Jharkhand High Court
Mithilesh Kumar vs State Of Jharkhand & Ors. on 20 March, 2009
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 1413 of 2006
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Mithilesh Kumar Petitioner
Versus
The State of Jharkhand and others Respondents
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CORAM: HON'BLE MR. JUSTICE D.G.R. PATNAIK
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For the Petitioner: Mr. Ashutosh Anand, Advocate
For the Respondent State: Sr. SC-II, Ms. Nehala Sharmin, JC to A.Allam, Sr.Advocate
For the Respondent No. 5: Mr. Sudarshan Srivastava, Advocate
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CAV ORDER
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Reserved On: 26.2.2009 Pronounced On: __20.03.2009
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6. 20.3.2009Prayer in this writ application has been made for issuance of a direction upon the respondents to pay to the petitioner death-cum-retiral dues with interest which was payable in the account of the petitioner's father late Bindhyachal Prasad, who was an employee under the respondent State Government and who died in harness on 27.8.1975 while working as Supervisor Grade III under the respondent no. 4, Executive Engineer, Mechanical Division, Palamau.
2. Petitioner's case in brief is that his father late Bindhyachal Prasad was employed initially as an Assistant Store Keeper on 6.8.1965. He was subsequently promoted to the post of Time Keeper on 3.11.1966 and thereafter promoted to the post of Supervisor Grade III. He died in harness while working under the Executive Engineer, Irrigation Department, Mechanical Division, Palamau on 27.8.1975.
After the death of his father, the petitioner along with his mother and other members of his family settled at his native village at Gopalganj. Several representations were filed by the petitioner before the concerned authorities of the respondents for his appointment on compassionate grounds and also for payment of death-cum-retiral dues which was payable to his deceased father.
Thereafter, the petitioner's mother died on 14.12.1991. After the death of both of his parents, the petitioner and his two brothers namely, Tarkeshwar Prasad and Awadhesh Kumar and one married sister Shashi Bala were left as the surviving members of the family. The petitioner thereafter on being directed obtained succession certificate (Annexure-2) on 16.6.1992.
Claiming that the surviving legal heirs of late Bindhyachal Prasad namely the petitioner and his two brothers and sister were entitled to receive the retiral dues, the petitioner, having obtained authority from his two brothers and sister, moved again before the respondent authorities for payment of the same. A representation together with affidavit annexing therewith the succession certificate was filed on 17.6.1992. In response, the petitioner was informed that the service book, leave account and pay revision statements of his deceased father were wanting in the office of the respondents and as soon as the documents are obtained, the payment in respect of death-cum-retiral dues of his late father, will be made to the petitioner.
23. The petitioner ran from pillar to post for payment of the death-cum-retiral dues of his late father and after hectic efforts, he could manage to get the completed service records of his late father and hand over the same to the respondents on 27.01.2004 along with other relevant documents, for payment of retiral dues. When in spite of receipt of the entire service records, no payment was forthcoming, the petitioner moved before the Patna High Court in writ application vide CWJC No. 9408 of 2005. Pursuant to the writ application, the Accountant General (A&E), Bihar, Patna vide his letter requested the respondent no. 4 to take steps for payment of the death-cum-retiral dues of late Bindhyachal Prasad and to send the requisite sanction to the office of the Accountant General (A&E), Jharkhand, Ranchi for making payment to the petitioner. Yet, the respondent no. 4 did not take any step in this regard. It is under these circumstances, the present writ application has been filed by the petitioner.
4. A counter-affidavit has been filed on behalf of the respondents. In their counter-affidavit, respondents have admitted that the petitioner's father late Bindhyachal Prasad was appointed under the respondents in the office of Executive Engineer, Irrigation Department, Mechanical Division, Palamau and he died on 27.8.1975 while working as Supervisor Grade III. The stand taken by the respondents is that the petitioner's father was working in the Work Charged Establishment and as such, his dependents were not entitled either for appointment on compassionate grounds or for getting benefits of family pension, gratuity and group insurance, etc. Nevertheless, a cheque bearing no. A/4 186643 dated 1.9.2006 amounting to Rs. 2760=00 which was assessed as legitimate dues payable in the account of the deceased employee, was prepared and the petitioner was intimated to collect the same, but the petitioner did not turn up to collect the cheque.
5. From the rival submissions of the parties, the undisputed facts, which emerge, are that the petitioner's father late Bindhyachal Prasad was employed under the respondent State as Work Charged Employee on the post of Assistant Store Keeper on 6.8.1965. He remained in continuous service since the date of his appointment and was promoted to the post of Supervisor Grade III with effect from 5.10.1970. His services were transferred from one station to another within the same Department and ultimately, on 27.8.1975 he died in harness after completing more than 10 years of continuous service. Claim for payment of the death-cum-retiral dues as well as grant of compassionate appointment was made on behalf of the petitioner soon after the death of his deceased father.
6. From the stand taken by the respondents, it appears that despite the fact that the petitioner's father was inducted in the services of the respondents way back in August 1965 and had rendered continuous service for more than 10 years in the Work Charged Establishment, yet no effort was made by the respondents to regularize him in the services in the permanent (regular) establishment.
7. The issue relating to the claim of retiral benefits including family pension, leave encashment, provident fund, etc in respect of the work charged employee came up for consideration before the Full Bench of this Court in the case of Ram Prasad 3 Singh and another vs. State of Jharkhand and others [2005 (3) JLJR 38. Taking note of the relevant Rules / Guidelines framed by the State Government from time to time under which a separate category of work charged establishment were constituted apart from permanent establishment, temporary establishment and also taking note of the definition of work charged establishment as given in Rule 59 of the Bihar PWD Code, the court had observed that under Rule 59, the posts borne on work charged establishments which are required throughout the year for maintenance works, etc, or for a long indefinite period should be made permanent and included in the permanent establishment with the approval of the Government.
The Court also took notice of the notification issued by the State pertaining to the condition of service of the work charged employees in the Department, which is quoted here-under:
"Subject-Revised conditions of service of work-charged establishment.
The existing distinction between work-charged establishment, temporary and permanent establishment and daily labour as given in the P.W. Code and P.W.D. Accounts Code will be maintained but the conditions of service of work-charged establishment will henceforth be identical with those of temporary Government servants.
The posts in work-charged establishment which are of permanent nature, that is required for 12 months in the year and for long and indefinite period will be made permanent and included in permanent establishment and the men employed on these posts, having one year's approved service will be included amongst permanent Government employees. Details in this connection are being worked out and till this is done, the conditions of service applicable to temporary Government servants will apply to all work-charged posts. ["Vide F.D. Memo No. 1344 dated 4.2.1949]"
On the basis of the above Government notification in respect of the Condition of Service of the work-charged employees and also referring to the judgment of the Single Bench of the Patna High Court in the case of Tulsi Prasad Singh vs. State of Bihar and others [2001 (3) PLJR 15, the court had observed that the guidelines of the State Government vide its notification dated 4th February 1949 related to condition of service of the work-charged employees and posts in connection with the affairs of the State and such guidelines, are deemed to be a Rule framed under proviso to Article 309 of the Constitution of India. While making its observation, the court had obtained support of its view from the judgment of the Supreme Court passed in SLP No. 1235 of 2002.
After considering all the aspects of the issue raised in respect of the demand for retiral benefits and pension of the work charged employees, the Full Bench of this Court in the case of Ram Prasad Singh (Supra) has held that in the following terms:
i. The work charged employees, who have completed more than five years of continuous service against one post in the work charged establishment and otherwise eligible, have a right of consideration of their cases for taking over their services in the permanent (regular) establishment, irrespective of their dates of appointment.4
But the work charged employees, working on daily wages, not holding any post, are not so entitled.
ii. The dependents of work charged employees are not entitled to claim appointment on compassionate ground and, iii. The work charged employees working against a post in regular scale of pay, on their retirement and after their death, their heirs / dependents are entitled to claim death- cum-retiral benefits, such as, pension/family pension, gratuity, leave encashment, etc. apart from G.P.F and Group Insurance amount, if otherwise fulfills the requisite qualifying period to earn pension, gratuity and leave encashment."
8. Accepting the directions contained in the judgment of the Patna High Court in the case of Tulsi Prasad Singh (Supra) which was upheld by the Supreme Court in the SLP No. 1235 of 2002, the State Government came out with the notification laying down qualifying period of continuous service against one post in the work charged establishment for taking over of their services in the permanent (regular) establishment and by subsequent notification, had fixed the cut off date of 21st October 1984 for absorption of the employees of the work charged establishment in the regular establishment. Following the above policy declaration of the State Government, several Departments including the Road Constitution Department had decided to consider the cases of all the work charged employees who were appointed prior to 21st October 1984 for taking over their services in the permanent (regular) establishment.
9. In the light of the above facts, the petitioner's father who had completed 10 years of continuous service prior to cut off date of 21st October 1984, he had certainly come within the zone of consideration for his absorption in the permanent (regular) establishment. To reiterate, the guidelines dated 4th February 1949 related to condition of service of the work charged employees and posts in connection with the affairs of the State, are deemed to be Rules framed under proviso to Article 309 of the Constitution of India and were therefore binding upon the State Government.
Furthermore, Rule 3 of Rule 59 of the Bihar P.W.D. Code which deals with the work charged establishment, lays down categorically that posts borne on work charged establishments which are required throughout the year for maintenance works, etc, or for a long and indefinite period should be made permanent and included in the permanent establishment with the approval of Government. In the light of the above Rules and Guidelines, and since admittedly, the petitioner's father after having rendered 10 years of continuous service in the work charged establishment, had come within the zone of consideration for absorption in the permanent (regular) establishment, it was the duty of the State Government to consider the case of the petitioner's father for absorbing him in the permanent (regular) establishment. If it was not done, no reason has been assigned by the respondents as to why the benefits of Rule have not been given to the deceased employee. The respondent State cannot therefore take a stand that since the deceased employee was working in the work charged establishment, his dependents are not entitled to claim retiral benefits of the employee.
510. The above finding / observation of the Court is a directive issued to the State Government and the same is binding upon the respondent State Government in all similar matters including the case of the present petitioner.
11. From the facts of the present case, it appears that both the parents of the petitioner have died and the surviving male family members of the deceased employee including the petitioner are major while the petitioner's sister is a married lady. It is apparent from the above that at present, nobody survives in the family of the deceased employee for claiming family pension. Further, had the petitioner's mother, who was the widow of the deceased employee and was certainly entitled to family pension, been alive, she could have been entitled for family pension including the arrears of family pension which on being released, could have constituted her stake and of which, the children of the deceased could be one of the beneficiaries. Other than the family pension, petitioner may also be entitled to other monetary benefits which was payable in the account of the deceased employee.
12. Considering the above facts and circumstances, the respondents are directed to make proper assessment of the retiral benefits and other monetary benefits which was payable in the account of the deceased employee, in terms of the guidelines and directive contained in the Full Bench Judgment of this Court passed in the case of Ram Prasad Singh (Supra) and after making such assessment, shall intimate the petitioner the amounts so assessed and shall pay the same to the petitioner, within three months from the date of this order.
With this observation, this writ application is disposed of.
(D.G.R. Patnaik, J) Ranjeet/A.F.R.