Jammu & Kashmir High Court
Chaman Lal And Ors vs Kendriya Vidyalayas Sangathan & Ors on 22 March, 2006
Author: J.P Singh
Bench: J.P Singh
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU LPAOW No. 188 of 2000 Chaman Lal and Ors Petitioners Kendriya Vidyalayas Sangathan & Ors Respondents ! Mr.S.C Gupta, Advocate for the Petitioners. ^ Mr.K.L Sharma, Addl. CGSC for the Respondents. Coram Hon'ble Mr. Justice B.A Khan, Chief Justice (A) Hon'ble Mr. Justice J.P Singh Date : 22/03/2006 : JUDGMENT :
Per J.P Singh, Judge :-
1) Smt.Pushap lata, employed as a teacher with Kendriya Vidalaya Sangathan in 1969, was diagnosed as a case of SCLERODERMA, in advance stage in 1987. She accordingly, sought pre-mature retirement.
2) Respondent Sangathan does not appear to have responded for about eight years.
She however, expired on 7.11.1995, though in pain and suffering, because of non- release of her dues, complain the writ petitioner, who are the surviving members of her family. The petitioners submit that retrial benefits were sanctioned in 1996 after the death of Smt. Pushap lata and an amount of Rs.30,000 (Rupees Thirty thousand) initially sanctioned under Deposit Linked Insurance Scheme, was later withdrawn on the ground that Insurance was payable only if the employee had died in harness. The Sangathan relied on an office order of 4.8.1995 by which Smt. Pushap lata, deceased, is shown to have retired w.e.f 17.07.1987.
3) The petitioners dispute the receipt of or knowledge of any such communication/order.
4) Kendriya Vidalaya Sangathan did not produce any records either as to the receipt of this order by the appellants or a copy of this order before the writ Court.
5) The petitioners claimed release of Rs.30,000/ (Rupees Thirty Thousand only) on account of Deposit linked Insurance Scheme besides interest on retrial benefits w.e.f 1987 in their writ petition.
6) A learned Single Judge of this Court dismissed the writ petition by holding as under:
"So she was declared unfit to perform her duties on 17.7.1987. It is admitted that she never attended duty thereafter until her death. The respondents had thus no option, but to retire her from the aforesaid date. Otherwise, she would be out of service being absent from July 1987 to November 1995 when she died because the period cannot be treated as leave as there is no provision for granting leave for such a long time. Moreover, the petitioner has not challenged the order retiring her with effect from 17.7.1987. They have instead accepted to retrial benefits calculated on this basis. On the contrary, one of the reliefs claimed is that interest on the retrial benefits may be directed to be paid from July 1987 to 1996 when the retrial benefits were released on the ground that pension and other retrial benefits were withheld for more than eight years. So the petitioners have accepted the fact that the deceased was rightly retired with effect from 17.7.1987. They have also accepted the retrial benefits without protest and drawn the amount.
If that be so, they are not entitled to Rs. 30,000/- Deposit Link Insurance Scheme because it is payable only to an employee who dies in harness. This is evident from the letter dated 27.03.1997 written on behalf of respondents which reads as under:-
"Kindly refer to your letter no. 117/PL/KVS/P/97 dated 24.02.1997 addressed to the Commissioner in connection with your request for sanctioning an amount of Rs.30,000/- pertaining to DLIS in respect of your wife late Smt. Pushap lata. We wish to inform you that DLIS is payable only to an employee who dies in harness. Your wife was granted pre-mature retirement w.e.f 17.7.1987 (forenoon) on medical grounds vide office order dated 04.08.1995. Where an employee dies after the retirement, no DLIS is admissible to the nominee."
It is this letter which has been challenged by the petitioners, but until the date of retirement is challenged and it is held that she was in service up to the date of her death, contrary view is not possible. Sanction order also indicates that the amount is payable to the legal heirs of the deceased which also supports the plea. So far as claim for interest is concerned, petitioners did not file the petition before retrial benefits were released in their favour and interest could be granted only if a principal is due. Even a suit for recovery of interest in which the principal amount has been paid is not generally maintainable. If that be so the same cannot be granted in writ jurisdiction. The petition is dismissed accordingly."
7) Appellants writ petitioners have appealed to us.
8) Sh.S.C Gupta, learned counsel for the appellants, submits that though entitled to justice, the appellants have been deprived of the same because of the technical approach adopted by the writ Court, ignoring the sufferings of the deceased and the appellants, who were otherwise entitled to the relief prayed for the writ petition.
9) Sh. K.L Sharma, learned counsel for the Sangathan, on the other hand, submits that Smt. Pushap lata had retired before her death and the appellants were, thus, disentitled to claim the amount under Deposit Linked Insurance Scheme, which would become payable if the employee had died in harness.
10) We have considered the submissions of learned counsel for the parties and perused their pleadings besides the records.
11) The crucial issue which falls for determination is, as to whether an employee would be deemed to have retired with effect from a date eight years anterior to alleged issuance of an office order directing retrospective retirement.
12) We have noticed from the pleadings of the appellants that they had set up a specific case in the writ petition that the alleged office order dated 04.08.1995 had not been served upon Smt.Pushap lata till she breathed her last on 17.1.1995. This specific averment of the appellants in their writ petition was neither denied nor any order placed on records to show the basis or the authority, which has issued this order. We are, thus, constrained to hold that this office order, even if there was one, had not been served on the employee till her death.
13) An employee who seeks premature retirement cannot be treated to have retired from the date of his/her offer to retire prematurely unless it is made known to him/her that his/her offer to go on premature retirement has been accepted by the employer, which retirement, unless otherwise provided in the Service Rules, would take effect from the date of actual retirement as such. The offer of an employee to retire before the actual date of superannuation would not fructify into a valid contract in the absence of any Service Rule to the contrary to take effect from the date of the offer.
14) Smt. Pushap lata, who had offered to proceed on premature superannuation because of her fatal disease, was not communicated the acceptance of her offer during her lifetime. She cannot, in our opinion, be treated not have died in harness, as urged by Sh. K.L Sharma. We are not impressed by the view taken by the learned Single Judge that Smt. Pushap lata had not attended her duty until her death, so the Sangathan had no option but to retire her w.e.f 17.07.1987. We are further not satisfied with the view taken by the learned Single Judge that absence of Pushap lata from July 1987, to November,1995 when she died, could not be treated as leave, as there was no provision for granting leave for such a long time. We do not find any justification in the view taken by the learned Single Judge because unless an employer issued an order of retirement or termination of a permanent employee, the employee continues to remain in service and cannot be presumed to have lost lien. No rule or service condition has been brought to our notice, which may justify the automatic loss of service in case of absence of an employee, though for reasons beyond his/her control. We further find that rather than appreciating the real pinch of the deceased and her successors, the learned Single Judge had adopted a hyper-technical approach, which, in our view, does not serve the ends of justice.
15) Jurisdiction under Article 226 of the Constitution of India and Section 103 of Constitution of Jammu and Kashmir is an extraordinary jurisdiction, which inherently vests in the High Court the powers not only to enforce fundamental rights, but for any other purpose too. These powers are wider than those of the Courts of Kings' bench in the United Kingdom. The Jurisdiction which is vested in the High Court under Article 226, is akin to the one, which the sovereign would exercise to do complete justice in a given case.
16) A Writ Court, is thus, required to be alive to the real pinch of the subjects so that the injured or aggrieved may leave the Court house with a feeling of having secured the real justice. Technical and restrictive approach, at the cost of real and substantial justice, may not, thus, be required in each and every case. Technicalities of law cannot come in the way of delivering complete justice to those who are found entitled thereto, keeping, of course, in mind, the philosophy of social justice as contemplated by the Preamble of the Constitution.
17) We cannot blink at the sufferings of Smt.Pushap lata which she had experienced and faced during eight long years, which the Sangathan took in responding to her request for premature retirement and in releasing her pay/dues to which she was otherwise entitled because of her disability to attend to her duties as a teacher, suffered by her not because of her own fault but because of her suffering from Scleroderma.
Rather than providing requisite help and solace to its employees suffering from such a fatal disease, the Sangathan had opted to maintain a significant disgraceful silence to the request of the suffering employee for proceeding on premature retirement. We do not accept the reasoning adopted by the learned Single Judge in declining relief to the writ petitioner, taking a technical vie of the matter and declining Deposit Linked Insurance Scheme money besides interest payable thereon to the appellants.
18) In view of our finding that office order dated 04.08.1995 had not been served on Smt.Pushap lata, we hold that she had not retired till her death and would be entitled to the salary and other dues, which would have been payable to her treating her to be in service till her death. We, accordingly, while setting aside the impugned judgment and allowing the appeal of the appellants, direct respondent nos. 1 and 2 to calculate the amount payable to the deceased treating her to be in service till her death and release the same to the appellants along with interest @6% per annum. Respondents are further directed to release an amount of Rs.30,000/- payable to the appellants under Deposit Linked Insurance Scheme along with interest @6% per annum from the date of death of Smt. Pushap lata till the amount is paid to the appellants. The writ petition of the appellants as also the appeal is accordingly, allowed with costs quantified at Rs.5,000/-
(Rupees Five thousand only.)