NIRMAL DATTA Vs. STATE

JUDGEMENT

(1.) BY this Letters Patient Appeal, the appellants have challenged the order passed by the learned Single Judge in Writ Petition No. 211 of 1978 on August 2, 1980. The appellants filed a writ petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of the State of Jammu and Kashmir praying for a writ of a Mandamus against the respondents for the release of family pension with effect from 29th of June, 1970, when Mr. S. P. Dutta died while working as a Geologist in the Department of Geology and Mining, who is survived by his window, appellant No. 1 and rest of the appellants as minor children. The appellants made a claim for family pension before the Government under the provisions of the "Jammu and Kashmir Family Pension Cum -Gratuity Rules, 1964" (hereinafter called the rules) on the ground that late Mr. S. P. Gupta died while in active service of the Government, Pursuant to said application, respondent No. 2 was pleased to grant family pension, etc., in favour of the appellants vide Government order No. 131 MMG of 1973 dated June 20, 1973 in terms of Rule 3 (iii) of the said rules computing the services rendered by late Mr. S. P. Datta as qualified and counted for grant of pension, gratuity, for the purpose of family pension release in favour of the pensioners.

(2.) DISPUTE arose when the respondents instead of grant of family pension from the date of the death of the deceased employee that in June 29, 1970 granted family pension with effect from June 20, 1973 under P. P. O. No. PN/SY -9 -F/74 -75/1203 -47 alongwith P. P. O. No : 140/F granting a pension of Rs. 191.40 with effect from June 20, 1973 and Rs. 95.70 with effect from June 20, 1977. A further condition was laid by the Accountant General that the payment be not made to the appellants till further instructions from their office. Followed by information that there were dues outstanding against last Mr. S. P. Datta, for which the investigation was being conducted by the Vigilance Commissioner against the deceased. The petition was contested by the respondents inter alia they contended that late Mr. S. P. Datta was a temporary employee borne on temporary establishment, his family was not automatically eligible for family pension under the rules. However, the rules were specially made applicable in their case. It was standing against the deceased payable towards the rent due of the Government quarter, advances, Recoveries on account of in - admissible pays and any other dues in terms of Rule 4 -3 (A) of Jammu and Kashmir Financial Code, which according to the respondents also include some embezzled amount. The family pension was, therefore, not released in favour of the appellants, the fact of outstanding dues was denied by the appellants.

(3.) THE learned Single Judge after enumerating the facts and considering the provisions of Rule 7 of the Family pension Rules, 1964 held that the right to receive the pension had accrued in favour of the appellants from June 39, 1970 and not from the date of the order granting the pension in 1973, but the learned Single Judge having resort to Rule 9 of the Rules read with Rule 168 -BofJammu and Kashmir Civil Service Regulations by reproducing both the Rules in his order held that the said rules give right to the Government to recover amounts from the pension or compassionate allowances as punitive measures to make good the losses caused to the government as a result of negligence or fraud on the part of the person concerned, while he was in service. Thereby dismissing the writ petition upholding the action of the respondents in with holding the pension to effect the recoveries against late Mr. S. P. Datta. However, it was observed: "Since the pension is due to the petitioners from 1970 onwards the amount accumulated till now must be much more than what may have to be recovered from the deceased S. P. Datta". The appellants are aggrieved against the said dismissal of the writ petition challenging the outstanding recoveries as well as exparte enquiry through which the respondents assessed te dues against the deceased employee in this Letters Patent Appeal.