General for issuance of authorization. Mr. Durganand Jha, learned counsel appearing on behalf of the petitioner, submits that the payments set out in the counter affidavit and placed at Annexure-B thereof is on provisional basis and is not final calculation of the retiral dues. He thus submits that on re- calculation of the retiral dues on the basis of the revised pay-scale of the husband of the petitioner on the date of superannuation i.e. 31.1.2000, she would be entitled to further amount against the retiral dues. It is admitted that the retiral dues have been calculated by the authorities on the basis of the salary drawn by the husband of the - 3 - petitioner as on 30.11.1991 being the date, which according to the respondent authorities is the last date of duty of the husband of the petitioner and whereafter he remained absent. Mr. Sanjay Kumar No. 1, learned G.P. 14 submits that the retiral benefits have been calculated on the said grounds and since the pension papers was filed belatedly, hence the payments have been made on that basis. In so far as the claim of the salary is concerned, learned counsel for the State submits that the documents on record sufficiently demonstrates that the petitioner’s husband remained absent during the aforesaid period. He further submits that the husband of the petitioner never chose to raise this issue and has accepted the position until his retirement. Having considered the rival submissions, I find that the claim of the petitioner in so far as payment of retiral dues including family pension on the basis of revised pay-scale of the husband of the petitioner as it stood on 31.1.2000 seems justified for the reason that the calculation of the retiral dues has to be made on the basis of the salary drawn on the date of superannuation. In that view of the matter, no doubt the husband of the petitioner has drawn salary only upto 30.11.1991 but even if the petitioner was not paid salary for the period 1.12.1991 to 31.1.2000, he would be entitled for the fixation of his pension and other pensionary entitlements on the basis of the notional salary of the deceased employee, as on 31.1.2000. The said notional fixation would be followed by pay revision under the Fitment Committee - 4 - report which took place in the State with effect from 1.1.1996. The husband of the petitioner retired with effect from 31.1.2000, hence the retiral dues would have been re-calculated on the basis of the replacement scale of the husband of the petitioner as it stood on 31.1.2000. The respondent no. 2, Civil Surgeon-cum-Chief Medical Officer and the respondent no.3, the In-Charge, Medical Officer would re-calculate the post retiral dues of the husband of the petitioner including family pension on the basis of the replacement scale of the husband of the petitioner as on 31.1.2000 and pay the entire arrears of pension and other pensionary benefits including family pension within a period of three months from the date of receipt/production of a copy of this order. In so far as the provident fund amount is concerned, the District Superintendent of Education, Samastipur would also calculate the provident fund dues of the petitioner and pay the same together with upto date statutory interest calculated up to the date of payments within the period stipulated above. However, in so far as the claim of salary for the period 1.12.1991 to 31.1.2000 is concerned, I find that no issue was raised by the husband of the petitioner either during his service period or even after his retirement on 31.1.2000 and even until his death on 6.1.2004. In that view of the matter and in view of statements made in the counter affidavit, this Court would not delve on the issue nor issue any directions. The petitioner, if so advised may, raise her claim before the respondent no. 2, Civil Surgeon-cum-Chief Medical Officer, - 5 - Samastipur with supportive documents and which shall be considered and disposed of in accordance with law. The writ petition stands disposed of. S.Sb/- (Jyoti Saran, J.)