IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6109 of 2002 MAHARANI SINGH, W/o late Dr. Mithilesh Kumar Singh, present resident of Mohalla Sarvodaya Nagar (Near Gayatri Temple), P.S. Town, District Begusarai, at permanent resident of village Sikundra, District Jamui … Petitioner Versus 1. THE STATE OF BIHAR 2. The Commissioner cum Secretary, Department of Health and Family Welfare, Bihar, Patna 3. The Director-in-Chief, Department of Health and Family Welfare, Bihar, Patna 4. The Civil Surgeon cum Chief Medical Officer, Munger 5. The District Treasury Officer, Munger 6. The Civil Surgeon cum Chief Medical Officer, Lakhisarai 7. The District Treasury Officer, Lakhisarai 8. The Secretary, Department of Finance, Bihar, Patna 9. The Accountant General, Bihar, Patna … Respondents ----------- 7. 14.9.2010 Having heard counsel for the petitioner and the counsel for the State in respect of the following prayer: “(I) To make payment of the salary and other admissible monetary lying benefits which has been lying due to be paid to the husband of the petitioner, who unfortunately died on 29.12.1997 in harness. The details of the salary not paid, is being as under:- (a) From 1.9.1990 to 31.1.1991 (till the date the husband of the petitioner was transferred vide order as contained in Annexure 1, issued by respondent no.4. (b) From 1.2.1991 to 29.12.1997 when he was posted at Additional 2 Primary Health Centre Gerua Purusanda (Halsi), Lakhisarai.” this Court is satisfied that the claim for payment of salary of the petitioner for the period 1.2.1991 to 29.12.1997 cannot be allowed, inasmuch as there is a specific assertion in paragraph 5 of the counter affidavit reading as follows: “That as regard the claim for the payment of salary from the period of 1.2.1991 to 29.12.1997 of the petitioner‟s husband when he was posted at Addl. PHC, Gurua, Parsanda (Halsi), District Lakhisarai, it is submitted that petitioner‟s husband was found absent from 1.2.1991 to 29.12.1997. The Health Department has regularized aforesaid period treated as Extraordinary leave vide notification No. 827(3) dated 3.7.2002 taking a sympathetic view so that the death cum retirement benefit could be paid. Normally this Court could not have gone into such a disputed question of fact where the wife of the deceased employee is claiming salary for the period in question on the basis of her assertion that her husband was present on duty in the 3 aforementioned period and the respondents had taken a categorical stand with regard to continued absence of the husband of the petitioner from duty. In this context counsel for the petitioner was asked to point out any document or any other evidence which could have substantiated the alleged claim of the husband of the petitioner to have worked in the aforementioned period. Counsel has pointed out the representation filed by the husband of the petitioner on 10.3.1991 and 21.8.1991, as contained in Annexures 4 and 5, as also an undated history-sheet in the handwriting of the husband of the petitioner. None of these three documents, contained in Annexures 4, 5 and 11, can be treated to be an authentic document for establishing the claim of the petitioner that her husband was working continuously at his place of posting between 1.2.1991 to 29.12.1997. As a matter of fact from the prescription of Christian Medical College and Hospital, Vellore enclosed with the writ application being part of the representation filed by the husband of the petitioner, it 4 becomes absolutely clear that he was ailing for a long time suffering from repeated attacks of Jaundice, fever and right Hypochondriac, whereafter he was also admitted in Vellore hospital on 18.9.1995 and was discharged on 3.10.1995 where he had also undergone surgery on 22.9.1995. The petitioner, however, in the writ application has not said a word with regard to chronic illness of her husband and this document by way of prescription has only come in reply to the counter affidavit and as such, it would be difficult for this Court to issue a direction believing that the husband was present on duty in the period 1.2.1991 to 29.12.1997 even when he was suffering from recurrent attack of jaundice and fever and had also undergone surgery at Vellore in the same period. The petitioner, therefore, in all fairness should not have suppressed these facts with regard to illness of her husband while claiming salary for the full period and in fact had the respondents not filed counter affidavit enclosing the application filed by the petitioner before the Secretary of the Health Department, this 5 Court could have remained in dark as with regard to alleged claim of the husband of the petitioner of continued working for the period 1.2.1991 to 29.12.1997, whereas the petitioner after the death of her husband in her representation filed before the Secretary of the Health Department on 11.5.1999 had herself admitted that her husband did not work in the said period on account of continued illness as would be evident form the following extract of her application: Þ¼8½ flfoy ltZu] eqaxsj ds mDr i= esa esjs Lo0 ifr ds fnukad 01- 02-91 ls e`R;q dh frfFk 29-12-97 rd dh vof/k dks vuqifLFkr dgk x;k gS] tcfd ;g lgh izrhr ugha gksrk gS D;ksafd Lo0 flag ges'kk viuh fcekjh dk mYys[k djrs gq, vodk”k vkosnu i= nsrs jgs] tc pwafd budh e`R;q gks xbZ gS] vr% bl vuqifLFkr vof/k dks fcgkj lsok lafgrk ds fofHkUu fu;eksa ds rgr~ fofu;fer ns; vodk'k Lohd`r djrs gq, NqV~Vh osru] rFkk e`R;q&lg&lsokfuo`fr miknkuksa dk Hkqxrku djus dh d`ik dh tk;A ¼9½ tSlk fd vlSfud “kY; fpfdRld&lg&eq[; fpfdRlk inkf/kdkjh] eqaxsj fd;k gS fd Lo0 flag fnukad 01-02-91 ls 29-12-97 rd vFkkZr dqy 2542 dk;Z ij mifLfkr ugha gq,Alqfo/kk gsrq fcgkj lsok lafgrk ds fofHkUu fu;eksa ds vUrxZr fo'ks’k ifjfLFkfr esa Lohdk;Z oSrfud oSrfud vodk”kksa dk mYys[k fups dj jgh gw¡ %& ¼1½ fcgkj lsok lafgrk ds fu;e 227 ds rgr vftZr vodk”k 240 fnu ¼iw.kZ vkSlr osru½ ¼2½ fcgkj lsok lafgrk ds fu;e 232 ds rgr vftZr vodk”k ¼v)ZvkSlr osru ij ½ 200 fnu ¼iwoZ vkSlru osru½ ¼3½ fcgkj lsok lafgrk ds fu;e 201 ,oa 202 ds rgr fo”ks’k vko';drk vodk'k ¼730 fnu½ ¼i½ 120 fnu ¼iw.kZ vkSlru osru½ ¼ ii½ 610 fnu0 ¼v)Z vkSlru osru½ ¼4½ fcgkj lsok lafgrk ds fu;e 221 ds rgr ¼vLirky vodk'k½ ¼183 fnu½ 90 fnu iw.kZ vkSlru osru ¼i½ ¼ ii½ 93 fnu ¼v)Z vkSlru osru½ 6 ¼5½ fcgkj lsok lafgrk ds fu;e 243 ds rgr ¼dSalj½ vodk”k 365 fnu ¼v)Z vkSlru osru½ ¼6½ fcgkj lsok lafgrk ds fu;e 236 ds rgr vlk/kj.k voSrufd vodk”k 824 fnu voSrfud dqy 2542 fnuÞ As a matter of fact in the said application the petitioner herself knowing that her husband had not performed duty between February, 1991 to December, 1997 had limited her claim for payment of salary for the period September, 1990 to January, 1991 and it is unfortunate that the widow petitioner either of her own or on a wrong legal advice has made a false statement before this Court which would amount to committing perjury. That apart the whole issue has been gone into by the respondents while granting extraordinary leave to the husband of the petitioner for the aforesaid period. Such order though brought on record by way of Annexure „B‟ to the supplementary counter affidavit filed today with a copy thereof served on the counsel for the petitioner has not been assailed till date and therefore, the matter should be allowed to rest by treating the aforementioned period to be 7 extraordinary leave without pay in terms of Rule 246 of the Bihar Service Code The claim for payment of salary for the period 1.9.1990 to 31.1.1991, however, has not been disputed in a clear terms in either of the two counter affidavits filed by the respondents wherein all that has been said is that a direction has been given issued by the Civil Surgeon to examine as to whether in the said period the husband of the petitioner had worked. Counsel for the State, however, has no instruction as to what further steps were taken by the Civil Surgeon and therefore, for the aforementioned period of five months i.e. from 1.9.1990 to 31.1.1991 this Court would direct the Civil Surgeon of Munger to examine from the relevant records as to whether the husband of the petitioner had worked in the aforementioned period. It must be kept in mind that the posting of the husband of the petitioner in Munger was on a leave reserved post and therefore, if there was/ is any evidence to show with regard to joining of the husband of the petitioner on the said post prior to his being deputed to 8 Additional Primary Health Centre, Purusanda, Lakhisarai on 31.1.1991, the salary of the aforementioned period must be paid to the petitioner, if the same has not been paid till date. This Court is really pained with the conduct of the petitioner in filing a frivolous writ application, but then the unfortunate circumstance in which she has been put into on account of premature death of her husband, would be a mitigating factor in not imposing any cost against her. With the aforementioned observation and direction, this application is dismissed. (Mihir Kumar Jha,J.) Surendra/