Aparna Bhattacharjee v. The State of Assam and 5 Ors

ORDER

19.06.2023.

¶1Heard Mr. N. Dhar, learned counsel for the petitioner. Also heard Mr. P. N. Sarma, learned Standing Counsel for the Elementary Education Department representing the respondent Nos. 1, 2, 3, 5 and 6 and Mr. S. R. Baruah, learned State Counsel representing the respondent No. 4.

¶2The petitioner is before this Court claiming family pension on the death of her husband namely Late Kaushik Bhattacharjee. It is her further case that her husband was also not paid any pension during his life time.

¶3The respondent authority has taken a stand that the husband of the petitioner while posted as I/C Headmaster of Alombag B.T. M.E. School, Cachar district, Silchar, had misappropriated government funds and accordingly a criminal investigation was initiated against him. Such Page No.# 3/5 criminal investigation ended in filing charge-sheet, however, during pendency of the trial, the husband of the petitioner had expired.

¶4The stand of the Government is that the husband of the petitioner was not paid the pension for the reason of pendency of the aforesaid criminal proceeding as well as for the reason that the husband of the petitioner had misappropriated the government funds.

¶5Coming to the criminal proceeding, as the husband of the petitioner has in the time expired, the power under Rule 21 of the Assam Services (Pension) Rules, 1969 cannot be exercised by the employer in the given facts inasmuch as even in a case where the criminal proceeding is pending, it is a bounded duty under Rule 22, of the pension Rules, 1969 to atleast pay the provisional pension till such proceeding attains finality.

¶6In the case in hand, as the husband of the petitioner has in the meantime had expired and no departmental proceeding was initiated during his service period or even thereafter, therefore, such power under Rule 21 of the Rules, 1969 cannot be exercised by withdrawing the pension inasmuch as in absence of any determination fixing any liability upon the husband of the petitioner, no recovery can be made for the alleged misappropriation. Therefore, the husband of the petitioner shall be entitled for his pension and other pensionary benefits from the date of his retirement till the date of his death.

¶7At the same time, as the husband of the petitioner was himself entitled for the pension in the given facts of the present case, the natural corollary is that the wife i.e. the present petitioner cannot be deprived of Page No.# 4/5 the family pension for such reason, if she is otherwise entitled under the Assam Services (Pension) Rules, 1969.

¶8The respondent has also taken a stand that the husband of the petitioner has misappropriated an amount of Rs. 11,50,773/- and they are seeking to recover the same from the pension, however, such course of action is not permissible in view of the determination made herein above.

¶9Now another ground of the department is that the husband of the petitioner also took way his service book, therefore, the employer is not having the copy of such service book. Therefore, the pension proposal has not been initiated.

¶10The State respondents has also taken a stand that the service book is being re-constructed and once the service book is properly re-constructed, the pension proposal of the petitioner shall be forwarded to the Director of Pension.

¶11In view of the aforesaid determination and in view of the stand of the respondent that the service book can be re-constructed within a period of one month, it is directed that the respondents more particularly, the Director of Elementary Education Department, shall do the needful for re-construction of the service book of the husband of the petitioner and same be completed within a period of one month from the receipt of the certified copy of this order to be furnished by the petitioner.

¶12This Court expects that such pension proposal shall be finalized as expeditiously as possible and not beyond three months from the re-construction of the service book. Page No.# 5/5

¶13With the aforesaid reasons, decision and directions, this writ petition stands disposed of.

JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010055732020 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/1785/2020o APARNAoBHATTACHARJEEo W/O.oLT.oKAUSHIKoBHATTACHARJEE,oVILL.oUTTARoHATKHALA,oP.O.o KANAIBAZAR-788724,oDIST.oKARIMGANJ,oASSAM. VERSUSo THEoSTATEoOFoASSAMoANDo5oORS.o REP.oBYoTHEoCOMM.oANDoSECY.oTOoTHEoGOVT.oOFoASSAM,oEDUCATIONo (ELEMENTARY)oDEPTT.,oDISPUR,oGUWAHATI-781006. 2:THEoCOMMISSIONERoANDoSECY. oTOoTHEoGOVT.oOFoASSAM oEDUCATIONo(ELEMENTARY)oDEPTT. oDISPUR oP.O.oGUWAHATI-781006 oASSAM. 3:THEoDIRECTORoOFoELEMENTARYoEDUCATION oASSAM oKAHILIPARA oGUWAHATI-781006. 4:THEoDIRECTORoOFoPENSION oASSAM oHOUSEFEDoCOMPLEXo(NEWoBUILDING) oDISPUR oP.O.oGUWAHATI-781006 oASSAM. 5:THEoDISTRICToELEMENTARYoEDUCATIONoOFFICER Page No.# 2/5 CACHAR DISTRICT P.O. SILCHAR-788001 ASSAM. 6:THE BLOCK ELEMENTARY EDUCATION OFFICER SALCHAPRA BLOCK P.O. SALCHAPRA-788025 DIST. CACHAR ASSAM Advocate for the Petitioner : MR. N DHAR Advocate for the Respondent : SC, ELEM. EDU BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY