IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R 1) S.B. CIVIL WRIT PETITION NO.308/2003. Radhey Shyam Sharma Vs. Secretary UIT Ajmer & Ors. 2) S.B. CIVIL WRIT PETITION NO.4906/2004. Smt.Pushpa Sharma Vs. Secretary UIT Ajmer & Ors. Date of order : September 2, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Dr. Y.C. Sharma for the petitioners. Ms. Shashi Shekhawat for the respondents. **** BY THE COURT :-
Since controversy involved in both the writ petitions relate to petitioner late Shri Radhey Shyam Sharma, hence, they are being disposed of by this common order.
2) SBCWP No.308/2003 has been filed by husband-Radhey Shyam Sharma and SBCWP No.4906/2004 has been filed by wife-Smt.Pushpa Sharma.
3) In SBCWP No.308/2003, petitioner-Radhey Shyam Sharma prayed for a direction to the respondents to release his GPF amount, amount of State Insurance as well as Leave Encashment, Gratuity etc. along with interest @24% p.a. w.e.f. 1/8/2001 because he was superannuated from service on 31/7/2001. According to the petitioner, petitioner-Radhey Shyam Sharma in the meantime died on 24/3/2003 therefore the present petition is now being pursued by Smt.Pushpa Sharma and other legal representatives.
4) SBCWP No.4906/2004 has been filed by wife of petitioner-Shri Radhey Shyam Sharma, Smt.Pushpa Sharma aggrieved by the order dated 29/5/2004 (Ann.3) by which, respondents uniliterally revised retiral dues paid to her late husband and amended the order dated 11/2/2003 which was passed during his lifetime. By this order, respondents paid Rs.22,164/- when he was serving as LDC with the JDA which represented amount of his own contribution and that of the contribution towards fund by JDA and therefore said period cannot be counted towards qualifying period for calculating pensionary benefits to the petitioner. It is submitted that respondents have counted the period of service of Radhey Shyam Sharma only from 1/2/1986 till 31/7/2001 when he died and the earlier period of service which started from 8/7/1968 to 31/1/1986 was ignored. On that basis, his Gratuity was re-calculated and his selection scale was also recalculated thus, total of Rs.73,826/- was held recoverable from the petitioner. She was informed that she should deposit the aforesaid amount within 7 days so that steps be taken to sanction her pension.
5) Learned counsel for petitioner submitted that though all the benefits have been paid to the petitioner but with enormous delay on 29/5/2004 and therefore respondents be directed to pay interest on the delayed payment of dues which is wholly attributable to the respondents.
6) Learned counsel for petitioner argued that in SBCWP No.308/2003, entire dues were paid to the petitioner with enormous delay of almost three years whereas in SBCWP No.4906/2004, service period of the petitioner w.e.f. 8/7/1968 till 31/1/1986 has been completely ignored on the premise that for that period, he was Contribution PF Member and he was also issued contributory fund from the JDA. Learned counsel for petitioner has argued that even though this court vide order dated 28/7/2004 restrained the respondents from making any recovery and further directed not to deduct any amount from her family pension but the respondents are still deducting Rs.1275/- from the pension of the petitioner and that they are also not paying any dearnes allowance to the petitioner along with pension.
7) Learned counsel for respondents has opposed the writ petition and submitted that petitioner has already been paid a sum of Rs.9,22,693/- on 14/2/2003 which included the arrears of dearness allowance, house rent allowance, gratuity, CPF, Pension etc. out of which, Rs.1,21,151/- was deducted for the aforesaid reason. It is contended that petitioner having received the benefit of GPF for the period, he served JDA and that period of service cannot be counted towards qualifying period of service with the UIT Ajmer. Earlier period was rightly ignored and the benefits payable to the late husband of the petitioner were rightly re-calculated vide order dated 29/5/2004. There was an order by which mistake was rectified and therefore no notice was required to be served and no opportunity of hearing was required to be given. Learned counsel submitted that as per revised order, qualifying period of service of late husband of the petitioner with the respondent UIT Ajmer was only 15 years and 6 months and accordingly all the retiral dues payable to him have to be recalculated.
8) Learned counsel for petitioner has rejoined and submitted that Rs.9,22,693/- paid on 11/2/2003 was the amount which the respondents have to pay pursuant to the judgment of this court staying dismissal order of the late husband of the petitioner. It is submitted that CPF, Pension fund and Gratuity was amounting to Rs.1,21,158/- which is evident from the schedule appended to the reply filed by the respondents.
9) It is submitted that respondents could have at the best deducted CPF which was received by the late husband of the petitioner from JDA but since services of the late husband of the petitioner was transferrable from JDA to UIT Ajmer, there was no question of ignoring service towards qualifying period of pension.
10) Having heard learned counsel for parties and perused material on record, I find that the respodnents have passed an order on 29/5/2004 modifying their earlier order dated 11/2/2003 by which date of commencement of service of late husband of the petitioner was taken as 8/7/1968 and he was shown to have retired from service on 31/7/2001. Now in the revised order, date of commencement of his service has been treated as 1/2/1986. Resultant effect of this would be that an earlier period of service rendered by the late husband of the petitioner i.e. 8/7/1968 till 31/1/1986 has been ignored because he received a sum of Rs.22,164/- as CPF from the JDA. In the first place, this order has been passed without any opportunity of hearing to the original petitioner because he has already expired on 24/3/2003 even before passing of the aforesaid orders. Secondly, respondents could have at the maximum deduct the amount of Rs.22,164/- which the late husband of the petitioner received. So far as deduction of amount of CPF, Pension and Gratuity is concerned, that deduction is referred in Schedule appended to the reply filed by the respondents in SBCWP No.308/2003 which is in altogether different context when at the time of his reinstatement in July 2002 total of Rs.10,22,851/- was calculated which also included the amount of CPF, Pension Fund and Gratuity but since late husband of the petitioner was to retire from service, amount so in the Schedule has shown as deducted. Obviously, amount of CPF which late husband of the petitioner received from JDA has not yet been returned to the respondents. If at all late husband of the petitioner was member of CPF in JDA, respondents could have at the maximum required the late husband of the petitioner to deposit that amount with them at the time of settlement of his retiral dues. But that could not be a reason to completely ignore the services rendered by the late husband of the petitioner for the period from 8/7/1968 to 31/1/1986 and that too after he is no more. Therefore, impugned order has been passed without any opportunity of hearing to the petitioner whereas, respondents have committed enormous delay in making payment of retiral dues to the petitioner and that too while reducing the earlier qualifying period of service rendered by the late husband of the petitioner. Payment that was made on 11/2/2003 was the amount which the respondent had to make pursuant to the judgment of this court passed in writ petition filed by the late husband of the petitioner by which his dismissal order was set-aside and he was ordered to be reinstated in service with consequential benefits. Petitioner has therefore made out a case worth allowing.
11) Both the writ petitions are therefore allowed. Impugned-order dated 29/5/2004 is quashed and set-aside. Respondents would however be at liberty to recover from the petitioner Rs.22,164/-. Respondents shall re-calculate the retiral benefits payable to the petitioner in terms of earlier order dated 11/2/2003 and accordingly pay to the petitioner all retiral terminal dues of the late husband of the petitioner in terms of the aforesaid order. Petitioner to receive amount of Rs.22,164/- ever since 1986 when he was transferred to UIT Ajmer. Neither she be entitled to in the facts of the case any interest on the delayed payment nor respondents shall charge interest from her for while recovering the amount of Rs.22,164/- which amount shall have to be adjusted out of the arrears now payable to the petitioner. Petitioner shall be paid consequential amount of arrears in terms of the order dated 11/2/2003 earlier issued by the respondents and shall also be paid arrears of the DA if has not been paid so far along with family pension to her. All this payment shall be made to her within two months from the date copy of this order is produced before the Secretary UIT Ajmer. In case, aforesaid amount is not made within two months, petitioner shall be entilted to interest @6% p.a. for all the period throughout.
(MOHAMMAD RAFIQ), J.
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