IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.1924/2004 Bhagwat Prasad Tailor Vs. State of Rajasthan and Another Date of Order ::: 23.11.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Vigyan Shah, Counsel for petitioner Shri S.D. Khaspuria, Additional Government Counsel for respondents #### By the Court:-
This is a peculiar case in which petitioner-husband of deceased Munni Devi, a retired government servant, has approached this court claiming family pension as also payment of terminal dues of her wife who served respondents as ‘Dai’.
Contention of learned counsel for petitioner is that petitioner’s wife was appointed as ‘dai’ with Medical & Health Department of Government in the year 1960. She continued to serve respondents 24.12.1988. She became seriously ill and therefore could not attend her duties during last few years of her life. She died on 31.05.2000. Stand of respondents is that she was absent from duties from 25.12.1988 till her death on 31.05.2000 for about 11 years without any information to them, cannot be accepted because his wife applied for leaves from time to time on medical ground. Respondents have also not taken any disciplinary action against her for alleged absence. Even otherwise, absence of her wife can be a ground for disciplinary proceedings and not for withholding terminal/retiral dues of government servant. Learned counsel in this respect referred to Rule 86 of Rajasthan Service Rules. It is contended that petitioner submitted representation to respondents after death of her wife for payment of retiral dues and also requested for considering case of one of his sons for appointment on compassionate ground. Respondents sent reply to representation 28.09.2002 asking petitioner to produce relevant documents so that further action can be taken. They cannot now contend that no pensionary benefits can be paid to petitioner and that petitioner is not entitled to pension as per Rules.
Learned Additional Government Counsel appearing on behalf of respondents opposed writ petition nd submitted that petitioner is not entitled to any relief whatsoever. It was not a case where petitioner approached this court immediately after death of his wife. Petitioner’s wife died on 31.05.2000 and present writ petition was filed in the year 2004. In any case deceased employee Smt. Munni Devi had been absenting from her duties since 25.11.1988 without any information whatsoever to respondents. It is denied that any leave application on medical ground was ever submitted by her.
Even though it may be a fact that petitioner’s wife was in government service from 1960 and continued to serve respondents till 25.12.1988 but at the same time there is no explanation as to why she remained absent for a long period of 11 years. There is nothing on record as to what kind of ailment she was suffering from to prima-facie show that illness was such which completely rendered her unable to discharge duties. It is also not clear that as to when she attained normal age of superannuation of 60 years. All that stated is that she died on 31.05.2000. Nothing has been brought on record to show as to what efforts were made by petitioner after death of his wife, if her medical leaves were not sanctioned and if she attained age of superannuation prior to her death what efforts were made by him to claim pensionary benefits. Therefore now this delay of four years in filing writ petition would actually be delay of 15 years if it is counted from the date petitioner’s deceased wife abandoned service. Although it may be true that respondents did not initiate any disciplinary proceedings against her on the ground of her willful absence but at the same time, it is also a fact that this does not extend liberty to petitioner to claim what what not claimed by him already ans what was not prayed during her life time. However, there is no dispute regarding fact that deceased wife of petitioner served respondents for more than 28 years i.e. from 1960 till 24.12.1988.
In result, this writ petition is partly allowed. Respondents are directed to pay proportionate gratuity, GPF, due leave encashment of late Smt. Munni Devi, which shall be counted from the date of her initial appointment in 1960 till 24.12.1988 and make payment of same to petitioner within a period of three months from date a copy of this order is produced before them.
(Mohammad Rafiq) J.
//Jaiman//