Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No. 15000 of 2015 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** Smt. Sunita Mali @ Singh Aged about 24 years Wife of Kartik Singh Daughter of Late Dibakar Mali Permanent resident of Village: Ektali (P), Beherapat P.O./P.S./District: Jharsuguda, At present residing At: Gopabandhupali, Ward No.3 P.O.: Rourkela-1, P.S.: Plantsite … District: Sundargarh. -VERSUS- 1. Union of India Represented through its Secretary Petroleum and Natural Gas Department New Delhi. 2. Indian Oil Corporation Limited Represented through its Deputy General Manager (H.R) Eastern Region, Gharihat Road (South) Kolkata – 700 068. 3. Senior Deputy Manager, Rourkela Depot Indian Oil Corporation Petitioner. W.P.(C) No.15000 of 2015 Page 1 of 16 AT./P.O.: Rourkela District: Sundargarh. … Opposite parties. Counsel appeared for the parties: For the Petitioner : Ms. Deepali Mohapatra and Sandeep Parida, Advocates For the Opposite party No.1 : None For the Opposite party Nos.2 and 3 : M/s. Debaraj Mohanty, Abhilash Mishra, and Bed P. Panda, Advocates P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 27.03.2025 :: Date of Order : 27.03.2025
Decision
ORDER Approached this Court by way of filing this writ petition the Petitioner sought to invoke jurisdiction under Articles 226 and 227 of the Constitution of India with the following prayer(s): “It is therefore, prayed this Hon’ble Court may graciously be pleased to issue Rule NISI to the opposite parties and if the opposite parties will fail to show cause or shown insufficient cause made the said Rule absolute by directing them to release the terminal benefit of the father of the petitioner under Annexure-6 in an early date in W.P.(C) No.15000 of 2015 Page 2 of 16 favour of the petitioner, and may pass any other appropriate order or orders or direction or directions for the ends of justice; And for this act of kindness, the petitioner as in duty bound shall ever pray.” 2. The father of the Petitioner, namely, Dibakar Mali, working as Khalasi in the Rourkela Depot of the Indian Oil Corporation Limited (for short, “the IOCL”) since 1985 got promotion as Operator (Field) in the year 1992, died on 09.11.2011 (as per Death Certificate vide Annexure-4) due to illness. The mother of the Petitioner, namely, Golap Devi, predeceased her husband, was dead on 20.06.2004. 2.1. The Petitioner, being the only child of her parents, applied for grant of Legal Heir Certificate under the provision of the Odisha Miscellaneous Certificates Rules, 1984 and the Certificate as issued in her favour reads as follows: “From No.IV (See Rule 3) Office of the Tehsildar, Rourkela Miscellaneous Certificate Case No.1532, Date 25.04.2012 LEGAL HEIR CERTIFICATE This is to certify that the person/persons specified below is/are legal heir/heirs of Late Dibakar Mali (S/W/D/o) Sudarshan Mali is a native of Village-Behera Pata, P.S.-Jharsuguda, Dist-Jharsuguda, State-Odisha at the W.P.(C) No.15000 of 2015 Page 3 of 16 present resides at Gopabandhupali, Ward N-3, P.S.- Plantsite at Tehsil-Rourkela, Dist- Sundargarh in the State of Orissa as per the report of R.I. Raghunathpali and affidavit filed by the applicant. This certificate is being granted only for the purpose of withdrawl of Pension, Gratuity, GPF etc. Name Relationship with the deceased Sunita Mali Married daughter Age Years 22 Sd/- Tahasildar, Rourkela” 2.2. By dint of such certificate, the Petitioner applied for release of all the terminal benefits of her Late father, namely, Dibakar Mali before the Opposite Party No.2- Deputy General Manager (H.R.), Eastern Region, IOCL. However, vide Letter under Reference No.HR/ER/SEP- 20949, dated 21.09.2012, was issued by the Opposite Party No.2 with the following contents: “Sub.: Final settlement of terminal benefit on the death of Late Dibakar Mali Emp No 20949. Madam, With reference to your letter dated 16.05.2012 and your Advocate’s letter dated 29.08.2012, we now give below the amount of terminal benefits payable on the death of Late Dibakar Mali (Emp No-20949, Chargeman (F), Rourkela Depot. Payable amount: Gratuity - Rs. 10,00,000.00 W.P.(C) No.15000 of 2015 Page 4 of 16 Earned Leave Encashment Sick Leave Encashment PF SABF Pension Maximum pension per month against total annuity amount Rs.1780133.95. 13,639.00 - Rs. - Rs. 4,546.00 - Rs. 12,94,821.43 - Rs. 13,543.80 We also give below the amount recoverable from the nominee of Late Dibakar Mali towards outstanding dues: Recoveral Advance – Rs. 36,977.75 The above mentioned payable and recoverable amount is an approximate amount. This information is being furnished to enable you to apply for Succession Certificate from the Competent Court of Law for settlement of the terminal benefits of Late Dibakar Mali. Thanking You. Yours faithfully, For Indian Oil Corporation Ltd. (MD) Sd/- Dy. General Manager (HR), ER” 2.3. As the document sought to be furnished by the IOCL for the purpose of disbursement of terminal benefits of the Petitioner’s Late father, being not in conformity with requirement under any of the statutory provisions, the Petitioner approached this Court by filing this writ petition for issue of writ of mandamus. W.P.(C) No.15000 of 2015 Page 5 of 16 3. Ms. Deepali Mohapatra, learned counsel appearing for the Petitioner submitted that the Opposite Parties-IOCL have computed the amount of final settlement of terminal benefits as is apparent from the aforesaid Letter dated 21.09.2012. 3.1. It is pointed out by her that out of the amounts so settled, the IOCL has already disbursed in favour of the Petitioner, the amount of Provident Fund. Therefore, she would strenuously urged that despite no impediment for the IOCL to disburse rest of the amount towards Gratuity, Earned Leave Encashment and Sick Leave Encashment in favour of the Petitioner, the same ought not to have been retained on flimsy ground. 4. Mr. Debaraj Mohanty, learned counsel appearing for the Opposite Party Nos.2 & 3 referring to the counter affidavit filed on 29.02.2016 submitted that it is fact that the IOCL has disbursed an amount of Rs.16,01,802/- towards Provident Fund dues in favour of the Petitioner. He vehemently contended that the Petitioner has not been disbursed with rest of the amount as the IOCL received a Letter dated 05.05.2012 from one Smt. Sita Mali claiming herself to be wife of the deceased Dibakar Mali. 4.1. In the said letter, it is argued by Mr. Debraj Mohanty, learned Advocate that, since said Smt. Sita Mali claimed W.P.(C) No.15000 of 2015 Page 6 of 16 to be the only legal heir and successor of Late Dibakar Mali, the Deputy General Manager (HR), ER, IOCL- Opposite Party No.2 is justified in insisting for submission of Succession Certificate in order to avoid future complications. 5. Scrutiny of Legal Heir Certificate issued by the Tahasildar, Rourkela under Annexure-5, it transpires that the Petitioner-Sunita Mali was shown to be married daughter of Late Dibakar Mali and such certificate stated to have been granted “for the purpose of withdrawal of Pension, Gratuity, GPF etc.” 5.1. In paragraph-3 of the counter affidavit submitted by the Opposite Party Nos.2 & 3, it is conceded by the IOCL that amount of Provident Fund dues was disbursed in favour of the petitioner as she was nominee for said purpose. Hence, in the considered opinion of this Court merely because a stranger, namely, Smt. Sita Mali claimed to be wife of deceased Dibakar Mali without placing any evidence, the Opposite Parties should not have bound their hands by restraining themselves from releasing rest of the amounts of the final settlement of terminal benefits. As if the onus to prove lay on the married daughter, namely, Sunita Mali (Petitioner), the Opposite Party No.2 insisted for Succession Certificate. W.P.(C) No.15000 of 2015 Page 7 of 16 5.2. It is trite that person who asserts the fact, is required to prove. Since Sita Mali who claims to be wife of deceased Dibakar Mali, without placing cogent evidence for such fact, the opposite parties are at fault in resting onus on the petitioner, who by placing Legal Heir Certificate demonstrated that she is the only daughter and thereby could successfully shift the burden on Sita Mali. 5.3. Ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side. [See, Anil Rishi Vrs. Gurbaksh Singh, (2006) 5 SCC 558]. 5.4. Reference may be had to Subhra Mukherjee Vrs. Bharat Coking Coal Ltd., (2000) 3 SCC 312 : 2000 SCC OnLine SC 534 wherein the following observation is found: “There can be no dispute that a person who attacks a transaction as sham, bogus and fictitious must prove the same. But a plain reading of Question 1 discloses that it is in two parts; the first part says, “whether the transaction in question is a bona fide and genuine one” which has to be proved by the appellants. It is only when this has been done that the respondent has to dislodge it by proving that it is a sham and fictitious transaction. When the circumstances of the case and the intrinsic evidence on record clearly point out that the transaction is unnecessary for the court to find out whether the fide and genuine, is not bona it W.P.(C) No.15000 of 2015 Page 8 of 16 respondent has led any evidence to show that the transaction is sham, bogus or fictitious.” 5.5. The initial burden of proof which lay upon the person asserting the fact is required to prove a fact by discharging merely placing a preponderance of probabilities. When the explanation offered by the said person with regard to the fact in question and the evidence adduced in that behalf, the onus shifts back to the other person. [Reference may be had to CIT Vrs. Nipani Tobacco Stores, (1984) 145 ITR 128 (Pat); H.H. Maharaja Shri Jyotindrasinhji Vrs. Assistant CIT, (2010) 326 ITR 594 (Guj). 5.6. Further reference may be had to Mittal & Co. Vrs. CST, (1988) 69 STC 42 (All); K.V. Mohamad Vrs. STO, (1998) 109 STC 530 (Ori) wherein it has been laid that the initial onus to establish that no sale was made is on the assessee. For establishing a negative fact, no evidence need be adduced. When the assessee denied the factum of sale, the onus shifts to the Revenue to disprove the contention of the assessee. 5.7. With the aforesaid ratio, it can safely be said that mere acting on a letter of a stranger, the opposite parties should not have stalled the process of disbursement of terminal benefits to the legitimate legal heir who has laid evidence. In absence of any positive material particulars with respect to the fact that Sita Jaypuria @ Mali was W.P.(C) No.15000 of 2015 Page 9 of 16 the wife of Dibakar Mali, the opposite parties could not have retained the money as determined in the Letter under Reference No.HR/ER/SEP-20949, dated 21.09.2012. 5.8. The Hon’ble Supreme Court of India has been pleased to make it clear in Ayaaubkhan Noorkhan Pathan Vrs. State of Maharashtra, (2013) 4 SCC 465 with respect to “person aggrieved”: “9. to meddle It is a settled legal proposition that a stranger in any cannot be permitted proceeding, unless he satisfies the authority/ court, that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order, etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can, of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is the exercise of such extraordinary implicit in W.P.(C) No.15000 of 2015 Page 10 of 16 jurisdiction that the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same.” 5.9. Therefore, on the basis of a letter shot up by a stranger without putting forth any evidence demonstrating that he/she falls within the fold of connotation of “aggrieved person” no enquiry could be said to have been triggered to question the veracity of Legal Heir Certificate issued by the Tahasildar. 5.10. Another significant material as available on record has material bearing for the present case does deserve discussion at this juncture. 5.11. This Court on perusal of the material on record finds that a letter addressed to Register Judicial, High Court of Orissa, Cuttack, received in the Registry on 26.07.2016, contents of which reads as under: “To The Register (Judicial) Orissa High Court, Cuttack Sub.: For addition in the case No.WP(C) No.15000/2015 regarding fake objection in my name relating to Late W.P.(C) No.15000 of 2015 Page 11 of 16 Dibakar Mali, Ex-employee of Indian Oil Corporation Ltd. Respected Sir, Respectfully I am herewith sending my affidavit relating to the matter of Late Dibakar Mali and ex- employee of Indian Oil Corporation Ltd. and also submit that I was never married to Dibakar Mali but some miscreants have obtained my LTI and send a objection to Indian Oil Corporation Ltd. for necessary action without my knowledge and consent which I came to know from Sunita the nominee of Late Dibakar Mali and now clarify from my side that I am in no point of time was the wife of Late Dibakar Mali and I have no claim over the ex gratia amount of Late Dibakar Mali and the earlier objection in my name send to Indian Oil Corporation Ltd. shall be treated as cancelled and withdrawn with my no objection to receiving the ex gratia amount if any by Sunit Mali @ Singh D/o Late Dibakar Mali. This is for your kind information and necessary action at your end. Yours faithfully Sd/- L.T.I of Sita Jaypuria @ Mali (Sita Jaypuria @ Mali) Beherapat, PO: Ekatali P.S./Dist. Jharsuguda” W.P.(C) No.15000 of 2015 Page 12 of 16 5.12. An affidavit sworn to by Smt. Sita Jaypuria @ Mali before the Executing Magistrate, Jharsuguda is found enclosed to the aforesaid letter and the deponent was identified by Sri D.K. Pandey, Advocate on 23.07.2016, contents of which are reproduced hereunder: “I, Sita Jaypuria @ Mali, D/o Maohar Jaypuria, aged about 49 years, Occupation- Self employed, resident of Beherapat, P.O. Ekatali, P.S./Dist. Jharsuguda, do hereby solemnly affirm and state as follows: 1. 2. That, I am to declare that I have never filed any objection before Indian Oil Corporation Ltd. relating to the matter of Late Dibakar Mali, who was the ex- employee of Indian Oil Corporation regarding receiving of Ex gratia amount by Sunita Mali the only daughter of Late Dibakar Mali and the nominee. I am one That, at no point of time I was the wife of Late Dibakar Mali of Gopabandhupali, Rourkela, P.S. Plantsite, Dist. Sundargarh but without my consent and knowledge, as illiterate some miscreants have obtained my LTI without my knowledge and send the objection in my name which I came to know from Sunita D/o Late Dibakar Mali and now clarify accordingly that the objection if any send to Indian Oil Corporation Ltd. in my name is baseless and having no truth and I have no objection if Sunita Mali received all Ex gratia amount of Late Dibakar Mali from Indian Oil Corporation Ltd. 3. That, I swear this affidavit in order to file it before the Hon’ble High Court relating to case WP(C) No.15000/2015 and treat this affidavit as a piece of W.P.(C) No.15000 of 2015 Page 13 of 16 my evidence regarding my no relation and claim over any ex gratia amount of Late Dibakar Mali. That, the facts stated above are all true to the best of my knowledge and belief.” 5.13. With such affirmation and factual statement of Sita Jaypuria @ Mali, the objection for disbursement of rest of the amount as reflected in Letter under Reference No.HR/ER/SEP-20949, dated 21.09.2012, as stated to have been the settled dues of Late Dibakar Mali in favour of the petitioner would not pose impediment for disbursement of legitimate dues. It remains without any ambiguity in mind that such objection as apprehended by the IOCL authorities is without comprehension. 6. The learned counsel appearing for the Opposite Parties- IOCL did not dispute the following fact: i. ii. That the Petitioner is the legal heir of Late Dibakar Mali; That the final settlement of terminal benefit has been determined and communicated to the Petitioner in Letter dated 21.09.2012 under Annexure-6; iii. That amount of Provident Fund has already been disbursed and paid to the petitioner-Sunita Mali; W.P.(C) No.15000 of 2015 Page 14 of 16 iv. That the Letter of Sita Jaypuria @ Mali supported by affidavit reveals that she has “no claim over the ex gratia of the Late Dibakar Mali” and the objection sent to the IOCL “shall be treated as cancelled and withdrawn”. 6.1. Under such scenario and uncontroverted facts by the IOCL, there remains nothing but to hold that the petitioner is entitled to receive the rest of the amount as reflected in Letter under Reference No.HR/ER/SEP- 20949, dated 21.09.2012 (Annexure-6) issued by the Deputy General Manager, HR, Eastern Region, IOCL. 6.2. As the amount of Provident Fund has already been admitted to have been disbursed in favour of the petitioner, it is, therefore, felt expedient to direct the Opposite Party Nos.2 & 3 to release the rest of the amount determined as final settlement of the terminal benefits vide Letter dated 21.09.2012 (Annexure-6), within a period of eight weeks from today without insisting for production of succession certificate. 6.3. It needs to be emphasised that since the date of determination of amount settled as reflected in Letter under Reference No.HR/ER/SEP-20949, dated 21.09.2012, excluding the Provident Fund, rest of the amount(s) is stated to have been retained with the IOCL, the petitioner is entitled to interest on such amount. It W.P.(C) No.15000 of 2015 Page 15 of 16 is, hence, directed that the amount reflected in Letter dated 21.09.2012 under Annexure-6 (excluding the amount of Provident Fund) shall carry interest at the rate of 6% per annum from the date of settlement, if the actual payment is made within the aforesaid period, failing which the interest shall be calculated at the rate of 9% from the date of settlement till actual payment made to the petitioner. 7. With the aforesaid observation and direction, the writ petition stands disposed of. (MURAHARI SRI RAMAN) JUDGE Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Mar-2025 16:08:01 High Court of Orissa, Cuttack The 27th March, 2025//Laxmikant W.P.(C) No.15000 of 2015 Page 16 of 16