Sushila Devi vs The State of Bihar and Others

Radha Mohan Prasad, J.—In this writ petition, grievance of the Petitioner is that the period of service from 1.10.1974 to 31.12.1988 has illegally and arbitrarily not been counted for the purpose of fixation of his pensioner benefits. Accordingly a prayer has been made to issue appropriate writ/direction commanding the Respondents to calculate the family pension and gratuity after taking into account the said period and pay the difference of family pension and gratuity.

In short the relevant facts are that Petitioner''s husband was appointed in the Agriculture Department, Government of Bihar on 11.11.1954. He, however, absented himself during the aforementioned period without sanction of any leave and attained the age of superannuation on 31.12.1988. Husband of the Petitioner died on 7.12.1995 without getting any pensionary benefit. Earlier Petitioner had filed C.W.J.C. No. 12321 of 1996 in this Court with a prayer to command the Respondents to make payment of the post-retiral dues, such as, arrears of pension, gratuity, General Provident Fund as well as family pension with interest and cost. This Court disposed of the said writ petition vide order dated 27.3.1997, contained in Annexure-5 directing the authority to get the entire post-retiral dues including family pension payable to the Petitioner finalised and to pay the same with interest @ 14% per annum over the admitted dues found payable except on the G.RF. over which he was held entitled for penal interest @ 14% which would include statutory interest besides cost of Rs. 2,000/-. However, when the said order was not complied she filed M.J.C. No. 1576 of 1997 whereafter she was paid the said dues with interest and cost but the services of her husband during the aforementioned period from 1.10.1974 to 31.12.1988 was not counted for fixation of his pensionary benefits on account of his unauthorised absence. This Court vide order dated 12.4.1999 in the facts and circumstances did not find any reason to proceed in the matter further. However, the Petitioner was given liberty to challenge the said order before the appropriate authority/court of law, whereafter she has filed the present writ application.

In the counter affidavit filed on behalf of Respondent No. 2 it is stated that the Department after verification of the. records came to the conclusion that the deceased husband of the Petitioner was on unauthorised absence from duty and absconding from duty from 1.10.1974 to 31.12.1988 i.e. till the date of retirement A.G., Bihar has also no knowledge about the aforesaid period. It is also submitted that the Petitioner has not submitted any evidence of her claim regarding the continuation of her husband in Government service from 1.10.1974 to 31.12.1988. Keeping in view of all the above facts the Department has held the period from 1.10.1974 to 31.12.1988 as breakage in service of the Petitioner''s husband. It is, thus, submitted that there is no question of regularising the said period and giving retirement benefit after computing the aforesaid period.

This Court is unable to appreciate the said stand of the Respondents in the. counter affidavit. It is not in dispute that no action was ever taken for the aforementioned alleged unauthorised absence of the Petitioner''s husband. This Court long back in the case of Sobhana Das Gupta v. State of Bihar, reported in 1974 P.L.J.R. 382 declared Rule 76 of the Bihar Service Code, which laid down that absence from duty without leave for a period of five years would result the employment of the Government servant coming to an end, ultra vires. It was held that the said Rule does not envisage passing of any order and that the cessation of service is automatic as a consequence of applicability of the Rule which excludes the applicability of Article 311 of the Constitution. That part, of Rule 76 was struck down as invalid in the said case.

Thus, there cannot be any doubt that Petitioner''s husband continued in service till he attained the age of superannuation. Rule 150 of the Bihar Pension Rules deals with the method of calculation for payment of compensation pension, invalid pension for superannuation pension and clause (c) provides that for the purpose of the said Rule and the Schedule, "average pay" means the average, for the last three years of service of the monthly substantive pay which the Government servant concerned drew or would have drawn in the permanent post held by him substantively prior to his discharge or retirement.

In the case of Kameshwar Jha v. State of Bihar and Ors. reported in 1999 (3) B.LJ. 857 : 2000 (1) PLJR 201, in more of less similar circumstances relying upon the decision of the Apex Court in the case of M.L. Jain and Another Vs. Union of India and Others, held that pensionary benefits have to be calculated on the basis of the last ten months salary drawn by the Petitioner which obviously if no salary was drawn for the absence of the Petitioner''s husband due to unauthorised absence his pensionary benefits cannot be computed on the basis of the salary which he would have drawn during the period of unauthorised absence. But according to the said decision there cannot be any dispute that for the purpose of computation regarding entitlement/eligibility of the pensionary benefits, the period of unauthorised absence cannot be ignored so long his services is not terminated.

Thus, this writ petition is disposed of with a direction to the Agriculture Production Commissioner (Respondent No. 2) to revise the said pensionary benefits and issue revised sanction order accordingly within two weeks of the receipt/production of a copy of this order. The Accountant General (Respondent No. 5) is directed to issue necessary revised authority slip within a week of the receipt of the revised sancjian order.