IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.791 of 2006 In (CIVIL WRIT JURISDICTION CASE 12533/2003) Mostt.Prabhawati Devi, W/o Late Krishnadeo Singh, R/o Village-Sugia, Tola-Raghunathpur, P.O. Sugia Katsari, P.S.-Sheohar, District-Sheohar ….. Appellant, Appellant not party in writ petition Versus 01. The State Of Bihar 02. The Engineer-in-chief, Bagmati Irrigation, Department, New Secretariat, Bihar, Patna 03. The Chief Engineer, Bagmati Irrigation Department Kalambagh Chaok, Muzaffarpur, District-Muzaffarpur 04. The Superintending Engineer, Bagmati Irrigation Department, Bagmati Nagar, Sitamarhi, District- Sitamarhi 05. The Executive Engineer, Bagmati Irrigation Department, Sheohar, District- Sheohar 06. The Sub-Divisional Officer, Bagmati Irrigtation Department, Sheohar, District-Sheohar …. Respodnents/Respondents 07. Krishnadeo Singh @ Bishundeo Singh, S/o Late Ramswaroop Singh, resident of village-Sugia, P.O.- Sugia, P.S.+ District-Sheohar ….. Respondents/Petitioners For the Petitioner:- Mr. S. Azeem, Advocate For the Appellant:- Mr. Shyam Kant Singh, Advocate For the State:- Mr. Maheshwar Dhar Dwivedi, SC-23 & Mr. Ram Narayan, AC to SC-23 For respondent No.7:- Mr. Rajeev Kr. Verma & Mr. Pravin Kumar, Advocates ---------------------------------- 12. 09.09.2011 The L.P.A. arises out of the order passed by the learned Single Judge in C.W.J.C. No. 2533 of 2003 dated 07.07.2006 wherein the respondent no.7 seeks to quash the Memo no. 27 dated 6.8.2002 (Annexure-4) and letter no. 265 dated 20.09.2003 2 (Annexure-11) and also a direction upon the respondents to pay his salary which has been stopped without showing any reason and without giving any notice to him. The case of respondent no.7 was that he was appointed on the post of Khalasi in the work charge establishment under the Irrigation Department, presently Water Resources Department, on 25.08.1971 and continued as service and started drawing salary, but subsequently, in the year 2003, the wife of one Krishnadeo Singh has lodged a complaint subsequent to the death of his brother Krishnadeo Singh stating that her husband who was working on the post of Khalasi died in the year 2002 and respondent no.7 has impersonating her husband and started drawing his salary on such complaint the department has stopped the salary. Aggrieved by the same the present respondent no.7 has filed writ petition. The learned Single Judge heard the matter on merits and quashed the said Memo and directed the salary to be paid for the entire period treating him to be in service. Aggrieved by the said order the appellant herein preferred this L.P.A. A Division Bench of this Court after hearing the mater has 3 granted interim stay vide order dated 6.4.2007 and vide order dated 14.7.2010 the Division Bench of this Court having found that there are serious dispute as with regard to the identity of the appellant’s husband as well as respondent no.7 being the name of Krishnadeo Singh @ Bishundeo Singh, directed the Sub-ordinate Judge, Civil Court, Sheohar at Sitamarhi to frame issue to be decided and send a report to this Court. The issue to be framed on the line as under:- “Whether the deceased Krishnadeo Singh, who was husband of the appellant and died on 22.6.2002, was the person who was employed and worked till 22.6.2002 on the post of Khalasi/Peon in the office of Irrigation Department, Bagmati Division, Sheohar or it was his brother the writ petitioner, who claims his name to be Bishundeo Singh and also Krishnadeo Singh ?” Accordingly a report has been sent by the District & Sessions Judge, Sheohar vide letter no. 175 dated 8.5.2007, which is kept on record of the L.P.A. The Court below has affected an enquiry and examined both oral and documentary evidence and has examined witnesses of both sides and also the Governmental evidence. We have also an occasion to go through the report annexed with the L.P.A. record which is marked as Annexure-A. 4 A perusal of the report goes to show that the unofficial witnesses has come on the Dock to depose the facts with regard to working of both the parties. But, however the unofficial witnesses one Rajendra Prasad, Executive Engineer, Bagmati Division in para 3 has deposed that O.P.6 Bishundeo Singh has no alias name as Krishnadeo Singh and in para 4 he has deposed that Bishundeo Singh is the younger brother of Krishnadeo Singh. In para 5 he also deposed that Bishundeo Singh never worked as Peon in Bagmati Yojana nor drawn salary. In para 6 he deposed that Bishundeo Singh by committing fraud with the department has drawn salary in the name of Krishnadeo Singh and in para 7 also he deposed that after enquiry it was found that Bishudeo Singh is not Krishnadeo Singh. In para 8 deposed that Bishundeo Singh is falsely claiming himself as Krishnadeo Singh. In para 9 he deposed about working of Krishnadeo Singh as Dalpati but no cogent evidence has been laid about working of Krishnadeo Singh as Delpati. This witness has also proved the service book of Krishnadeo Singh which is marked as Exhibit A and pay acquaintance roll of year 1989-90 and 2010 which is marked as Exhibit B/1 and B/2. 5 In view of the aforesaid deposition of the official witness it is not forthcoming how the acquaintance roll could be laid down in the year 2010 when the said Krishnadeo Singh died in the year 2002. In absence of any evidence of the official witness on the disputed facts we are of the opinion that the finding of the court below have to be accepted to the effect that the husband of Mostt. Parwati Devi died on 22.6.2002 and he was named as Krishnadeo Singh and he was the person employed and worked till death on 22.6.2002. Learned counsel appearing on behalf of respondent no.7 submits that his client has been appointed in the year 1971 onwards and he was paid the salary and subsequently on the complaint lodged by the appellant herein the salary has been stopped. But however we are not satisfied with the argument of the learned senior counsel for the reason that the official witness who has examined on the Docks has deposed that there is a fraud led by the department by keeping the respondent no.7 in continuation of the job on the death of his brother in the year 2002 and the court below has also gone into the evidence and gave a report that it is the husband of the appellant Mostt. Prabhawati Devi who has 6 worked in the Department. Under the above circumstances, we accept the report and set aside the finding of the learned Single Judge. We are of the opinion that as the said Krishnadeo Singh died on 22.6.2002, the appellant is entitled for all the retirement and other consequential benefits. The learned counsel appearing on behalf of appellant has stated that a direction may be issued to the department that the retirement benefit and other consequential benefits accrued to late husband of the appellant herein may be directed to be paid to her in view of financial condition. We find some force in the contention of the learned counsel for the appellant and therefore this Court directs the said department to pay the retirement benefits and other benefits accrued to the late husband of the appellant herein within a period of three months from the date of receipt of a copy of this order. With the above observation the L.P.A. stands allowed. P.K. (T. Meena Kumari, J.) (Vikash Jain, J.)