High Court
Case Details
1 W.P. (S) No. 1142 of 2013 [In the matter of an application under Article 226 of the Constitution of India] Sushana Ekka ........... Versus ... Petitioner 1. The State of Jharkhand through the Secretary 2. The District Welfare Officer, Gumla 3. The Accountant General, Jharkhand ............ ... Respondents
Legal Reasoning
: Mr. Satish Kr. Deo, Advocate For the Petitioner For Respondent no.3 : Ms. Richa Sanchita, Advocate ............ P R E S E N T HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR ............. By Court The petitioner has approached this Court seeking a direction upon the respondents for finalization of the Family Pension. 2. Heard counsel for both the parties and perused the documents on record. 3. The husband of the petitioner superannuated from service w.e.f. 31.12.1993. He was working on the post of Block Welfare Supervisor. The provisional pension to the husband of the petitioner was paid since, 2005 till the husband of the petitioner died on 20.02.2010. Thereafter, the respondents continued to pay only provisional Family Pension to the petitioner. 4. A counter-affidavit has been filed in which, it has been stated that, between the period 30.06.1986 and 31.12.1993, the husband of the petitioner did not discharge his duty. The pension paper and service book of the husband of the petitioner was forwarded to the office of the Accountant General vide letter dated 05.08.2005, which 2 was returned from the office of the Accountant General (A & E), Jharkhand vide letter dated 29.09.2005. It is also stated that in view of the order dated 19.12.2000 passed in C.W.J.C. No. 4226 of 2000 (R), the husband of the petitioner was paid Rs.5,285/- on account of GPF and provisional pension at Rs.499/- was fixed. 5. The learned counsel appearing for the petitioner has submitted that admittedly no departmental proceeding was initiated against the husband of the petitioner, who superannuated from service w.e.f. 31.12.1993. Though the husband of the petitioner died on 20.02.2010, respondent- authority did not finalize the pension of the petitioner and the husband of the petitioner as well and she continued to receive only provisional pension. 6. As against the above, the counsel appearing for the respondent- State reiterated the stand taken in the counter-affidavit and submitted that the husband of the petitioner did not discharge his duty from 30.06.1986 till he is superannuated from service on 31.12.1993. 7. From perusal of the documents on record, I find that, the respondents have not taken a stand that due to the alleged absence of the husband of the petitioner from duty, any departmental proceeding was initiated. It has also not been stated in the counter- affidavit that any decision with respect to the alleged absence from duty of the husband of the petitioner was taken by the respondent- authority. In view of the aforesaid, I am of the view that the respondents are not justified in making payment of only provisional 3 pension/ family pension to the husband of the petitioner and thereafter to the petitioner. Pension to an employee has been treated as a statutory right. 8. In “D.S. Nakara and Others Vs. Union of India”, reported in (1983) 1 SCC 305, a Constitution Bench of the Hon'ble Supreme Court has held as under, 28. “Pensions to civil employees of the Government and the defence personnel as administered in India appear to be a compensation for service rendered in the past. However, as held in Douge v. Board of Education a pension is closely akin to wages in that it consists of payment provided by an employer, is paid in consideration of past service and serves the purpose of helping the recipient meet the expenses of living. This appears to be the nearest to our approach to pension with the added qualification that it should ordinarily ensure freedom from undeserved want. Summing up it can be said with confidence that 29. pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on savings. One such saving in kind is when you give your best in the hey-day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered. In one sentence one can say that the most practical raison d’etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon. 4 31. From the discussion three things emerge: (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and clause (5) of Article 148 of the Constitution; (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the average emoluments drawn during last three years of service reduced to 10 months under liberalised pension scheme. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to retirement, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure.” 9. In view of the aforesaid discussion, I am of the opinion that denial of finalization of pension to the husband of the petitioner and family pension to the petitioner is not justified and therefore, the respondents are directed to finalize the pension of the husband of the petitioner and make payment of family pension to the petitioner along with arrears of pension, if any, within a period of eight weeks. JHARKHAND HIGH COURT, RANCHI Dated :– 17th December, 2013 R.K. / N.A.F.R. (Shree Chandrashekhar, J.)