S.J.MUKHOPADHAYA, J. - (1.) THIS writ petition has been preferred by petitioner for direction on the respondents to pay her the death -cum -retiral benefits including family pension to which she is entitled on the basis of last pay drawn by her husband. Further prayer has been made to quash the order passed by the Senior Accounts Officer of Accountant General (for short A.G.) (A and E) II. Bihar and Jharkhand contained in letter No. PEN 13 -PR -J -453 (01 -02) Sa -Patna 3077 dated 4th April, 2002 whereby the said authority while returned the service book of the husband of the petitioner, informed the State Authorities that her husband was wrongly promoted to the higher scale and thereby wrongly given higher revised scale of Rs. 4000 -6000/ -w.e.f. 1st January, 1996. The pay fixation has been shown in the lower scale of pay and requested the State Authorities to adjust the payment already made.
(2.) THE case of petitioner is that her husband late Harendra Nath Das was in the services of the State and retired on 30th April, 2001 as Headmaster, Primary School, Radha Nagar, Circle - Pakuria, District -Pakur. He was receiving pay of Rs. 5800/ -in the revised scale. Her husband late Harendra Nath Das was not paid the total retiral benefits during his life time and died on 4th June, 2002. In the meantime, the respondents issued the impugned letter No. PEN 13 -PR -J -453 (01 -02) Sa -Patna 3077 elated 4th April,2002 for recovery of excess amount from the retiral benefits of the husband of the petitioner. Further case of the petitioner is that the subsequent Headmaster, namely, Gopal Chandra Roy illegally withdrawn certain amount of retrial benefits by playing fraud and forgery in the name of her husband. The matter was enquired into the instance of the Deputy Commissioner, Pakur, wherein after Pakuria P.S. Case No. 35 of 2002 dated 3rd October, 2002 has been instituted against said Gopal Chandra Roy under Sections 467, 468, 420/409 of the IPC in the FIR, it has been alleged that the accused, Gopal Chandra Roy embezzled and defrauded the gratuity, group insurance, leave encashment and provisional pension amount of her husband late Harendra Nath Das. According to 5th respondent -District Superintendent of Education, Pakur, the A.G. (A and E) II, Bihar vide Letter No. PEN 3 -PR -J -453 (01 -02)Sa -Patna 3077 dated 4th April, 2002 returned the service book of petitioners husband late Harendra Nath Das with remarks that his salary was wrongly fixed on 1st January, 1986 and 1st January, 1996 in the revised scale of pay. On the basis of the said letter, calculation was made and the matter has been forwarded to the A.G. Jharkhand vide Memo No. 686 dated 8th August, 2003 for realization of Rs. 61,478/ -. Though it is alleged that the husband of petitioner was well aware that his salary was fixed under a wrong pay scale and he kept mum over the matter to derive benefit but such statement made at paragraph 4 to the counter affidavit has not been stated to be statement true to the knowledge or based on information derive from the records. In the affidavit portion, the 5th respondent kept mum with respect to paragraph 4 to the counter affidavit and, therefore, this Court cannot accept such plea with respect to which nothing said in the affidavit portion. It is also not based on any record. Further, the employee, late Harendra Nath Das having died, in his absence without any record, the respondents cannot allege any mala fide against the employee, nor it can be accepted.
(3.) COUNSEL for A.G. (A and E) II, Bihar and Jharkhand referred to Chapter X, Rules 189 and 197(a)(i) of the Bihar (now Jharkhand) Pension Rules, 1950 (hereinafter referred to as the Pension Rules, 1950). It was submitted that the Department of the State Government is supposed to submit the pension paper and report 18 months prior to retirement of a Government Employee. In almost 100% cases, the State Government failed to submit pension paper and report till the date of retirement and they are submitted after about one year of retirement. He referred to an order passed by this Court on 17th January, 2003 in Contempt Case (C) No. 726 of 2001, Jamuna Prasad v. State of Jharkhand and Ors., wherein the Principal, A.G., Bihar and Jharkhand, Ranchi and A.G. ( A and E) II, Bihar informed the Court that the Officers of the State Government do not co -operate them to finalise, the pension and gratuity of Class -Ill and IV employees. In most of the cases, sanction orders are issued by the State Government alter one year to three years. Mr. S. Srivastava counsel for A.G. Jharkhand submitted that if the State Government would have submitted the pension paper and report 18 months prior to retirement of the employee as per the rules, the A.G. could have detected the mistake and could have requested the State Government to remove the discrepancies during the service period of the employee. The question of recovery from retiral benefits would not have taken place.;