Sushila Devi and Others vs State of Bihar and Others

Navaniti Prasad Singh, J.—This writ petition is by the widow of late Rajendra Prasad claiming salary of her late husband for the period 02.01.1998 to 28.01.2004 when he died in harness. She further claims death-cum-retiral dues as well. In the writ petition, it is stated that petitioner''s husband had joined as an Assistant Teacher pursuant to letter dated 18.07.1984 on 25.10.1984. He was teaching in Primary School, Harna Hindi under Anchal-Jhajha now district-Jamui. It appears that on 17.05.1990, petitioner''s husband was taken seriously ill resulting in paralysis. Leave application was submitted. It took several years for the petitioner to be rehabilitated from paralysis. On 02.01.1998, petitioner, along with medical report, gave his joining before the then District Superintendent of Education, Munger as Jamui was then a sub-division of Munger. He was not issued with any letter accepting his joining as correspondences then started in between the officers whether after such a long medical leave, he could be permitted to join. While these correspondences were being done, the petitioner''s husband died of cardiac failure on 28.01.2004. Counter affidavits have been filed on behalf of the State and the Accountant General. In the counter affidavit of the State, the dates, as above, are not disputed. It is not disputed that petitioner''s husband gave an application for medical leave and, thereafter, gave his joining in the year, 1998. In the counter affidavit by the State, it is admitted that there were series of correspondences in between the offices and ultimately the petitioner, without joining, died.

A counter affidavit has been filed on behalf of the Accountant General stating that having received the service book of the petitioner''s husband, it was found that petitioner''s husband had joined service in 1984 and then applied for medical leave in 1990. Thereafter, the service book does not mention anything much less about his rejoining. The service, thus, being only of five and half years, petitioner''s husband would not be entitled to any retiral dues and the petitioner would not be entitled to any family pension as the minimum qualifying service is ten years.

Having heard the parties and considered the matter, in my view, though the Accountant General is correct in his stand, the legal position is otherwise. The Accountant General has spoken on basis of the records as before him. From the facts noted above, it would be seen that it is not in dispute that petitioner joined as an Assistant Teacher on a permanent post in the year, 1984. In 1990, he was taken seriously ill having been paralyzed. He informed the authorities and sought medical leave. It is not in dispute that in 1998, on the date noted above, he sought to join, gave a medical report but because of some inter-departmental confusion and correspondences, no formal joining order was issued. He died soon thereafter in the year, 2004.

In my view, two things are clear from the above facts. Firstly, there have been no proceedings whatsoever much less in terms of Rule 76 of the Bihar Service Code taken against the petitioner''s husband for his absence in between 1990-1998. Therefore, this period cannot be treated as a break in service. The second thing is that on 09.03.1998, he submitted his willingness to join which was forwarded for consideration though till his death on 28.01.2004, no formal order was issued permitting him to join.

In view of the aforesaid, there being no break in service and the petitioner having given his willingness to join and having appeared for joining, so long as his application was neither rejected nor allowed, he cannot be treated out of service. In this connection, I may refer to the case of Burn Standard Company Limited & another v. Tarun Kumar Chakraborty & others, since reported in : (2002) 10 SCC 585. In that case, an employee was being denied payment of wages on basis of no work no pay as he had not worked. The Apex Court clearly held that once an employee tenders his joining, unless for good reason he is not allowed to join and if no order is passed, it will be deemed that he was ready to work and, thus, he would be deemed in service and entitled to full remuneration. Similar is the view of this Court in the case of Satyadeo Mehta Vs. State of Bihar and others, . Similar are the views of the Apex Court in the cases of Union of India Vs. K.V. Jankiraman, etc. etc., and Nirmal Chandra Bhattacharjee and Others Vs. Union of India (UOI) and Others,

Thus, on the circumspect of facts noted above, it would be deemed that the petitioner''s husband was in service from 1984 to 1990 and without break in service to 1998 to 2004 when he died. The claim of petitioner for the death-cum-retiral dues would now depend on the facts so accepted by this Court.

From this, one other claim has been made by the petitioner. She claims that for the period 1998 to 2004, petitioner''s husband had to be paid full wages for the reason, as noted above. I think she is correct. As undisputedly petitioner''s husband had given his joining in the year, 1998 and he was not allowed to join though no order was issued restraining him, no order was issued permitting him to join and as per respondent''s own case, while correspondences were being exchanged, he died in the year, 2004. Thus, for this period, he shall be entitled to full remuneration.

In view of the facts aforesaid, the State and the Accountant General would calculate liability and pay the same to the petitioner at the earliest but not later than three months from today, the responsibility of which would be on the District Programmer Officer (Establishment), Jamui and the Accountant General. With these observations and directions, the writ petition stands disposed of.