SCA/2395/1995 of SHANTABEN LAXMIKANT JANI Vs DIRECTOR, on 11 December 1995

1. Whether Reporters of Local papers may beallowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether their Lordships wish to see thefair copy of the judgment?

4. Whether this case involves a substantialquestion of law as to the interpretationof the Constitution of India,1950 or anyorder made thereunder?

5. Whether it is to be circulated to theCivil Judge?

Mr. V.M.Raval for the petitioner

Mr. D.A.Bambania for the respondents.

����Coram: S.K. KESHOTE,J

�����(11-12-1995)

Heard the learned counsel for the parties.

2. The petitioner is the widow of late LaxmikantNarmadashanker Jani. Late Shri L.N.Jani was appointed aspeon on 4-4-1970 in Lunawada Arts, Science & CommerceCollege run by a trust named Lunawada Vibhag UchchVidyottejak Mandal. After completing about 16 years'service in the college, late Shri L.N. Jani was retiredfrom service on 13th November,1987. Before the pension andother terminal benefits could have been sanctioned Shri Janihad expired on 30th July, 1990. The petitioner who is thewidow of late L.N.Jani was entitled to family pension andaccordingly the family pension was sanctioned under orderdated 5-12-1991 by the the Director of Higher Education,Gandhinagar.

2. Out of the arrears of pension a sum of Rs.16,407.15

ps. was deducted stating to be excess payment of salarymade to late late L.N.Jani. When the petitioner hasrepresented the matter to the College and the Government forrefund of the aforesaid amount, she has been orally givenout that the service of her husband late L.N.Jani hadexceeded by one year and five months beyond the age of 60years and as such the amount of salary which has been paidto her husband for the aforesaid excess period was requiredto be deducted.

3. This court had issued rule in the present writpetition on 29th March, 1995. Though more than eight monthshave passed, the respondents have not filed any reply to thewrit petition. The learned counsel appearing forrespondents No.1 and 2 has orally contended that thepetitioner is not entitled to any relief on the ground,firstly, that the amount of Rs.16,407.15 was deducted in theyear 1991, whereas this petition has been filed before thisCourt on 27th March,1995, and the petitioner has notfurnished any explanation whatsoever for the delay in filingthis writ petition. It has next been contended that thepetitioner's husband has worked for excess period of oneyear and five months after he attained the age ofsuperannuation and as such the respondents have rightlydeducted the aforesaid amount of salary which has been paidto him for the said period.

4. Learned counsel for the petitioner on the other handhas contended that the amount which has been deducted couldnot have been deducted as it cannot be said to be excesspayment, but it was the amount of wages earned. The latehusband of the petitioner worked on the post and for workingon the post he was paid salary/wages. Learned counsel for the petitioner submitted that if the college, in which lateL.N.Jani had worked, subsequently found that he had workedbeyond the age of superannuation, then the wages which hasalready been earned by and paid to him could not beenrealised even from him, and it could not have been deductedfrom the amount of pension payable to the petitioner.

5. I have given my thoughtful consideration to thesubmissions made by the learned counsel for the parties.The respondents have sanctioned family pension to thepetitioner after four years of the date of retirement of herhusband. It is highly unreasonable and unjustified as wellas most inhuman approach by the respondents to take such along time of four years to sanction family pension to thepetitioner. Against deduction of the aforesaid amount, thepetitioner has approached the authorities from time to timeand when nothing has been done in her case she has lastlyresorted to the remedy of filing writ petition under Article226 of the Constitution of India. In view of these facts itcannot be said that the petitioner has not explained thedelay in filing the present writ petition.

6. So far as the second contention of the learnedcounsel for the respondents is concerned, I do not find anysubstance in it. It is not the case of the respondents thatthe petitioner's husband has committed some fraud andcontinued in service for a period exceeding the date of hissuperannuation. It is a case where the husband of thepetitioner has been in fact allowed to work on the postbeyond the date of superannuation. It was for respondentsNo.1 to consider the date of birth of late L.N.Jani anddecide the question of his superannuation at the relevanttime and in case they have decided the matter and found himto have crossed the age of superannuation by one year andfive months, then respondents alone are responsible andaccountable for the same. It is a case where thepetitioner's husband had worked on the post and for workingtherein he was paid the wages. I do find merit in thesubmission of the learned counsel for the petitioner that itis the wages earned, which could not have been deducted fromthe amount payable to the petitioner towards family pension.

7. Similar question was considered by the Supreme Courtin the case of State of Bihar vs. Narasimha Sundram,reported in AIR 1994..R

case, Narsimha Sundaram, had on the basis of his true age toretire on 31st January, 1988, but he remained in service byplaying fraud on the department. However, it was anadmitted case that he served the department till 30thSeptember, 1989. By a writ petition the said respondent claimed salary from February, 1988 to September, 1989. Hehas also made complaint that he was not being paid postretiral benefits. The High Court allowed the writ petitionand granted both the reliefs. In para 3 of the judgment theSupreme Court has observed as under:

"So far the question of payment of arrears of salary is concerned, we do not find any merit in the contention of learned counsel for the appellant that the respondent can be refused his emoluments for the period in question as no proceedings were ever in.R

inquiry as to the alleged fraud played by the respondent on the department. It is not denied that the respondent worked till 30th September, 1989 and in that view we confirm that part of the impugned judgment which refers to the salary. The respondent should be paid his arrears of salary, if not already paid, within two months from today."

The case of the petitioner in the present writ petition ison a much higher pedestal than the case which was before theSupreme Court. It is not the case of the respondents in thepresent case that late Shri L.N.Jani had played fraud in thematter or on the basis of some fraud committed he had servedthe department for the excess period. In this case also noproceedings were ever initiated for inquiry.

8. In view of the decision of the Supreme Court inthe caseof State of Bihar v. Narasimha Sundram (supra), late ShriL.N.Jani was entitled to the salary and when that amountcould not have been deducted even during the course of hislife time, I fail to see any justification with the actionof the respondents in deducting the amount from the familypension payable to the petitioner. It is a case where therespondents have acted highly arbitrarily. Deduction of theamount of the salary for the excess period of work from theamount of family pension is wholly arbitrary andunjustified. It is a case where the petitioner has beendeprived of the said amount without any just cause andreason whatsoever.

9. Deprivation of the amount to the petitioner couldnot be explained on any justifiable cause. The petitionerhas suffered the loss of interest which she could haveearned on this amount. Taking into consideration all thefacts and circumstances of the case it is a fit case inwhich interest on the amount which has been deducted from the family pension of the petitioner should be awarded toher.

10. The next question which arises for consideration isthe rate of interest which should be awarded to thepetitioner. Looking to the fact that for long term fixeddeposits the banks pay interest at the rate of 14% perannum, I consider it to be a fit case where interest shouldbe awarded to the petitioner at the rate of 14% per annum.Though the amount has been deducted in the year 1989, thepetitioner has approached this Court after about four yearsthereafter. This delay on the part of the petitioner has tobe taken care of. Taking into consideration the period ofdelay, the petitioner is entitled to interest on the amountdeducted from the family pension from the date of filing ofthe writ petition. It is a case where the widow of a lowpaid employee has been unnecessarily harassed and she hasbeen compelled to approach this Court for the relief whichordinarily should have been granted by the respondents. Inview of this position the petitioner deserves to bereasonably compensated for the expenses incurred by her infiling of this petition before this court.

Conclusion

11. In the result the writ petition succeeds, and it ishereby allowed. Action of the respondents herein indeducting the amount of Rs.16,407.15 ps. from the familypension payable to the petitioner, towards salary for theperiod February 1988 to September,1989 of late L.N.Jani, isdeclared to be illegal and arbitrary. The respondents aredirected to refund the said amount forthwith to thepetitioner. Respondents are further directed to payinterest on the aforesaid amount at the rate of 14% perannum from the date of filing of the writ petition, i.e27th March, 1995 till the date of payment. Respondents No.1and 2 are further directed to pay Rs.3,000/- (Rupees threethousand only) to the petitioner by way of cost of thiswrit petition. Rule made absolute accordingly.

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