M.M Das, J.:— The Petitioner in this Writ Petition is the widow of late Madhu Mangal Dash, who was working as a primary school teacher. The Petitioner has filed the present Writ Petition with a prayer to quash the office order No. 3565 dated 16.10.2003 of the District Inspector of Schools, Bolangir, rejecting her claim for grant of family pension with T.I thereon.
2. The late husband of the Petitioner was appointed as a primary school teacher on 1.5.1957 in the Babupali Primary School. While continuing as such, he remained on leave with effect from 31.8.1970 and could not join in his service because of prolonged illness. Ultimately, he died on 12.5.1993 The case of the Petitioner is that in normal course, her husband would have retired from service with effect from 16.4.1995 as his date of birth was 16.4.1937 The Petitioner filed O.J.C No. 2890 of 12001 claiming family pension, T.I and unpaid dues of her late husband. The said Writ Petition was disposed of by this Court by Order Dated 2.3.2001 directing the Opp. Party No. 3 - District Inspector of Schools, Bolangir to verify the relevant records and pass necessary orders with regard to payment of the Petitioner's dues within a period of four months from the date of receipt of the said order. The Petitioner, thereafter, submitted all relevant documents before the District Inspector of Schools for verification. After verification of the records, the District Inspector of Schools, on ascertaining that the Petitioner is the widow of late Madhu Mangal Dash, a primary school teacher, by his letter dated 16.1.2002 under Annexure-5 recommended the case of the Petitioner to the Director, Elementary Education, Orissa, Bhubaneswar for sanction of family pension and T.I and to move the Government for regularization of the leave period of the deceased husband of the Petitioner from 12.8.1970 to 12.5.1993 The Petitioner has alleged that even though the District Inspector of Schools sent the above letter to the Director, Elementary Education, Orissa, Bhubaneswar without waiting for any order, he passed the impugned order under Annexure-1 on 16.10.2003 rejecting the claim of the Petitioner on the ground that the deceased husband of the Petitioner worked as a primary school teacher from 1.5.1957 to 12.8.1970 and thereafter, he was absent from his duty since 31.8.1970 for 23 years and, accordingly, it would be deemed that he abandoned the service. Being aggrieved by the aforesaid order of the District Inspector of Schools, the Petitioner has preferred this Writ Petition under Articles 226 and 227 of the Constitution for appropriate relief. Learned Counsel for the Petitioner contended that the husband of the Petitioner having served for more than 13 years from 1.5.1957 to 12.8.1970, he rendered pensionable service, i.e, more than 10 years of service and, as such, the Petitioner is entitled to family pension and T.I thereon with effect from 1.9.1988 or in the alternative from 12.5.1993, i.e, the date of death of the husband of the Petitioner. Learned Counsel also brought to the notice of this Court the notification of the Government of Orissa in its School and Mass Education Department dated 18.10.2001 by which the Orissa Aided Educational Institutions (Non-Government Fully Aided Primary School Teachers) Retirement Benefit Rules, 1986 was amended and under Rule 8(2) thereof, it was provided that the family of a pensioner or family of an employee, who died on or after 1st September, 1988 shall be entitled to get family pension and T.I thereon as admissible to the family of his counter-part in the State Government service. Relying upon the above notification, Learned Counsel further submitted that the Petitioner would be entitled to family pension and T.I and, as such, the order of the District Inspector of Schools impugned in this Writ Petition is liable to be quashed and necessary direction should be issued to the concerned authority to make payment of the arrear dues of the Petitioner towards family pension and T.I thereon. It was further contended by the Learned Counsel that in the previous Writ Petition, i.e, in O.J.C No. 2890 of 2001, this Court issued specific direction to the District Inspector of Schools to verify the documents and to ascertain as to whether the Petitioner is the widow of the deceased primary school teacher, namely, late Madhu Mangal Dash and if so, there is no bar or impediment on the part of the said authority to release the family pension and T.I in favour of the Petitioner. Learned Counsel, thus, submitted that the impugned order of the District Inspector of Schools is contrary to the orders passed by this Court in the aforementioned Writ Petition.
4. A counter affidavit has been filed on behalf of the Opp. Parties denying the claim of the Petitioner on the ground that pursuant to the orders passed by this Court in the previous Writ Petition, i.e O.J.C No. 2890 of 2001, the case of the Petitioner was referred to the Director, Elementary Education, Orissa, Bhubaneswar and as the question of regularization of service of the late husband of the Petitioner was pending at the Government level, he having found to be unauthorizedly absent from 31.8.1970 to 12.5.1993, the Government of Orissa in its School and Mass Education Department letter dated 25.8.2003 communicated to the District Inspector of Schools that the Government has moved the Law Department for their considered views on the Order Dated 22.3.2001 of this Court passed in O.J.C No. 2890 of 2001 and the Law Department, in turn, has sought the advice of the Advocate General, who advised them that in view of the admitted position that the Government servant has absconded since 31.8.1970 and was absent from duty for 23 years, he is deemed to have been abandoned the service. So the claim of his wife (Petitioner herein) should be rejected. In view of such opinion, the District Inspector of Schools was requested to take action accordingly by passing appropriate order. It is, thus, pleaded by the Opp. Parties that inaccordance with the opinion of the Learned Advocate General, it was treated that the late husband of the Petitioner having abandoned the service, the Petitioner would not be entitled to family pension and T.I thereon. The Opp. Parties have further pleaded that in view of such position, the reliefs claimed by the Petitioner should not be granted and there is no illegality or arbitrariness in the order of the District Inspector of Schools which has been impugned in the present Writ Petition.
5. A rejoinder affidavit has been filed by the Petitioner, inter alia, stating that in O.J.C No. 2890 of 2001 filed by the Petitioner, this Court directed the District Inspector of Schools to verify the relevant records and if he is satisfied that the Petitioner is the widow of deceased primary school teacher, he would pass necessary orders keeping in view Rule-8(2) of the Orissa Aided Educational Institutions (Non-Government Fully Aided Primary School Teachers) Retirement Benefit Rules, 1986 (hereinafter referred to as “the Retirement Rules”) as amended by the Government Notification dated 23.3.1998 It has been further stated that after such direction was issued by this Court, once it was found that the Petitioner is the widow of the deceased primary school teacher, it would be incumbent upon the Opposite Parties to pay her the family pension and by not doing so, the Opposite Parties have acted contrary to the directions issued by this Court. The Petitioner has further stated in the rejoinder affidavit that had the employer treated the late husband of the Petitioner to be unauthorizedly absent from duty, show cause notice would have been issued to him and, if required, a proceeding would have been initiated against him under Rule-72(2) of the Orissa Service Code. But in the instant case, nothing of this sort was done, and, therefore, the period of absence of the husband of the Petitioner from 31.8.1970 to 12.5.1993 should have been regularised and he would have been paid his leave salary as due and admissible as per the rules. Letter No. 20908.SME/dated 25.8.2003 which is the order of the Government treating the period of leave of the husband of the Petitioner as unauthorized absence and the Order No. 3565 dated 16.10.2003 holding that the late husband of the Petitioner abandoned the service, cannot be sustained as the said orders have been passed much after the death of the husband of the Petitioner.
6. It, therefore, transpires from the facts of the case that admittedly the late husband of the Petitioner was absent from duty from 31.8.1970 to 12.5.1993 No notice, whatsoever, was issued to him during his life time calling upon him to file show cause stating the said reasons for his unauthorized absence. No disciplinary proceeding was drawn up against him during his life time. Order treating the period of absence as unauthorized was passed on 25.8.2003, i.e, much after the death of the husband of the Petitioner. The subsequent order holding that the husband of the Petitioner abandoned his service passed on 16.10.2003 was also much after his death.
7. The moot question which arises in this case for determination is as to whether in case a primary school teacher who is governed under the Retirement Rules, remains absent without seeking leave and dies during his service, it can be said that he has abandoned his service, even though no disciplinary proceeding is initiated against him. The other question which arises for determination is as to whether in the previous order passed in O.J.C No. 2890 of 2001, this Court directed for payment of family pension to the Petitioner after verifying that she is the widow-of the deceased primary school teacher.
8. This Court, addressing itself to the second question, finds that in O.J.C No. 2890 of 2001 by Order Dated 22.3.2001 this Court held that “Without expressing any opinion on the merits of the claim, we direct the concerned District Inspector of Schools (O.P No. 3) to verify the relevant records and if he is satisfied that the Petitioner is the widow of the deceased primary school teacher, he would pass necessary orders keeping in view the aforesaid rule within four months of receipt of this order”. It is, therefore, clear that this Court did not express any opinion with regard to the legitimacy of the claim of the Petitioner except stating that if the Petitioner is found to be the widow of the deceased primary school teacher, the District Inspector of Schools shall consider the case of the Petitioner by applying the provisions of Rule-8(2) of the Retirement Rules. Thus, it is seen that the above mentioned findings of this Court did not estop the Opposite Parties from examining the claim of the Petitioner. No doubt, while considering the claim of the Petitioner, after finding that the Petitioner is the widow of the deceased primary school teacher and after recommending the case of the Petitioner's husband to the Director for regularization of the period of absence, the Opposite Parties without examining as to whether the Petitioner is governed under Rule-8(2) of the Retirement Rules, solely relying on the opinion of the Learned Advocate General, came to the conclusion that the husband of the Petitioner abandoned his service.
9. Rule - 8(2) of the Retirement Rules is as follows:—
“8(1) xxxx xxxx
(2) The family of an employee including the employee, who retired or died on or before the commencement of these rules, shall be entitled to get family pension and T.I as admissible to the family of his counterpart in the State Government service”.
10. From the above rule, it is clear that the Petitioner will be entitled to receive family pension as admissible to the family of his counterpart in the State Government service, where the employee expired before the commencement of the amended rules, i.e, 25.3.1998
11. The question, therefore, arises as to whether a counterpart of the Petitioner in the State Government service in similar situation would be entitled to receive family pension or not.
12. Rule-72 of the Orissa Service Code provides that no Government servant shall be granted leave of any kind for a continuous period exceeding five years and where a Government servant does not resume duty after remaining on leave for a continuous period of five years, or where a Government servant after the expiry of his leave remains absent from duty otherwise than on foreign service or on account of suspension, for any period which together with the period of the leave granted to him exceeds five years, he shall, unless Government, in view of the exceptional circumstances of the case, otherwise determine, be removed from service after following the procedure laid down in the Orissa Civil Services (Classifications, Control and Appeal) Rules, 1962.
13. A conjoint reading of Rule-8(2) of the Retirement Rules with Rule 72 of the Orissa Service Code clearly shows that when a primary school teacher remains absent for more than five years and does not resume his duty after the period of leave, can be removed from service by following the procedures laid down in the Orissa Civil Service (Classification, Control and Appeal) Rules, 1962. In other words, such a teacher cannot be removed from service without issuing a show cause notice and initiating a departmental proceeding as otherwise the same would clearly amount to violation of principle of natural justice and in the case of Government servant, it would be ultra vires to Article 311(2) of the Constitution inasmuch as the same would not be in conformity with the relevant provisions of Orissa Civil Service (Classification, Control & Appeal) Rules, 1962.
14. As already narrated above, in the instant case, admittedly no notice, whatsoever, was issued to the deceased husband of the Petitioner when he allegedly remained unauthorizedly absent from duty for more that five years, i.e from 31.8.1970 to 12.5.1993 As a matter of fact, admittedly, the order treating the late husband of the Petitioner to have abandoned the service was passed in the year 2003, i.e, much after his death and that too, without giving any opportunity of hearing to the said deceased primary school teacher during his life time. The decision of the Government appears to have been taken solely on the basis of the opinion rendered by the Learned Advocate General as would be indicated from Annexure-A/1, i.e, letter issued by the Department of School and Mass Education to the District Inspector of Schools, Bolangir. This Court, therefore, finds that the order treating the husband of the Petitioner to have abandoned the service is wholly arbitrary and cannot be sustained in the eye of law. The Petitioner, in such event, would be entitled to receive family pension with effect from the date of death of her husband, i.e from 12.5.1993 The Opposite Parties are also liable to regularise the period of absence of the late husband of the Petitioner from 31.8.1970 to 12.5.1993 in accordance with the Leave Rules governing the field and in the event it is found that the deceased husband of the Petitioner is entitled to any amount for the said period, the said amount shall also be payable to the Petitioner. Considering the harassment/to which the Petitioner has been subjected to in repeatedly approaching the authorities as well as this Court, I am also of the view that the Petitioner would be entitled to a cost of Rs. 5,000/- (Rupees five thousand) to be paid to her by the Opposite Parties. In the result, the impugned order under Annexure-1 of the District Inspector of Schools as well as the decision of the Government, that the late husband of the Petitioner should be treated to have abandoned his service, stands quashed. The Opp. Parties are directed to pay family pension with T.I to the Petitioner along with the arrears of family pension and the T.I with effect from 12.5.1993 The current family pension with T.I for the months of November and December, 2007 shall be paid to the Petitioner by the end of December, 2007 and regularly thereafter. The arrear family pension with T.I with effect from 12.5.1993 till 31.10.2007 shall be paid to the Petitioner by the end of April 2008. As already indicated above, the cost of Rs. 5,000/- (Rupees five thousand) shall be paid to the Petitioner by the opposite party No. 1 by the end of December, 2007 in shape of Bank Draft drawn in favour of the Petitioner. It is further directed that the Opp. Party No. 1 shall regularise the period of absence of the deceased husband of the Petitioner in accordance with the Leave Rules governing the field and if it is found that the late husband of the Petitioner was entitled to any amount on that count, the said amount shall also be paid to the Petitioner by the end of April, 2008.
16. The Writ Petition is accordingly allowed.