IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10674 of 2007 1.MOSSAMAT MANKI DEVI wife of late Deo Narayan Sah 2.Subodh Prasad Sah 3.Vijai Prasad Sah 4.Ashok Kumar Sah 5.Ram Kumar Sah 6.Dipak Kumar Sah Nos. 2 to 6 sons of Late Deo Narayan Sah Resident of Mohania Chakala, P.S. Banmankhi, District Purnea. 7.Smt. Nirjala Devi daughter of Late Deo Narayan Sah wife of Sri Guru Prasad Sah. Resident of village/ P.O. Sahuria, P.S. Janki Nagar, district Purnea. Versus 1.THE STATE OF BIHAR through the Chief Secretary, Old Secretariat, Patna-1 2.The Director Primary Education, Bihar New Secretariat, Bailey Road, Patna-1. 3.The District Superintendent of Education Araria. 4.The District Magistrate, Araria. ----------- 2 26.7.2010 Heard Mr. Madhav Roy, learned counsel for the petitioners and learned counsel for the State. Prayer of the petitioners in this writ application reads as follows:- “That by this writ petition the petitioners seek for issuance of writ in the nature of mandatory command upon the Respondents to award the Ex- gratia payment of Rs.10,00000.00 (Ten lacs) to the petitioner No.1 who is the wife of late Deo Narayan Sah who met with an accident in course of performance of election duty in 2005 assembly election of the Bihar Legislative Assembly and she also be given the full admissible salary drawn by the deceased government servant namely Deo Narayan Yadav till the deceased‟s actual date of retirement.” Mr. Roy, in support of the aforementioned prayer has referred to the First Information Report, Postmortem Report and the Government Policy dated 5.5.1997 and has submitted that the husband of petitioner no.1 was only bread earner in the family and 2 death of her husband had taken place in course of exercise of his official duty. Mr. Roy in this context has relied to the judgment of this Court in the case of „Kamlabati Devi Vs. State of Bihar & Ors.’ Reported in 2002 (2) B.B.C.J. 499 and in the case of „Madan Kumar Singh Vs. State of Bihar & Ors.’ Reported in 2007 (1) P.L.J.R. 806. Counsel for the State, on the other hand, referring to the stand taken in the counter affidavit, would submit that the District Magistrate Cum District Election Officer, Araria in his order contained in letter dated 17.9.2007 having enquired into the matter and upon examination of all relevant materials had recorded his finding that such death of Late Deo Narayan Sah had not taken place in course of election duty, which reads as follows:- “mi;qZDr fo"k; ,oa Lo0 nso ukjk;.k lkg @e`r f”{kd dehZ@ dh iRuh dk dguk gS fd muds ifr dh e`R;q fnukad 14&11&05 dks izkr% 3&45 esa vjfj;k dksVZ LVs”ku ij jsy ls dV tkus ds dkj.k gks xbZ] vuqxzg vuqnku ds fy, nkok fd;k x;k gS A oLrqfLFkfr bl izdkj gS fd foxr fo/kku lHkk pquko dh frfFk 13&11&05 dks izkr% 7 cts ls l/;k 4 cts rd Lo0 nso ukjk;.k lkg 128 ujirxat fo/ku lHkk {ks= ds ernku dsUnz la0 27 e0 fo0 uckoxat esa izFke ernku inkf/kdkjh ds :Ik esa fu;qDr@ dk;Z fd;k A ftyk fuokZpu inkf/kdkjh }kjk fuxZr fu;qfDr i= esa Li"V mYys[k gS fd ihBklhu inkf/kdkjh ernku lekfIr ds Ik'pkr xLrhny inkf/kdkjh ds lkFk ctzx`g LFky] vjfj;k rd vk,axsa A Lo0 lkg pwafd izFke ernku inkf/kdkjh Fks] ernku lekfIr ds Ik'pkr lh/ks inLFkkfir eq[;ky; @ujirxat ls jkuhxat iz[k.M ds varxZr izk0 fo0 czgEnso Vksyk tgkW ij f”{kd ds :Ik esa inLFkkfir gS @ esa tkuk Fkk] Li"V gS fd Lo0 lkg futh dk;Zo”k vjfj;k vk;s ,oa Vzsu ls vU;= txg tkus ds dze esa dVus ds dkj.k e`R;q gks xbZ] lkFk gh vjfj;k dksVZ LVs”u ls jkuhxat iz[k.M {ks=kaxZr inLFkkfir txg ij jsy :V Hkh ugha gS A vr% mi;qZDr oLrq fLFkfr dks ns[krs gq, budk vuqxzg vuqnku dk nkok ekU; ugha gS A bl vk”; dk fu.kZ; iwoZ esa rkRdkyhu ftyk fuokZpu inkf/kdkjh lg ftyk n.Mkf/kdkjh }kjk Hkh fy;k tk pqdk gS A** From the aforementioned order it is clear that there is a serious disputed question of fact as with regard to death of the 3 father of the petitioner, the government servant in course of election duty. Since such decision also refers to an earlier decision taken by the then District Magistrate, this Court will have no hesitation in coming to a finding that the present order at Annexure-A has only reiterated the earlier order. Admittedly, petitioners were never given an opportunity of hearing by the District Magistrate Cum Collector of Araria district before passing the impugned order or even the earlier order and therefore the petitioners may have a legitimate grievance that their view point was not considered while taking the decision either by the earlier District Magistrate or the subsequent District Magistrate who had recorded his order on 17.9.2007. That being so, this Court would direct the present District Magistrate, Araria to consider grievance of the petitioners after affording opportunity of hearing to them or their legal representatives and pass a fresh order in the light of submissions and materials placed on behalf of the petitioners. While doing so, the District Magistrate, Araria will not be prejudiced by the earlier orders passed by him or his predecessors. Let it be however made clear that this Court has expressed no opinion on the merits of the case. The Collector/District Magistrate is however directed to pass his reasoned order after giving opportunity of hearing to the petitioner and by also taking into account the law on the subject laid down by the Court in the case of Kamlabati Dvi (supra) and Madan 4 Kumar Singh (Supra). Such exercise however must be completed by the District Magistrate, Araria preferably within a period of six months from the date of receipt/production of a copy of this order along with a fresh copy of the representation and the documents on which the petitioners would like to rely for pressing their claim. With the aforementioned observation/direction this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)