Judgment · High Court · 2012

Heard Mr. M. Khan, learned counsel for the petitioner and Mr. B. Choudhury, lear ned standing counsel, Education Department appearing for the respondent Nos.1, 2 , 5, 6 and 7. Also heard Mr. B. Gogoi, learned standing counsel, Finance Depart ment appearing for the respondent No.3 and Mr. C. Baruah, learned counsel appear ing for the respondent No.4. This writ petition is another instance of neglecting a retired officer of the Go vernment of Assam in payment of the retiral benefit, who even during his lifetim e could not enjoy the retiral benefit. The husband of the petitioner, who retir ed from service on attaining the age of superannuation on 31st May, 2001 had to move from pillar to post, without any success, for getting the retiral benefit d uring his lifetime, which also has not been paid to his widow even now, though 1 1(eleven) years have elapsed from the date of retirement of the petitioner’s hus band from service. Ventilating the grievance of non payment of the retiral bene fit, namely the amount payable towards (i) Group Insurance Scheme (GIS); (ii) le ave encashment benefit and (iii) the arrear salary during the period of suspensi on, i.e. from 10th February, 1997 to 17th November, 1999, the petitioner, who is a widow, has approached this Court by means of the present writ petition. The notice was issued in the present writ petition vide order dated 2nd March, 2 012, on which date, the learned standing counsel, Education Department, Finance Department and the Accountant General have entered appearance on behalf of all t he respondents, fixing 30th April, 2012, on which date, a further opportunity wa s, however, granted to the Education Department to file the necessary affidavit, as last chance, as prayed for, with the observation that no further opportunity shall be granted as the matter relates to the claim of retiral benefit of the p etitioner’s husband, who has retired from service on attaining the age of supera nnuation on 31st May, 2001. Despite the opportunity given, the respondents, exc ept the respondent No.4, did not file affidavit. Mr. Khan, learned counsel for the petitioner referring to the averments made in the writ petition has submitted that the amount due and payable to the husband o f the petitioner under the GIS as well as the leave encashment benefit, apart fr om the arrear salary for the period of suspension, i.e. 10th February, 1997 to 1 7th November, 1999 has not been paid, though the petitioner’s husband retired fr om service on 31st May, 2001. The learned counsel for the petitioner submits th at though the petitioner’s husband was placed under suspension vide order dated 10th February, 1997 and continued to be so up to 17th November, 1999, he was, ho wever, reinstated in service on the basis of the finding recorded in the departm ental proceeding, treating the period of suspension as on duty for all purposes vide order dated 18th November, 1999. According to the petitioner, during the p eriod of her husband’s suspension, he was not even paid the subsistence allowanc e for the period from 10th February, 1997 to 28th February, 1999 and was paid 25 % of the salary from 1st March, 1999 to 17th November, 1999, towards subsistence allowance. The averment made by the petitioner in the writ petition has not been denied by the respondents. The respondent No.4 in the affidavit-in-opposition filed has s tated that the relevant pay slip for the purpose of payment of the salary during the period of suspension has already been issued, apart from issuance of the or der dated 9th April, 2012 by the Accountant General for release of an amount of Rs.1,43,230/- being the cash payment of unutilized earned leave for 263 days. I t has also been stated that the payment under the GIS is the responsibility of t he department and the Accountant General has noting to do with the same. The del ay in issuing the authority for cash payment in lieu of the unutilized earned le ave has been explained by the Accountant General stating that the sanction order dated 15th September, 2010 issued by the Government of Assam was received by th e Accountant General’s office on 23rd September, 2010, which, however, could not be acted upon as the same was not accompanied by the certificate from the Finan cial and Accounts Officer, which having been received on 9th April, 2012, immedi ately the order authorizing the Director of Elementary Education to draw and dis burse the aforesaid amount was issued by the Accountant General’s office on 9th April, 2012. Mr. Baruah, learned counsel appearing for the Accountant General submits that th ere is no lapse on the part of the Accountant General in not passing necessary o rder facilitating payment of the amount towards the leave encashment benefit and arrear salary to the petitioner’s husband during his lifetime and thereafter, t o the petitioner after the death of her husband. It has also been submitted tha t it is now for the Government to pay the said amount to the petitioner. As noticed above, the other respondents have not filed the affidavit disputing t he claim of the petitioner relating to the entitlement to receive the amount und er the GIS as well as non payment of the arrear salary from 10th February, 1997 to 28th February, 1999 and 25% of the salary from 1st March, 1999 to 17th Novemb er, 1999. The Accountant General, as noticed above, in fact has admitted that th e salary for the aforesaid period from 10th February, 1997 to 17th November, 199 9 is to be paid, if not paid, apart from the entitlement of the petitioner’s hus band to the cash payment in lieu of unutilized earned leave for 263 days amounti ng to Rs.1,43,230/-. Mr. Choudhury, learned standing counsel, Education Department as well as Mr. Gog oi, learned standing counsel, Finance Department submit that in view of the orde r dated 9th April, 2012 issued by the Office of the Accountant General authorizi ng the Director of Elementary Education to draw and disburse the amount of Rs.1, 43,230/- towards the leave encashment benefit, the same shall be paid to the pet itioner apart from payment of the benefit under the GIS as well as the arrear sa lary, if any, payable for the period from 10th February, 1997 to 17th November, 1999. Having regard to the case as projected by the writ petitioner in the writ petiti on as discussed above, and also the submissions advanced by the learned counsel appearing for the parties, the Commissioner & Secretary to the Government of Ass am, Education (Elementary) Department as well as the Director of Elementary Educ ation, Assam are directed to pay the following amounts to the petitioner, within 1(one) month from today:- the amount payable under the Group Insurance Scheme; the arrear salary from 10th February, 1997 to 17th November, 1999; and Rs.1,43,230/- towards leave encashment benefit. (i) (ii) (iii) Since the petitioner’s husband, who was entitled to receive the said amount, has not been paid during his lifetime and the petitioner has also been deprived fro m enjoyment of the said benefit for last about 11(eleven) years, the said amount shall carry interest @ 12% per annum from the dates when those amounts were due and payable to the petitioner’s husband till the date of payment within the afo resaid period of 1(one) month. It would be the responsibility of the aforesaid 2 (two) officers to ensure payment to the petitioner. The Commissioner & Secretary , Education (Elementary) Department as well as the Director of Elementary Educat ion, Assam shall within 45(forty-five) days from today file the proof of such pa yment with the Registrar General of this Court, who thereafter, shall cause regi stration of a Misc. Case and place it before this Court for necessary order. The writ petition is accordingly allowed.