Allahabad High Court
Smt. Suman vs State Of U.P. And Another on 22 April, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:69750 Court No. - 34 Reserved A.F.R. Case :- WRIT - A No. - 11645 of 2023 Petitioner :- Smt. Suman Respondent :- State of U.P. and Another Counsel for Petitioner :- Samarath Singh, Sankalp Narain, Srivats Narain Counsel for Respondent :- CSC, Vimlesh Kumar Rai Hon'ble J.J. Munir,J.
1. Heard Mr. Aditya Vikram Bisen, Advocate holding brief of Mr. Samarth Singh, learned Counsel for the petitioner, Mr. Vimlesh Kumar Rai, learned Counsel appearing for respondent No. 2 and Ms. Monika Arya, learned Additional Chief Standing Counsel appearing on behalf of the State.
2. The petitioner's husband, the late Videsh, was a Safai Karmachari in the employ of the Nagar Palika Parishad, Ujhani, District Budaun (for short, 'the Nagar Palika'). He was a Class-IV employee.
3. The petitioner's case is that her husband was appointed in the establishment of the Nagar Palika on 01.11.1980. Her husband's date of birth recorded in the service book was 28.01.1961 and he retired from service upon attaining the age of superannuation on 31.01.2021. The petitioner's further case is that upon retirement from service, for reasons best known to the respondents, her husband did not receive any post retiral benefits for his long service that he had faithfully rendered. He died on 02.02.2023, leaving behind him, the petitioner as his widow and other family members. The deceased's family, including the petitioner, are without any financial support. There is an averment in paragraph No.12, again made to the effect that the petitioner's husband retired from service on 31.01.2021 and till date has not received his post retiral benefits (which means till the date of his death), now due to her on account of her husband's services with the Nagar Palika.
4. The petitioner has asserted that she made a representation dated 18.04.2023 to the Executive Officer of the Nagar Palika, but in vain. She made a further representation with a request that post retiral benefits due to her husband be paid to her on 19.06.2023, which too did not yield result. Claiming inaction in the matter, the petitioner instituted the present writ petition on 17.07.2023, praying that a mandamus be issued to the respondent to forthwith release post retiral benefits due to her husband on account of services rendered by him.
5. On 21.07.2023, when this writ petition came up for admission, it was admitted to hearing and on the stay application, an interim mandamus was issued to the Executive Officer of the Nagar Palika to ensure payment of provident fund, leave encashment dues, family pension, arrears of family pension and gratuity to the petitioner, on account of her deceased husband's services, within a period of four weeks or show cause by the date fixed why the interim mandamus be not made absolute.
6. A counter affidavit was filed by the Executive Officer of the Nagar Palika, where the stand taken, in substance, finds place in paragraph Nos.4 and 6 of the affidavit, which read:
"4. That the contents of paragraph no. 8, 9, 10, 11 and 12 of the writ petition are not admitted as stated. In reply thereto, it is submitted that prior to date of actual retirement of husband of petitioner, i.e., 31.01.2021 at the age of 60 years according to his admitted date of birth, i.e. 28.01.1961 as stated by petitioner herself in paragraph no. 6 of writ petition and admittedly recorded in his service book also according to certificate dated 28.01.1981 issued by Primary Health Centre, Ujhani, Budoun in which he was 20 years old, an alleged Mark-Sheet and Certificate of the husband of the petitioner dated 20.05.1990 as private student issued by Principal, Girls Junior High School, Ujhani, Budaun was inserted in his service record by husband of petitioner showing his date of birth as 28.01.1964 and he continued in service up to his death i.e. 02.02.2023 as has been admitted by the petitioner herself in paragraph no. 10 of the writ petition and her representation dated 18.04.2023 (Annexure No. 2 to writ petition). The copy of Certificate dated 20.01.1981 issued by P.H.C. and Marks-Sheet Certificate dated 10.05.1990 are being filed herewith and marked as ANNEXURE NO. CA-1 to this affidavit.
6. That the contents of paragraph nos. 15, 16, 17, 18, 19 and 20 of the writ petition are not admitted as stated. In reply thereto it is submitted that the deponent joined his services at N.P.P., Ujhani on 05.01.2023 and at that time, husband of the petitioner was in service but after the death of husband of petitioner on 02.02.2023, for completion of pension papers, when the service book of husband of petitioner was seen, deponent came to know that his date of birth has been recorded in it as 28.01.1961 and he had to retire on 31.01.2021 but he continued in service upto his death and received salary from February, 2021 to December, 2022. The petitioner was called for competition of pension papers but she did not turn up but an application dated 12.04.2023 was moved by Mr. Dhiraj, S/o petitioner for compassionate appointment under dying-in-harness rules. It is relevant to mention here that pension/gratuity of employees of Nagar Palika Parishad is sanctioned by Commissioner concerned after examining of the pension papers by office of Local Fund Audit Examination Department but as the pension papers were not signed by petitioner, her pension/gratuity papers could not be forwarded. The leave encashment of petitioner was calculated as 4,58,153/- and her G.P.F. as Rs. 2,39,387/- only but husband of petitioner had been paid salary of Rs. 11,44,696/- wrongly From February, 2021 to December, 2022 and as such no amount could be paid to petitioner. However, the gratuity of petitioner becomes to Rs. 7,68,768/- and as the gratuity of the petitioner will be sanctioned, deducting the amount of Rs. 11,44,696/ illegally paid to husband of petitioner from total amount of G.P.F., Gratuity and leave encashment, remaining amount will be paid to petitioner immediately without any delay. There is no fault of department for delay in sanctioning of pension and gratuity of petitioner but the same was caused due to non- cooperation of petitioner as she did not turn up to sign the pension papers even after best effort of department and repeated request. Beside signing the pension papers, petitioner approached this Hon'ble Court and thereafter also, a letter dated 03.08.2023 was moved by deponent to petitioner but she denied to receive it, then the same was sent to her through registered post on 05.08.2023 but she did not turn up and unsigned pension papers of petitioner were sent through registered post to Dy. Director, Local Fund Audit Department, U.P., Bareilly by deponent, vide letter dated 09.08.2023. However, again a registered letter was moved by deponent to petitioner to sign upon the papers of family pension/gratuity but for no result. The copy of representation dated 12.04.2023, letter dated 03.08.2023 with receipt of registry and letter dated 09.08.2023 with all the relevant documents regarding family pension/ gratuity are collectively being filed herewith and marked as ANNEXURE NO. CA-2 to this affidavit."
7. This stand of the Nagar Palika was noticed by this Court in the order dated 03.10.2023 and it was prima facie found that even if the petitioner's husband had continued to work beyond his date of superannuation and received salary, it may not entitle the respondents to deduct emoluments paid to the petitioner's husband, after his date of superannuation and until the date he died, as the respondents say, still in harness.
8. This Court remarked that it would entitle the respondents to determine the post retiral benefits payable to the petitioner on account of her husband's services, on the basis of his correct date of superannuation, excluding the period of service that he had worked beyond that age. It would, however, not entitle the respondents to recover from the petitioner, salary paid for the period of time that the petitioner's husband had rendered work in the Nagar Palika establishment. If that were done, it would amount to the taking of begar from the petitioner's husband, prohibited by Article 23 of the Constitution.
9. After the Court passed the order dated 03.10.2023 on the interim application, asking the Commissioner of the Division to show cause by her personal affidavit, on or before 06.10.2023, why the petitioner's gratuity and pension, or whatever requires the Commissioner's approval, has not been approved, a supplementary counter affidavit dated 06.10.2023 was filed by the Executive Officer of the Nagar Palika, saying that the pension papers of the petitioner were returned by the Deputy Director, Local Fund Account Examination Department, U.P., Bareilly Region vide letter dated 11.04.2023, as these did not carry signatures of the petitioner and the witnesses required. An employee of the Nagar Palika was detailed to the petitioner's residence on 26.09.2023 with a letter dated 26.09.2023 issued by the Executive Officer, which the petitioner did not receive. It was sent to her through registered post on 27.09.2023, requesting her to sign her pension papers and complete other formalities, but she did not turn up in the Nagar Palika office. It was averred in paragraph No.4 of the supplementary counter affidavit that the Executive Officer or some other employee, are ready to go over to the petitioner's residence or to any suitable place, as this Court directs to get her pension papers completed. A supplementary rejoinder was filed, saying that no efforts were made by the Nagar Palika to obtain her signatures on the pension papers. It is averred that the petitioner is a poor and illiterate woman and not aware of the steps required to be taken in order to secure payment of post retiral dues of her husband.
10. Apart from the first set of supplementary counter affidavit and its supplementary rejoinder, the Commissioner, Bareilly Division, Bareilly filed her personal affidavit dated 12.10.2023, where it was averred in paragraph No.9 that after several meetings and long discussions, the petitioner agreed to sign the pension form, upon receiving dues of her provident fund and earned leave encashment. On the 7th of October, 2023, the provident fund, being a sum of Rs.2,39,386/- was transferred to the petitioner's account, and, subsequently, a sum of Rs.4,58,153/- through another cheque on account of earned leave encashment was paid. The processing of the petitioner's claim for family pension and gratuity have been recommended by the Deputy Director, Local Bodies, Audit Examination. The papers, after verification by the Finance and Accounts Officer in the office of the Basic Education Officer, Budaun, have been forwarded with the necessary recommendations by the Chief Treasury Officer and the District Magistrate, Budaun to the Commissioner for her approval. The Commissioner had accorded approval to payment of the petitioner's pension, family pension and gratuity on 07.10.2023. There is a sanction letter dated 10.10.2023, appended to the Commissioner's personal affidavit, issued by the Additional Commissioner (Administration) on the Commissioner's behalf, which fixes the petitioner's entitlement to arrears of pension (that is the period of time when the petitioner's husband would rightfully superannuate and the date he died), the family pension due to the petitioner and gratuity payable. The aforesaid post retiral benefits, quantified under the three heads for the petitioner and carried in the Additional Commissioner's order dated 10.10.2023, are reproduced below:
पेंशन:
दिनांक 01-02-2021 से दिनांक 02-02-2023 तक रू0 18200/- (अंकन अठारह हजार दो सौ रूपये मात्र) एवं अनुमन्य महंगाई राहत प्रतिमाह पारिवारिक पेंशन:
पारिवारिक स्व० श्री विदेश, भू०पू० सफाई नायक, नगर पालिका परिषद, उझानी की मृत्यु दिनांक 02-02-2023 को होने के कारण उनके परिवार की पात्र सदस्य उनकी पत्नी श्रीमती सुमन को मृत्यु की अनुवर्ती तिथि दिनांक 03-02-2023 से 27-01-2028 तक रू0 18200/- (अंकन अठारह हजार दौ सौ रूपये मात्र) एवं अनुमन्य महंगाई राहत तदोपरान्त दिनांक 28-01-2028 से रू0 10920/- (अंकन दस हजार नौ सौ बीस रूपये मात्र) एवं अनुमन्य महंगाई राहत प्रतिमाह उपादानः रु0 7,68,768/- - रु0 686543/- (अधिक भुगतान के विरुद्ध नगर पालिका परिषद, उझानी द्वारा प्रस्तावित कटौती) = 82,225/- (अंकन बयासी हजार दो सौ पच्चीस रुपये मात्र)
11. There is not much to be noticed in the other affidavits.
12. The crux of the matter is that the petitioner has been held entitled to a gratuity in the sum of Rs.7,68,768/-, wherefrom a sum of Rs.6,86,543/- have been deducted towards salary paid to the petitioner's deceased husband for the period of time that he is said to have worked beyond his scheduled superannuation on 31.01.2021 and 02.02.2023, when he died. The petitioner's arrears of pension have also been withheld because the total excess emoluments, as the respondents say, paid to the petitioner's husband, are a figure of Rs.11,44,696/-. We have noticed this in our order dated 03.10.2023.
13. The moot question is: If given the fact that there was some confusion about the petitioner's husband's date of birth, as recorded in his service book, and a later educational record certificate, in the absence of a finding recorded that the petitioner's husband committed fraud in continuing beyond his age of superannuation, are the respondents entitled to deduct the salary paid to the petitioner's husband beyond 31.01.2021 from his death-cum-retirement benefits? In fact, if the respondents had been vigilant, the petitioner's husband's date of birth is clearly recorded in his service book to be 28.01.1961 and he would superannuate on 31.01.2021, a fact admitted to the petitioner also. She has very candidly admitted the said fact in her writ petition. The petitioner's husband was a low paid Class-IV employee and apparently not sufficiently educated.
14. Apart from a bare assertion made in paragraph No.4 of the affidavit (counter affidavit dated 16.08.2023), without corroborative evidence or evidence aliunde to show that the petitioner's husband produced a mark-sheet and certificate dated 20.05.1990, showing himself to be a private student with the Girls Junior High School, Ujhani, Budaun, issued by the Principal of that institution, that indicated his date of birth to be 28.01.1964 and inserted it in his service record, it is difficult to accept the respondents' case in this regard. No proceedings were ever taken by the respondents while the petitioner's husband was alive to determine the responsibility for introduction of the mark-sheet and certificate dated 20.05.1990 in the petitioner's husband's service record. There is no material to bear out with the respondents' case. It cannot be said that it was he who inserted it. In whatever manner, the said certificate made its way to the petitioner's husband's service record, his date of birth is clearly recorded as 28.01.1961. It was the duty of the Nagar Palika, as the employers, to have retired him, according to the date of birth recorded in his service book. It is not the respondents' case that on the basis of the mark-sheet or certificate dated 20.05.1990, the petitioner's husband's date of birth was altered in the service book. The respondents should have known better that an employee retires according to whatever date of birth is entered in his service book.
15. If under these circumstances, the respondents permitted the petitioner's husband to continue beyond his recorded date of superannuation, taking work from him, which they do not deny for a fact, it is not open to the respondents to recover emoluments paid to the petitioner's husband for the work that he did for the Nagar Palika. If that were permitted, it would constitute the taking of begar prohibited under Article 23 of the Constitution. This was our tentative observation at the time orders were passed on the interim application on 03.10.2023 and the respondents have not been able to show that the position about the law is different. To the contrary, this position of the law is reinforced by a decision of mine in Rahimun-Nisha v. State of U.P. and others, 2022 (9) ADJ 448, where in very similar circumstances, it was held:
"12. The Nagar Palika Parishad, on the other hand, say more logically that the petitioner's late husband worked 10 months beyond his entitlement and drew salary for those extra months. According to them, that is the impediment which is required to be removed in order to entitle the petitioner to her family pension and payment of all other post retiral benefits due to her late husband. If, in fact, the stand of the respondents is that the petitioner's husband worked beyond his entitlement and drew salary for that period, quite apart from the legal position about the liability to refund such emoluments, all that the respondents could have done was to deduct the said sum of money and pay the petitioner's post retiral benefits. Her family pension had to be sanctioned and disbursed. The mere fact that the respondents think that the petitioner's husband has drawn some extra emoluments, by working beyond his entitlement, would not entitle the respondents to indefinitely postpone the payment of the petitioner's family pension or the post retiral benefits due to her on account of her husband's services. It must be remarked here that the respondents' plea about the petitioner's husband working 10 months beyond his entitlement, is woefully vague. It has not been indicated by reference to specific dates as to what, according to the respondents, was Mubarak Hussain's date of superannuation and when he actually retired. It has also not been indicated as to how and under what circumstances he could work for the claimed extra 10 months. There is not the slightest description of facts and dates about all things claimed. The respondents are the establishment, who possess all service records. They could precisely indicate in their affidavits the precise manner in which the petitioner's late husband worked 10 months beyond entitlement. They could also show as to who was responsible for those extra 10 months of work that he rendered in the fourth respondent's employ. Not only are these particulars about dates and facts missing, there is not the slightest evidence to show that the petitioner's husband worked an extra 10 months. The respondents could have annexed the petitioner's husband's service-book and show when he actually retired; and how it was beyond his superannuation.
13. The respondents being the employers, surely, the petitioner's husband could not have continued unilaterally in service beyond the date of his superannuation. The rather unrefined expression ''wrong papers'' that both the District Magistrate as well as the Nagar Palika Parishad have employed in their affidavits, could be indicated with more specificity to show what incorrect document, if any, the petitioner's husband produced or used to continue those extra 10 months in the Nagar Palika Parishad's employment. Not a whisper has been said about the character of that document, or who produced it, and how the petitioner's deceased husband, a mere employee, utilized it to his advantage.
14. There is another aspect of the matter. Assuming that by some mistake or wrong entry of the date of birth of the petitioner's husband or by some other means, he continued in service for 10 months beyond the date of his superannuation, for which he received salary, the same cannot be recovered by the respondents or made the subject-matter of adjustment. This is for the reason that the petitioner's husband, according to the respondents, drew salary for 10 months, but for work that he actually rendered. If the petitioner's husband rendered work for 10 months, recovery of emoluments paid for those extra 10 months of work, would amount to begar, which is prohibited under Article 23 of the Constitution. A Division Bench of this Court in Sushil Kumar Pandey v. State of U.P. and others, 2010(7) ADJ 617 (DB), had occasion to consider this question in the context of a compassionate appointment, secured by the dependent of a deceased Government servant, about whom it was revealed that he was temporary and terminated from service during his lifetime. The question was that notwithstanding the appointment secured by fraud being void, the 10 years' work that the appellant had rendered in terms of that void appointment, for which he was remunerated, would entitle the employers to recover the salary paid. In this context, it was held by their Lordships of the Division Bench in Sushil Kumar Pandey (supra):
''23. Therefore, upon the aforesaid discussions, we are of the view that the judgment of the learned Single Judge does not call for any interference. However, we have our reservation regarding the portion of the order by which the learned Single Judge has directed for recovery of salary that was paid to the appellant. Considering the facts and circumstances of the case, it is undeniably true that fraud has been played in obtaining the appointment by the appellant and it is also true that the said fraud would have remained undetected if the mother of the appellant had not applied for family pension. During this period more than 10 years had elapsed and the authorities continued to take work from the appellant and for the services rendered he was remunerated by salary. Now after 10 years of service as the appellant has been dismissed, in such a case, the recovery of entire salary from the person would be too severe for the acts and omission on his part but also the omission and negligence on the part of the authorities in granting appointment to the appellant, which in the facts of the case cannot be ruled out. Even otherwise Article 23 of the Constitution of India prohibits taking of 'Begar'. The State-respondents having taken work from the appellant (Sushil Kumar Pandey) for more then 10 years before the fraud was detected, cannot be permitted to ask for refund of the entire salary paid to him as it would amount to taking of 'Begar' which the Constitution of India strictly prohibits.''
15. The principle that for work done and remunerated the emoluments paid to a person, not at all lawfully appointed or lawfully entitled to serve, could not be recovered, was laid down in the extreme background of an abject fraud. Here, the 10 months of extra work beyond what the respondents claim could have been rendered by the petitioner's husband, is vague and nondescript. In this background, the principle that for work already rendered by an employee and remunerated by the employers, howsoever wrongly appointed or permitted to continue, cannot be recovered for that would be begar, applies with greater force."
16. In the opinion of this Court, the respondents have no right to recover the sum of Rs.11,44,696/- or any other sum of money, either from the gratuity or the arrears of pension payable to the petitioner, on account of her deceased husband's services to the Nagar Palika, rendered beyond 31.01.2021. They must release the entire sum of gratuity and arrears of pension due to her, without any deduction on account of the work done by the petitioner's husband beyond the date of his superannuation, reckoned in accordance with his date of birth entered in the service record. It goes without saying that the petitioner's husband's post retiral benefits, which have already been fixed, would be fixed, if not already done that way, according to his recorded date of birth, excluding the period that he worked beyond the date of his superannuation.
17. In the circumstances, this writ petition succeeds and is allowed. A writ of mandamus is issued to the respondents to pay the petitioner's gratuity and arrears of pension in their entirety, without deducting any sum of money on account of emoluments paid to the petitioner's husband for the period of time that he worked beyond his date of superannuation. The petitioner's dues shall be paid within a period of six weeks from the date of receipt of a copy of this judgment by the respondents.
18. Let a copy of this judgment be communicated by the Registrar (Compliance) to the Executive Officer of the Nagar Palika, the Deputy Director, Local Fund Account, Bareilly and the Commissioner, Bareilly Division, Bareilly.
19. There shall be no order as to costs.
Order Date :- 22.04.2024 Anoop (J.J. Munir, J.)