Allowed

Neeta v. State of Hp and Ors.

Himachal Pradesh HC4 Sept 2023CWP/3809/2022

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh allowed a writ petition seeking family pension. The petitioner, a widow, claimed arrears from her husband's death due to delayed regularization. The court held that pension is a constitutional right and ordered retrospective payment despite administrative conditions.

What did the court decide?

Respondents directed to grant family pension w.e.f. 11.03.2006 and release admissible arrears within three weeks, failing which interest @ 5% p.a. applies.

Neeta Vs State of Hp and Ors. — Pension and Retirement Benefits | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No. 3809/2022 Decided on: 04.09.2023

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Neeta …Petitioner

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Versus

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State of Himachal Pradesh & Ors. .…Respondents.

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Coram

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Ms Justice Jyotsna Rewal Dua, Judge.

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Whether approved for reporting?¹

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For the petitioners: Ms. Tanvi Chauhan, Advocate. For the respondents: Mr. Anup Rattan, Advocate General with Mr. Rajat Chauhan, Law Officer, for respondents No.1 to 4.

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Mr. Chitranajan Sharma, Advocate, for respondent No.5.

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Jyotsna Rewal Dua , J

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Petitioner is widow of late Sh. Brestu. She claims family

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pension from the date of death of her husband i.e. 11.03.2006.

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2. Facts

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The case set up by the petitioner is that:-

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2(i) Sh. Brestu-husband of the petitioner was engaged as

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Beldar on 01.01.1994 on daily wage basis in Himachal Pradesh Public Works Department (HPPWD) in Rohru Division. He worked continuously for 240 days in each calender year. On 11.03.2006,

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petitioner’s husband died in an accident while on duty.

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1 Whether reporters of the local papers may be allowed to see the judgment? yes

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2(ii) At the time of death of petitioner’s husband, his services were not regularized. On 24.12.2019, the respondents regularized/conferred work charge status upon him, retrospectively from 01.01.2002. The petitioner, represented to the respondents seeking retiral benefits/family pension.

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2(iii) On 14.06.2021, respondent No.5-Accountant General sanctioned family pension @ Rs.3500/- per month in favour of petitioner w.e.f. 12.03.2006 to 11.03.2016 and thereafter @ Rs.3500/- per month. However, the respondents-State did not release entire due and admissible family pension to the petitioner till date. Family Pension was released in favour of the petitioner only w.e.f. 29.08.2020 i.e. more than 15 years after the death of her husband.

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2(iv) With the aforesaid grievances, the petitioner has prayed for following substantive reliefs:-

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“a. That the action of the respondents in restricting the consequential benefits of the husband of the petitioner in any manner may kindly be quashed and the benefits of the deceased may be ordered to be released to the petitioner from due date with interest.

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b. The respondents be directed to release the family pension of the petitioner from due date i.e. 11.03.2006 with interest.

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c. The respondents be directed to pay the interest on DCRG and other benefits from due date @15% P.A.”

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3. During hearing of the case, learned counsel for the petitioner submitted that the respondents-State have released the other benefits to the petitioner and that the petitioner shall restrict her claim in the instant petition only to the claim of family pension simplicitor from due date.

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4. Heard learned counsel for the parties on the aforesaid restricted claim and considered the case file.

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4(i) It is not in dispute that husband of the petitioner was employed with the respondent-department on daily wage basis with effect from 01.01.1994 and he died in harness on 11.03.2006.

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4(ii) It is also not in dispute that respondents granted work charge status/regularization in favour of the petitioner’s late husband vide order dated 31.12.2019. The benefit was conferred upon him retrospectively w.e.f. 01.01.2002 upon his completion of 8 years of continuous service. Because of her husband’s retrospective regularization, petitioner became entitled to DCRG and other benefits. The DCRG, as per reply filed by the respondents, has been released in favour of the petitioner on 14.06.2021.

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4(iii) Dispute in the instant petition revolves around petitioner’s claim of family pension w.e.f. 11.03.2006 i.e. the date when her husband died. According to the respondents, family pension case of the petitioner was processed by them after relaxing

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condition of Rule 54(2)(ii) of the CCS (Pension) Rules, 1972 with the condition that the family pension shall be payable prospectively.

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4(iv) In somewhat similar facts & circumstances, an issue came up for adjudication before this Court in CWP No.6074/2021 (Rajan Kumar Vs. State of H.P. & Others), decided on 01.08.2023. The issue being whether the family pension is payable from the day it fell due i.e. death of employee or prospectively as has been sanctioned by the respondents. Issue was decided as under:-

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“4. Observations:-

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I have heard learned counsel for both sides on the question as to whether the arrears of family pension are to be paid to the petitioner from 17.02.2004-the date when the family pension fell due on account of death of his wife Smt. Sarla Devi.

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4(i). At this stage, it would be appropriate to refer to (2003) 1 SCC 184 (S.K. Mastan Bee Versus General Manager, South Central Railway and another). Learned Single Judge of the High Court had rejected the contention of delay put forth by the respondent Railways and granted pension to the petitioner with retrospective effect from the date it became due to her. The Division Bench though held that delay in approaching the respondents by the petitioner for grant of family pension was not fatal, but restricted the payment of family pension from the date of issuance of legal notice to Railways by the petitioner. The Apex Court in the facts of the case, held that it was for the Railways to have computed the family pension and offered the same to the wife of deceased employee as soon as it became due to her. Relevant para from the judgment is as under:-

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“6. We notice that the appellant's husband was working as a Gangman who died while in service. It is on record that the appellant is an illiterate who at that time did not know of her legal right and had no access to any

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information as to her right to family pension and to enforce her such right. On the death of the husband of the appellant, it was obligatory for her husband's employer, viz., Railways, in this case to have computed the family pension payable to the appellant and offered the same to her without her having to make a claim or without driving her to a litigation. The very denial of her right to family pension as held by the learned Single Judge as well as the Division Bench is an erroneous decision on the part of the Railways and in fact amounting to a violation of the guarantee assured to the appellant under Article 21 of the Constitution. The factum of the appellant's lack of resources to approach the legal forum timely is not disputed by the Railways. Question then arises on facts and circumstances of this case, the Appellate Bench was justified in restricting the past arrears of pension to a period much subsequent to the death of appellant's husband on which date she had legally become entitled to the grant of pension? In this case as noticed by us herein above, the learned Single Judge had rejected the contention of delay put forth by the Railways and taking note of the appellant's right to pension and the denial of the same by the Railways illegally considered it appropriate to grant the pension with retrospective effect from the date on which it became due to her. The Division Bench also while agreeing with the learned Single Judge observed that the delay in approaching the Railways by the appellant for the grant of family pension was not fatal inspite of the same it restricted the payment of family pension from a date on which the appellant issued a legal notice to the Railways i.e. on 1-4-1992. We think on the facts of this case inasmuch as it was an obligation of the Railways to have computed the family pension and offered the same to the widow of its employee as soon as it became due to her and also in view of the fact her husband was only a Gangman in the Railways who might

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not have left behind sufficient resources for the appellant to agitate her rights and also in view of the fact that the appellant is an illiterate. The learned Single Judge, in our opinion, was justified in granting the relief to the appellant from the date from which it became due to her, that is the date of the death of her husband. Consequently, we are of the considered opinion that the Division Bench fell in error in restricting that period to a date subsequent to 1-41992.”

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4(ii). In the instant case, petitioner’s wife-Smt. Sarla Devi died in harness on 17.02.2004. She was not given her legitimate due by the employer during her lifetime. Pursuant to the torch of litigation carried by the petitioner seeking his wife’s regularization from the due date, respondents No.1 to 4 passed office orders on 07.09.2018 and 15.09.2018. In these office orders, work charge status was conferred upon late Smt. Sarla Devi w.e.f. 01.01.2003. This entitled her to pension. In fact, in the order dated 15.09.2018 (Annexure P-5), respondent No.2 has himself directed for processing the case of the petitioner for release of pension by relaxing Rule 54(2)(ii) of CCS (Pension) Rules, 1972. Same position and recommendation was reiterated by respondents No.1 to 4 in their communication dated 03.07.2019 (Annexure R-3). It is not understandable as to on what basis, the respondents issued office communication/order dated 04.05.2022, approving the grant of family pension to the petitioner “subject to the condition that family pension shall be paid prospectively”. The petitioner became entitled to family pension on 17.02.2004, i.e. the date of death of his wife-Smt. Sarla Devi.

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4(iii). Rule 54(2)(ii) of the CCS (Pension) Rules, 1972 provides for medical examination of an employee before his actual joining the post. In view of the retrospective conferment of work charge status upon late Smt. Sarla Devi, the provision of this rule was relaxed by the respondents in her favour. However, the condition imposed while approving the family pension that same shall be payable only prospectively is not in consonance with law in the

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given facts. Family pension is payable to the petitioner on account of services rendered by his wife in the respondent-department. Petitioner, being her husband and legal heir, is lawfully entitled to the family pension that became due to him on account of death of his wife on 17.02.2004.

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4(iv). Learned counsel for respondent No.5-the Accountant General, H.P., Shimla submits that family pension is required to be paid to the petitioner from the date of death of his wife-Smt. Sarla Devi, i.e. 17.02.2004. He further submits that respondent No.5 in its communication dated 14.10.2022 (Annexure R-5/3) has already written to respondent No.2 to convey the approval for granting family pension to the petitioner from the date of death of Smt. Sarla Devi.”

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In light of above decision, facts of present case be examined. In the instant case the fact that petitioner’s husband was engaged as beldar in the year 1994 is not in dispute. He was not given his legitimate due by the respondents during his lifetime. He died in harness on 11.03.2006. It was in the year 2019 that the respondents conferred Work Charge Status upon petitioner’s husband with retrospective effect from 01.01.2002. The case was thereafter processed for grant of family pension to the petitioner by relaxing Rule 54(2)(ii) of the CCS (Pension) Rules, 1972 as medical examination of petitioner’s husband was not feasible. Respondents sanctioned family pension in favour of the petitioner on 14.06.2021 but release was ordered only w.e.f 29.08.2020. Prospective release of family pension cannot be countenanced. It was not the fault of late Sh. Brestu (petitioner’s husband) that he was denied work charge

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status during his life time. It is also not in dispute that he had worked w.e.f. 01.01.1994 continuously till his death on 11.03.2006. Family pension became due to the petitioner on the date of death of her husband.

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In SLP(C) Diary No.15448/2020 (R. Sundaram vs. The Tamil Nadu State Level Scrutiny Committee & Ors.), decided on 17.03.2023, Hon’ble Apex Court held that right to pensionary benefit is a constitutional right and as such cannot be taken away without proper justification. It is not a bounty, but right of the employee. Judgment in (2013) 12 SCC 2010 (State of Jharkhand & Ors. v. Jitendra Kumar Srivastava & Anr.) was referred to where, inter-alia, certain precedents were noticed to the effect that right to receive pension is akin to right to property. On that premise, a person cannot be deprived of his pension without authority of law. Relevant paras from the judgment read as under:-

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“11. Keeping in mind the submissions of both the parties, at the very outset we would like to state that the right to pensionary benefit is a constitutional right and as such cannot be taken away without proper justification as has been held in the case of State of Jharkhand & Ors. v. Jitendra Kumar Srivastava & Anr. (2013) 12 SCC 210. The relevant paragraph of the judgment is being extracted herein:

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“15. In State of W.B. v. Haresh C. Banerjee [(2006) 7 SCC 651 : 2006 SCC (L&S) 1719] this Court recognised that even when, after the repeal of Article 19(1)(f) and Article 31(1) of the Constitution vide Constitution (Forty-fourth Amendment) Act, 1978 w.e.f. 20-6-1979, the right to

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property no longer remained a fundamental right, it was still a constitutional right, as provided in Article 300-A of the Constitution. Right to receive pension was treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (Deathcum- Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court.

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16. The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognised as a right in “property”…Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.”

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12. Further, in the case of Dr. Uma Agarwal vs. State of U.P. (1999) 3 SCC 438, this Court held that the grant of pensionary benefits is not a bounty, but a right of the employee, and as such cannot be denied without proper justification.

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24. On the basis of the abovementioned discussions, we are of the opinion that both the impugned orders are liable to be set aside, and the Appellant is held to be entitled to the postretirement benefits accrued to him by way of his 38 year long service. The Respondent bank is directed to grant all postretirement benefits to the Appellant which were denied to him along with 6% Simple Interest on account of unnecessary withholding of payment, from the date the payment was due to the date of actual payment.”

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Denial of family pension to the petitioner from due date is, therefore, not in consonance with law.

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5. For all the aforesaid observations and reasons, this writ petition is allowed. Respondents are directed to grant family pension to the petitioner w.e.f. 11.03.2006, i.e. the date of death of her husband late Sh. Brestu. Due and admissible arrears of family pension be released to the petitioner within three weeks from today. In case the arrears of pension are not paid within the given time, the same shall carry interest @ 5% p.a. from due date till the date of payment.

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The writ petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any.

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Jyotsna Rewal Dua Judge

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04^th September, 2023 (rohit)

Neeta v. State of Hp and Ors.

Case brief

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Neeta v. State of Hp and Ors.

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