IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1880 of 2007 MOST.MAROON KHATOON Versus THE STATE OF BIHAR & ORS ----------- 06/ 05.05.2010 Heard Mr. Shivendra Kishore, learned counsel appearing on behalf of the petitioner and Mr. Sunil Kumar, assisting counsel to G.A. 4 for the State. With the consent of the parties, the matter has been taken up for disposal at the stage of admission. The petitioner is the widow of late Asgar Ali who died in harness while posted as Nalkup Khalasi under the respondent no. 7, the Junior Engineer, Public Health Branch (Lok Swasthya Prasakha), Prabatta, district Khagaria. Although after the death of the husband the petitioner was provided with an amount of Rs. 17,817/- towards G.P.F. amount and an amount of Rs. 24,354/- towards group insurance amount but save and except the aforesaid amount nothing was paid towards the death-cum- post retiral dues to the petitioner. It is in these circumstances that the present writ petition came to be filed by the widow- petitioner claiming family pension with effect from the date of death of the deceased employee on 23.11.1999 as also for certain other ancillary benefits set out in paragraph-10 of the writ petition which are as follows:- 1. Full salary of suspension period i.e. 10.02.1998 to 23.11.1999 2. Family pension with revised scale (granted by 2 Vth Pay Commission) 3. Amounts of revised scale of G.P.F. 4. Amounts of Leave in cashment 5. Amounts of gratuities 6. And other amounts which this Hon‟ble Court deem fit. The facts relevant for disposal of the writ petition are that the husband of the petitioner was appointed as a Khalasi on ad hoc basis in the scale of Rs. 155/- to 190/- vide order passed on 31.7.1980 which finds mention in the service book placed at Annexure-1 to the writ petition. Vide order no. 6 „E‟ dated 25.01.1982, he was appointed in the Work Charge Establishment against the post of Nalkup Khalashi in the scale of Rs. 350/- to 425/- with stipulations that the service rendered for the earlier period could not be counted. The formal order of appointment dated 25.01.1982 is placed at Annexure-2 of the writ petition, his name appearing at serial no. 7 of the said order. The husband was suspended under order dated 10.2.1998 (Annexure-3) by reason of his unauthorized absence and was subjected to a departmental proceedings. Unfortunately, he expired while in the state of suspension on 23.11.1999. A certificate of death is placed at Annexure-4 to the writ petition. The suspension of the deceased husband was revoked by order dated 25.03.2000 placed at Annexure-5 to the writ petition. Learned counsel for the petitioner submits that the deceased employee was not paid his subsistence allowance in its 3 entirety, on grounds of not marking attendance. Learned counsel relying upon a decision of this Court reported in 1995(2) All P.L.R. 545, submits that this Court has deprecated this action of the authorities in enforcing a suspended employee in marking his attendance. He thus submits that the respondent authorities in no circumstances could have withheld the subsistence allowance admissible to the deceased employee on pretext of non-marking of the attendance. He further submits that as the departmental proceedings never commenced and the department themselves chose to revoke the order of suspension (Annexure- 5), with no stipulation regarding forfeiture of the salary, entitles the petitioner to also claim salary for the said period. It is further contended that the husband of the petitioner having continued uninterruptedly for a period of 19 years, he could not have been denied pension and other pensionary benefits by the respondents. A short counter affidavit has been filed in the proceedings on behalf of the State and in which it is stated that as the concerned employee continued in the Work Charge Establishment and even died in harness in the said state, hence he was not entitled to any pensionary benefits. Opposing the prayer for payment of subsistence allowance it is stated that the husband of the petitioner had been absent from the date of suspension until 30.04.1998 and that he never attended the Headquarter for marking his 4 attendance, hence he was not entitled for the subsistence allowance. It was, however, contended that the subsistence allowance has, however, subsequently been paid to the heirs of the deceased employee. It is further contended that as the deceased employee did not do any work during the period of suspension, hence he was not entitled to the salary amount. Relying upon a resolution of the Finance Department dated 31.03.2004 placed at Annexure-A and Annexure-A/1, it was contended that the employees of the Work Charge Establishment who had superannuated or expired prior to their absorption, were neither entitled to pension nor entitled to family pension. Learned counsel for the State, with reference to the statement made in the counter affidavit, submits that admittedly, the service of the deceased employee was neither regularized nor he was brought in the regular establishment, hence following the stipulations contained in the Circular of the Finance Department at Annexure-A, the petitioner was not entitled for payment of any family pension or any other post retiral benefits. In so far as the issue of payment of subsistence allowance and/or payment of salary for the said period is concerned, that under no circumstances would be conditional upon marking of attendance by a suspended employee. Apart from the judicial pronouncement relied upon by the learned counsel for the petitioner, there are other pronouncements of this 5 Court deprecating the authorities for enforcing the marking of attendance. A perusal of the order of revocation of suspension shows that the authorities did not choose to pass any order forfeiting the salary of the petitioner. A revocation of order of suspension impliedly entitles a delinquent employee to payment of the salary for the period undergone in the state of suspension unless there is an order to that effect passed by the disciplinary authority forfeiting the salary by reducing the same to the subsistence allowance drawn during the said period. Rule 97 of the Bihar Service Code is eloquent on the issue of entitlement of salary to an employee in cases of revocation of suspension. Indisputedly, there is no order on the record of the proceedings passed by the respondent authorities in exercise of power under Rule 97of the Bihar Service Code restricting the pay and allowance of the petitioner to the subsistence allowance drawn by him. The circumstance noticed entitles the husband of the petitioner to payment of salary. This brings me to the issue of payment of the post retiral benefits as set out in paragraph-10 of the writ petition. Learned counsel for the petitioner, in support of his contentions regarding the entitlement of the deceased work charge employee and/or his legal heirs to draw family pension and other death-cum-retiral benefits relied upon a Division Bench order of this Court reported in 2007(1) P.L.J.R. 358 (Koshi Project Worker‟s Association & Anr. Vs. The State of 6 Bihar & Ors), more particularly paragraph 8 to 10 thereof. The Division Bench discussing the difference between a Work Charge Establishment and a permanent establishment and the right of an employee working therein has referred to a Circular dated 04.12.1949 of the State Government which also finds mention in the P.W.D. Code and provides that a post in the Work Charge Establishment which is of permanent nature i.e. required for 12 months in a year and for a longer and indefinite period, will be made permanent and included in the permanent establishment. Paragraphs 8, 9 and 10 are reproduced hereinbelow for the facility of quick reference: “08 On 4th December, 1949 the State Government incorporated in P.W.D. Code volume-1, the condition of work- charge establishment and thereby provided, amongst others, that the post of work- charge establishment which are of permanent nature, i.e. required for 12 months in a year and for long and indefinite period, will be made permanent and included in the permanent establishment and men employed on these posts, having one year‟s approved service will be included amongst permanent Government employees. 9. Subsequent thereto Government of Bihar Published a Gazette notification on 16th April, 1950 and thereby notified its decision dated 15th April, 1950 to incorporate the following, as a rule made under proviso to Article 309 of the Constitution of India:- “all the enactments, rules and orders, whether made under any enactment or otherwise, which regulated 7 the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs which are now the affairs of the State of Bihar and which were in force immediately before the 26th January, 1950, shall until provision is made by or under an act of the State Legislature, to regulate such recruitment and conditions of service, be in force as if they had been made by virtue of the power under the said proviso”. 10. In view of the said notification published on 26th April, 1950 the revised condition service of work- charge establishment as decided by the Government on 4th February, 1949 became legislative service rules pertaining to the employees of the work-charge establishment of the Government. As a result of such decision of the Government which has not yet been cancelled or repealed by any enactment made by the Legislature of the State, an employee working in the work-charge establishment for a period of more than one year is deemed to have became a member of the permanent establishment of the State Government.” (Emphasis supplied by me). The relevant paragraphs of judgment as set out hereinabove in this order manifestly shows that the Division Bench upon consideration of the relevant Circulars issued by the State Government in this regard and which have not been superseded, withdrawn or cancelled, proceeded to hold that an employee working in a Work Charge Establishment for a period of more than one year would be deemed to have become a member of permanent establishment of the State Government. 8 Apart from the aforesaid aspect the family pension Scheme of 1964 in paragraph-6 thereof provides that it would be applicable to all regular employees on a pensionable establishment, temporary or permanent, who are in service on 1.4.1964 or are recruited thereafter. Thus the family pension Scheme as designed on 3.10.1964 itself provides for payment of family pension to the employees whether temporary or permanent subject to the establishment being a pensionable establishment. It is not a case of the respondents that the establishment in which the petitioner was functioning was a non-pensionable establishement rather the only objection taken by the respondents is to deny the benefits to the petitioner is by taking recourse to the stipulations made in the Circular dated 31.3.2004. In view of the clear finding of the Division Bench (supra) as also reproduced in this order, regarding status of a work charged employee the case of the husband of the petitioner having rendered 19 years continuous service definitely stands on better footing. Thus following the judgment of the Division Bench in the case of Koshi Project Worker‟s Association & Anr. Vs. The State of Bihar & Ors.(supra), I have no hesitation to hold that the continuous service of a period of 19 years, rendered by the husband of the petitioner would qualify for pension as envisaged under Rule 58 of the Bihar Pension Rules and entitles him to draw pension and other pensionary benefits. As a 9 consequence thereof the writ petitioner would be entitled for payment of family pension as also to other death-cum-retiral benefits as admissible to a permanent employee of a pensionable establishment of the Government of Bihar. I have also held that the petitioner would be entitled for salary of the late husband for the period under suspension after adjusting the subsistence allowance, if any, paid. The re-fixation, calculation and the payments thereof should be carried out within a period of three months from the date of receipt/production of a copy of this order after obtaining necessary sanction from the Accountant General, Bihar, Patna who would be under a duty to accord authorization within a period of two weeks from the date of receipt of the sanction order. As the husband of the petitioner expired on 23.11.1999. I hope and trust that the entire exercise would be completed within a period of three months from the date of production/ receipt of a copy of this order. The writ petition is allowed. S.Sb/- (Jyoti Saran, J.)