Gauhati High Court
Hasanul Islam Ahmed vs The State Of Assam And 11 Ors on 31 May, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/7
GAHC010137792021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4714/2021
HASANUL ISLAM AHMED
S/O- LT. SK HABIBAR RAHMAN AHMED, R/O- VILL- NO. 1 HUDUMKHATA,
P.O. AND P.S. GOSSAIGAON, PIN- 783360, KOKRAJHAR, ASSAM
VERSUS
THE STATE OF ASSAM AND 11 ORS
REP. BY THE CHIEF SECY., GOVT. OF ASSAM, BLOCK-C, 3RD FLOOR,
JANATA BHAWAN, DISPUR, GHY-06, KAMRUP (M), ASSAM
2:THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM
FINANCE DEPTT.
3RD FLOOR
CHIEF MINISTERS BLOCK
JANATA BHAWAN
DISPUR
GHY-06
KAMRUP (M)
ASSAM
3:THE ADDL. CHIEF SECRETARY TO THE GOVT. OF ASSAM
COOPERATION DEPTT.
DISPUR
GHY-6
4:THE UNDER SECRETARY TO THE GOVT. OF ASSAM
COOPERATION DEPTT.
ASSAM SECRETARIAT (C)
E BLOCK
2ND FLOOR
DISPUR
GHY-06
Page No.# 2/7
KAMRUP (M)
ASSAM
5:THE UNDER SECRETARY TO THE GOVT. OF ASSAM
SOCIAL WELFARE DEPTT.
DISPUR
GHY-06
KAMRUP (M)
ASSAM
6:THE DY. SECRETARY TO THE GOVT. OF ASSAM
COOPERATION DEPTT.
ASSAM SECRETARIAT (C)
E BLOCK
2ND FLOOR
DISPUR
GHY-06
KAMRUP (M)
ASSAM
7:THE REGISTRAR OF COOPERATIVE SOCIETIES
ASSAM
KHANAPARA
GHY-22
ASSAM
8:THE ADDL. REGISTRAR OF COOPERATIVE SOCIETIES (ADMIN)
ASSAM
KHANAPARA
GHY-22
ASSAM
9:THE DY. REGISTRAR OF COOPERATIVE SOCIETY
ASSAM
KHANAPARA
GHY-22
ASSAM
10:THE DY. REGISTRAR OF COOPERATIVE SOCIETIES (E)
HEAD OFFICE
KHANAPARA
GHY-22
ASSAM
11:THE ASSTT. REGISTRAR OF COOPERATIVE SOCIETIES (E)
HEAD OFFICE
KHANAPARA
GHY-22
Page No.# 3/7
ASSAM
12:THE ASSTT. REGISTRAR OF COOPERATIVE SOCIETIES
GOSSAIGAON
PIN- 78336
Advocate for the Petitioner : MR F KHAN
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 31.05.2022 Heard Mr. F. Khan, learned counsel for the petitioner as well as Ms. S. Baruah, learned Govt. Advocate appearing for the State respondent nos.1 and 5 and Mr. G. Bordoloi, learned standing counsel for the Cooperation Department appearing for the respondent nos. 3, 4, 6 to 11 and Mr. B. Gogoi, learned standing counsel for the Finance Department.
2. The case of the petitioner is that his father, late Habibar Rahman Ahmed, who was then working as Senior Inspector/ Auditor in the office of Assistant Registrar of Cooperative Society, Gossaigaon (respondent no.12), had died-in-harness on 30.05.2020. It is projected that the father of the petitioner, when alive, had applied for VRS on 31.01.2018 on medical ground, but the application for VRS was not considered and he had died on 30.05.2020.
3. The case of the petitioner is that after the death of the father, his mother had applied for the Death-cum-retirement benefits like family pension, provident fund, Death-cum-Retirement-Gratuity benefit, etc., but such Page No.# 4/7 receivables were not paid to her. In the meanwhile, the mother of the petitioner, who was suffering from Stage-IV Ovarian Cancer, had also expired on 23.02.2021.
4. It is projected that the despite several representations, no money was paid to the petitioner, which had hampered the medical treatment of his mother.
5. Accordingly, it is projected that the petitioner is now under debt for the medical expenses incurred for both parents and accordingly, he has filed this writ petition on 01.09.2021, under Article 226 of the Constitution of India, for a direction upon the respondent authorities to calculate and release the provident fund, gratuity, ex-gratia, arrear pension, death-cum-retirement-gratuity, and any other payment which is due to him on account of death of his father.
6. The learned standing for the Cooperation Department has submitted that the application dated 01.02.2018, with a prayer for voluntary retirement, as submitted by the petitioner, was taken up for consideration by the Finance Department for regularization of service period of the father of the petitioner from 01.02.2018 to 30.05.2020 so that the family pension in respect of the deceased may be considered. It is submitted that in the meanwhile, the application for pensionary benefit has been received and processed vide file no. COOP.471/2016/10 and the same has been endorsed to Personnel (B) Department on 16.12.2021 and on 08.03.2022, as per the views of the Finance Department. Hence, it is submitted that necessary steps for release of the pensionary benefits would be processed and released after the views received Page No.# 5/7 from the Finance Department.
7. In the present case in hand, the statement made by the petitioner based on application for voluntary retirement dated 01.02.2018 (Annexure-2) has been admitted by the respondent no.8 in paragraph 4 of the affidavit-in- opposition. In this regard, the Court is inclined to refer to the provisions of FR 56, which is quoted below:
"F.R.56. (a) The date of compulsory retirement of a Government servant is the date on which he attains the age of 55 years. He may be retained in service after this age with the sanction of the State Government on public grounds which must be recorded in writing, and proposal for the retention of a Government servant in service after his age should not be made except in very special circumstances. The age of compulsory retirement of a Government servant has been raised to 58 years from 55 years vide Notification No. AAP/143/77/37, dated 18-7-1977. Notwithstanding anything contained above, the retirement of Government employees should take effect from the after-noon of the last day of the month in which the employee concerned attains the age of superannuation.
(b) Notwithstanding anything contained in these rules the appropriate authority may, if he is of the opinion that it is in the public interest to do so, retire a Government servant by giving him notice of not less than three months in writing or three months pay and allowance in lieu of such notice after he has attained fifty years of age or has completed 25 years of service whichever is earlier.
(c) Any Government servant may, by giving notice of not less than three months in writing to the appropriate authority, retire from service after he has attained the age of fifty years or has completed 25 years of service, whichever is earlier."
8. From the above, it is seen from the FR 56(c) that any government servant, who has given notice of not less than three months in writing to the appropriate authorities, gets retired from service after he has attained the age of 50 years or has completed 25 years of service, whichever is earlier. It is not in dispute that the Registrar Cooperative Society, Assam, respondent no.7 herein is the competent authority to make substantive appointment to the post or service from which the father of the petitioner had wanted to retire. If recourse to FR Page No.# 6/7 56(c) is taken, for all intents and purposes, the father of the petitioner would have retired from government service on and from 31.05.2018.
9. In the present case in hand, the father of the petitioner was not given the benefit of voluntary retirement. Thereafter, the mother of the petitioner had also moved the authorities for pensionary benefits along with other receivable on the death of her husband, which was not paid and the mother of the petitioner died of serious ailments. Now the petitioner is running from pillar to post for receiving payment of retiral dues, pensionary benefit, etc., to which he was entitled to, but same has not been received and accordingly, the present writ petition under Article 226 of the Constitution of India was filed on 01.09.2021.
10. The petitioner has made a prayer for direction upon the respondents to release provident funds, gratuity, ex-gratia, arrear pensions and other death- cum-retirement benefits arising out of the death of his father and subsequently on the death of his mother. Nonetheless, this Court, being a Court of equity, is inclined to take note of FR 56(c) and the Court is inclined to hold that the father of the petitioner, during his lifetime had become entitled to receive his voluntary retirement dues. By applying the provisions of FR 56(c), the father of the petitioner had retired from service on 31.05.2018, which was during his lifetime.
11. Accordingly, the Court finds that the petitioner is entitled to the dues, which was receivable to his father on account of his voluntary retirement from service in terms of FR 56. Accordingly, the Court is inclined to mold reliefs and the respondents are jointly and severally directed to process the dues payable to Page No.# 7/7 the father of the petitioner on his voluntary retirement of service by applying FR 56 including FR 56(c). As the father of the petitioner had applied for voluntary retirement by letter dated 01.02.2018, the respondent authorities shall treat the father of the petitioner as having voluntary retired from service on 31.05.2018 on expiry of the three months period in terms of FR 56(c).
12. Accordingly, the respondents shall process and release the voluntary retirement dues of the father of the petitioner to the petitioner within an outer period of 4(four) months from the date of furnishing of the certified copy of the order on the Registrar of Cooperative Society, Assam. It is further provided that if the dues on account of the father of the petitioner, is not paid to the petitioner within the time allowed, the retiral dues of the father of the petitioner shall carry interest @ 9% from the date of default till actual payment.
13. Taking note of the claim of the petitioner that due to treatment of his parents, especially his mother who was suffering from cancer, he had incurred lot of debts, the respondents are directed to make an endeavour to make an interim payment of at least Rs.1,00,000/- to the petitioner, to be adjusted from the retiral dues of the father of the petitioner, which shall be done preferably within a period of 1(one) month.
14. Accordingly, this writ petition stands allowed to the extent as indicated above.
JUDGE Comparing Assistant