Dismissed

Jyanti Munda v. The State Of Jharkhand Through Its Chief Secretary And Ors.

Jharkhand HC6 Nov 2019WPC/830/2016

Case brief

AI extract

What is this about?

The High Court of Jharkhand dismissed a writ petition seeking ex-gratia compensation for the husband who died during Panchayat election duty. The Court held no applicable circular existed at the time of death and refusal of compensation did not violate constitutional rights.

What did the court decide?

Writ petition dismissed; no direction for payment of compensation.

Jyanti Munda Vs The State Of Jharkhand… — Pension and Retirement Benefits | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P (C) No. 830 of 2016

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Jyanti Munda .…… Petitioner

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Versus

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1.The State of Jharkhand through its Chief Secretary.

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2.Inspector General of Police, Jharkhand Armed Police, Doranda, Ranchi.

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3.State Election Commissioner through its Chief Election Commissioner, Ranchi, Jharkhand.

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4.Deputy Commissioner cum District Election Officer, Khunti, Dist-Khunti.

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…… Respondents

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--------CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD ---------- For the Petitioner : Mr. Ashok Kumar Pandey, Adv. For the Respondents : Mr. Rupesh Singh, G.P-V.

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-----------

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9/Dated: 06^th November, 2019

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This writ petition is under Article 226 of the Constitution of India, whereby and whereunder the petitioner has sought for direction upon the respondent to pay ex-gratia compensation of amount of Rs.10,00,000/ in favour of the petitioner on account of death of her husband namely Jengra Munda who lost his life in election duty of Panchayat Election 2010 within the district of Giridih, Jharkhand.

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The brief facts of the case of the petitioner as per the pleading is that the husband of the petitioner was employed in State Auxiliary Police (SAP) as police driver no.377 who has given duty of Panchayat Election scheduled to be held sometime in the year 2010. The statement has been made that the husband of the petitioner initially got frightened to go to Giridih as because of the reason that Giridih district is dangerously naxals affected but since he was given direction to discharge the election duty, having no option he moved to join on the election duty but he died, F.I.R was instituted and the post mortem has also been conducted wherein no reason of death has been shown.

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The petitioner being the wife has made an application before the competent authority of the State Government to make ex-gratia compensation of lump sum amount of Rs.10,00,000/ but no decision having been taken on such representation the present writ petition has been filed.

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Mr. Ashok Kumar Pandey, learned counsel for the petitioner has advanced his argument by taking aid of the following grounds:

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(I) The petitioner is entitled to get ex-gratia compensation of amount of Rs.10,00,000/ in the light of the circular issued by the Urban Development Department as contained in Circular No.648 dated 20.03.2008.

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(II) The circular dated 27.05.2015 issued by the Finance Department of the State of Jharkhand has also considered that the decision to extend the benefit of ex-gratia compensation of lump sum amount in favour of the dependent of the deceased who died in course of discharge of election duty.

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(III) The Election Commission of India has also come out with a communication on 25.03.2014 whereby the claim is that decision has been taken by the Election Commission of India for making payment of Rs.10,00,000/ as the minimum amount to be paid to the next kin of the official in the unfortunate event of death of the official while on election duty and keeping the said decision of the Election Commission of India the State of Jharkhand through the Finance Department has come out with the circular dated 27.05.2015 incorporating the decision taken by the Election Commission of India as would appear from Claim No.4 of the said circular.

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(IV) Considering the similar situation of death, a Coordinate Bench of this Court in the case of Bachan Devi vs. Government of Jharkhand reported in 2018 1 JLJR 663 in W.P(S) No.2728 of 2015 decided on 03.07.2017 has passed order with a direction to make payment of compensation of amount of Rs.10,00,000/ to be paid in favour of the dependent of the deceased employee who has died in course of discharge of election duty but according to the petitioner the said benefit is not being extended.

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(V) The further contention has been made that even though the Panchayati Raj Department has come out with Circular No.33 dated 13.01.2011 but since there was a circular issued by the Urban Development Department on 20.03.2008 i.e. prior to death of the husband of the petitioner, the decision of Urban Development Department would be applicable for consideration of claim of the petitioner for payment of compensation irrespective of the fact that

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no circular has been issued by the Panchayti Raj Department on the date of death of the husband of the petitioner as because the circular has been issued by the Urban Development Department in the name of the Governor of State of Jharkhand and it binds all the department.

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Mr. Rupesh Singh, learned counsel for the State of Jharkhand by putting reliance upon the stand made in the counter affidavit submitted that the husband of the petitioner has died on 16.12.2010 but as on the date of death there was no circular for consideration in case of death of an employee who has died in course of discharge of election duty.

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The reliance placed by the petitioner upon the circular issued by the Urban Development Department dated 20.03.2008 cannot be made applicable with respect to the case of the petitioner since the petitioner admittedly has assigned to discharge his duty pertaining to the Panchayat Election and hence the claim for compensation is to be considered on the basis of the scheme as because it is ex-gratia lump sum compensation and as such if any decision by way of circular has been taken by the Urban Development Department, the same will not be applicable with respect to the Panchayati Raj Department.

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So far as reliance having been placed by the petitioner on the circular dated 27.05.2015 issued by the Finance Department of the State of Jharkhand that cannot be made applicable retrospectively and since husband of the petitioner has died on 16.12.2010, therefore, the circular dated 27.05.2015 cannot be taken into consideration for consideration of the claim of the petitioner for disbursement of the ex-gratia lump sum amount of Rs.10,00,000/ in her favour.

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So far as the reliance placed upon the communication issued by the Election Commission of India dated 25.03.2014 that will be also not applicable in case of the petitioner due to issuance of the aforesaid guideline which is subsequent to the date of death of the husband of the petitioner.

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The reliance having been placed by the learned counsel for the petitioner upon the judgment rendered by the Co-ordinate Bench of this Court in the case of Bachan Devi vs. Government of Jharkhand , the same is distinguishable on fact as because in that case the husband of the petitioner had been assigned to discharge election pertaining to the Lok Sabha conducted in the year 2009 and the Court has considered the effect of the Circular no.376 dated 04.11.2006 but since there is no circular governing

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with respect to the Panchayati Raj Department, the said judgment is not applicable on fact in this case.

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After having heard learned counsel for the parties and on appreciation of the rival submissions this Court while answering the issue having been agitated by the parties deem it fit and proper to deal with the issue of the applicability of the circular either of the Urban Development Department upon which the petitioner has tried to make out her case for getting the benefit of lump sum compensation.

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It is not in dispute that under the provision of Article 166 of the Constitution of India every State is the Government of the State, is conferred with the power to make out a business rule to govern business of the State or the different department of the State.

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In the light of the said provision the State of Jharkhand has come out with the rules of business wherein the allocation of business has been bifurcated in between the different department allocating the different work to be done by the departments. The Personnel Department of the State has been conferred with the power to make out rule make it the nodal department to make out rule. If the Personnel Department makes out a rule, the same binds every department making it applicable. If the Personnel Department is coming out with specific rule the benefit is to be extended to each employee irrespective of the departments. Here the admitted fact is that the petitioner is trying to derive the circular issued by the Urban Development Department i.e. circular dated 20.03.2008 because of the reason that the Panchayati Raj Department has not come out with any scheme for consideration of cases for extending the benefit of ex-gratia lump sum compensation.

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The question is if any circular having been issued by the Urban Development Department on 20.03.2008 which is prior to date of death of the husband of the petitioner can be made applicable?

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As has been reflected hereinabove, the nodal department i.e Personnel Department is to make out a rule and as such rule or the circular if issued by the Personnel Department that will be applicable to all employees irrespective of working in any department but herein the Urban Development Department has come out with circular dated 20.03.2008 is on record as has been annexed by the State respondent in the counter affidavit as Annexure-B. From its perusal it is evident that the said circular having been issued keeping the fact into consideration to compensate the employee

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if died in course of any death due to any assault, death due to accident or in case of disability or serious injury, meaning thereby that the said circular has been issued to compensate such employee if the election pertains to the urban local bodies. The other admitted fact as would appear from Annexure3 is that the Panchayati Raj Department has come out with the same circular dated 13.01.2011.

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Admittedly the date of death of the husband of the petitioner is 16.12.2010. It is also admitted case of the petitioner that as on the date of death of the husband of the petitioner there was no circular issued by the Panchayati Raj Department and therefore, the petitioner is trying to impress upon the Court on the basis of circular issued by the Urban Development Department.

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As has been stated hereinabove, the circular issued by the Urban Development Department is not applicable pertaining to election of the panchayat and admittedly on the date of death the Panchayati Raj Department is having no circular to the effect.

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The contention as has been raised by the learned counsel for the petitioner that even though there was no circular issued by the Panchayati Raj Department but in view of the circular issued by the Urban Development Department dated 27.05.2015 and after getting the fact into consideration again decision has been taken by the Election Commission on 25.03.2014 and in view of the said decision the petitioner is entitled to get lump sum compensation which has seriously been objected by the learned State counsel by submitting that the said circular cannot be made effective with retrospective effect.

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This Court is in agreement with the submission made by the learned State counsel in this regard on the ground that the circular if issued in the name of the Governor being executive instruction cannot be given effect to with retrospective effect as because the power to make retrospective application of law only vests upon legislation if made by the Legislature or the Parliament and therefore, the circular dated 27.05.2015 is not applicable in the case of the petitioner on the ground that the date of death is prior to the issuance of circular dated 27.05.2015.

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So far as the decision of the Election Commission of India dated 25.03.2014 is concerned, the same will also be not applicable on the ground of no retrospective application.

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Moreover, the decision of Election Commission of India cannot binds the State Government unless it is adopted and the adoption of the said decision is reflected in the circular dated 27.05.2015 which has already been held as not applicable on the ground of retrospectivity.

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In view of the aforesaid position of law as also on facts the contention of the learned counsel for the petitioner is not worth to be considered in view of the fact that all the circular have been dealt with the situation of a case of death either occurred due to extremists attack or immediate death due to accident or disability but herein the admitted case of the petitioner is that no such incident has taken place since death occurred in hospital and as would appear from the statement at paragraph 6 wherein specific averment has been made that the husband of the petitioner got frightened to go to Giridih which is seriously naxal affected but after knowing that he has been deputed to election duty to Giridih district he joined, which suggests that the death has occurred due to fear, however, the post mortem report which was conducted after institution of F.I.R does not reflect any reason of death but onus is upon the petitioner for getting positive direction in her favour by establishing a concrete case, further no writ can be issued on inference for payment of exgratia lump sum compensation.

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So far as applicability of the judgment/order passed in W.P(S) No.2728 of 2015, this Court in order to appreciate the contention of the learned counsel for the petitioner has called upon the original record of the said writ petition and after going across the same has found that the subject matter of election pertaining to the said case is of the Lok Sabha and admittedly for dealing with the situation the State of Jharkhand has come out with Circular no.376 dated 04.11.2006.

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In the said case the husband of the petitioner has died on 14.04.2009 which is subsequent to the circular dated 04.11.2006. The further fact as reflected in the said writ petition that the husband of the petitioner therein has died in hospital, but question herein is that whether the judgment is having binding effect, position of law is settled about binding precedence, if any ratio has been laid down but as would appear from the said order, no ratio has been laid down.

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Further every judgment cannot be universally applicable, rather it can only be made applicable depending upon the facts and circumstances governing each and every case individually.

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So far as facts of this case is concerned, admittedly the election on which the petitioner has been directed to render his duty pertains to Panchayat Election which is directly under the Panchayati Raj Department.

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It is admitted position herein that as on date of death of the husband of the petitioner there is no circular issued in this regard by the Panchayati Raj Department.

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In view of the aforesaid fact, the judgment upon which the reliance has been placed is distinguishable on fact as because of the aforesaid judgment, the Co-ordinate bench of this Court has passed an order on the basis of a circular dated 04.11.2006 which pertains to compensating the deceased subject to fulfilment of the condition assigned therein by making payment of ex-gratia lump sum compensation but since there was no circular issued by the Panchayati Raj Department as on the date of death of the husband of the petitioner, no similar direction can be passed putting reliance upon the order passed by the Co-ordinate Bench passed in W.P.(S) No.2728 of 2015.

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It is also not in dispute that the ex-gratia lump sum compensation can only be granted subject to decision taken by the State respondent by way of policy decision and in absence thereof, the writ Court cannot pass any such direction commanding the State respondent to make payment of ex-gratia lump sum compensation, as because the prime duty of the writ Court is to issue writ in the nature of command/mandamus to act in pursuance to the policy decision or the rules prevalent and in absence of the rules/policy decision by way of executive instruction, any direction would be passed by the High Court under the writ jurisdiction, the same will amount to exceeding the jurisdiction.

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In view thereof and in the entirety of the facts and circumstances of the case, this Court find no reason to pass positive direction in favour of the petitioner.

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Accordingly, the writ petition lacks merit and is hereby dismissed.

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Office is directed to send the record of the W.P.(S) No.2728 of 2015 to the concerned record room.

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(Sujit Narayan Prasad, J.)

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Saket/-

Jyanti Munda v. The State Of Jharkhand Through Its Chief Secretary And Ors.

Case brief

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Jyanti Munda v. The State Of Jharkhand Through Its Chief Secretary And Ors.

Case brief

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