Saraswati Sarkar (Majumder) vs State Of Tripura And Ors.

Heard Mr. D. K. Das Chowdhury, learned counsel appearing for the petitioner as well as Mr. A. Ghosh, learned counsel appearing for the respondents No.1, 2, 3, 4 & 5 and Mr. H. Deb, learned Assistant Solicitor General of India appearing for the respondents No.6 & 7. Despite notice, there is no representation from the respondents No.8 & 9.

By means of this writ petition, the petitioner has challenged the decision of the Accountant General (A & E, Tripura) which is reflected in the communication under No.Pen-1/Minor/PR No. Fam-104/40633-37 dated 04.02.2016, Annexure-4 to the writ petition and also the consequential action as reflected in the communication of the even number dated 01.07.2016, Annexure-8 to the writ petition.

By the said communication dated 04.02.2016, the Accountant General, A & E, Tripura, the respondent No.7 herein, has observed as under:

"1. As per order and judgement dated 23-03-2013 passed by the Learned Session Judge, South Tripura, Udaipur (copy enclosed) it is to be stated that Smti. Saraswati Sarkar (Majumder) has been sentenced to suffer Rigorous Imprisonment for 3 (three) years and to pay a fine of Rs.5000/-in default to suffer 6(six) months S.I. for commission of the offence punishable U/S.304, Part-II of I.P.C. As such as per provision of Rule 54(11-C) of CCS Pension Rules, she is no longer eligible for getting Family Pension but her minor children are eligible for the same as per their turns.

As per order dated 16-04-2015 passed by the Family Court, Agartala, West Tripura (copy enclosed) it may be stated that on the strength of this order and also as per proposal of DDO vide his letter dated 23-06- 2015 (copy enclosed) minor Pension can be authorized to Smti. Aparna Majumder being the legal guardian as declared by the Family Court till attaining the age of majority of Shri Rajat Majumder, minor son of Late Rabindra Majumder, Ex. H.M.

In view of the above, you are requested to return the Disburser's Portion of PPO No.Pen-1Trip/s/Sup/11587 in original issued in favour of Shri Rabindra Majumder (now deceased), Ex. H/M for doing the needful at this end."

Thereafter, by the communication dated 01.07.2016, Annexure-8 to the writ petition, the Accountant General, A & E, Tripura has exposited that the petitioner in terms of provisions of Rule 54 (11-C) of CCS Pension Rules is no longer eligible for getting family pension. For purpose of reference, the entire text of the said communication is extracted hereunder:

"No.Pen-1/Minor/PR No.Fam 104 Dt.

To

The Sub Treasury Officer Amarpur, Gomati, Tripura

Subject: Family Pension case in respect of Late Rabndra Majumder, Ex.H/M-holder of PPO No.Pen-1/Trip/S/Sup/11587.

Sir,

In inviting a reference to your letter No.F.II(II)STO/AMP/Vol-2/2008/657-665 dated 16-02-2016 on the subject cited above, I am to state that as per judgment and order dated 23-03-2013 passed by the Learned Session Judge, Udaipur Smti. Saraswati Sarkar (Majumder), Wife of Late Rabindra Majumder, Ex.H/M has been declared as convicted as on 23-03- 2013. Hence, as per provision of Rule 54(11-C) of CCS Pension Rules, she is no longer eligible for getting Family Pension. But it appears from entry recorded in the Pension Payment Order (Disburser's Portion) that arrear Family Pension has been paid upto 06-04-2014 to Smti. Saraswati Sarkar (Majumder) from your lend (copy enclosed).

In view of the above, you are requested to arrange to recovery of the arrear Family Pension for the period from 23-03-2013 to 06-04-2014 which was paid to Smti Saraswati Sarkar (Majumder) and arrange to disburse the same to the eligible minor children of Late Rabindra Majumder, Ex. H/M from your end.

Yours faithfully, Accounts Officer"

The essential fact which is relevant for purpose of appreciating the challenge is that the husband of the petitioner had retired as the Head Master of the School and was getting the pension. During an altercation with the petitioner, the said pensioner died. As a result, the petitioner was accused of murder punishable under Section 302 of the IPC. After investigation, the police report was filed chargesheeting the petitioner. As a result, on taking cognizance, the charge was also framed under Section 302 of the IPC and the trial vide ST 25(ST/A) of 2011 commenced as the petitioner denied the charge of committing murder of her husband. Finally, by the judgment of conviction dated 23.03.2013 delivered in ST 25(ST/A) of 2011 by the Sessions Judge, South Tripura, Udaipur the petitioner was convicted not under Section 302 of the IPC but on appreciation, she was convicted under Section 304 Part-II, IPC, meaning the death of her husband was homicidal in nature but it was not amounting to murder and further it was not an intentional one. The Sessions Court has observed as under:

"When there is no intention of causing death, Section 302 I.P.C. is not attracted. But when the assailant knew that such injury is likely to cause death, conviction will be under Section 304 Part-II I.P.C. In the instant case the assailant accused assaulted her husband and saw her husband profusely bleeding. She did not allow her son to raise cry for arranging treatment. The incident occurred in the spur of moment where following a quarrel the deceased rebuked and the accused being infuriated inflicted a blow on the neck causing death, his conviction was held U/s. 304 Part-II I.P.C. by the Hon'ble Supreme Court in the case Patel Vrs. State reported in 1992 CRI.L.J.(SC) 2334. From the decision of the Hon'ble Apex Court and after evaluation of the evidence on record it is found that it is not a case punishable U/s. 302 I.P.C., but it is a case where Section 304 Part-II can be applied. The evidence on record failed to bring home the charge U/s. 302 I.P.C., but the evidence clearly established the case against the accused U/s. 304 Part-II I.P.C. beyond reasonable shadow of doubt. Prosecution established the case U/s. 304 Part-II I.P.C., but failed to establish the charge U/s. 302 I.P.C."

In view of this, the entitlement of the petitioner was suspended and she was denied to have the said pension any more in terms of the provisions of Rule 54 (11-C) of the CCS Pension Rules. Those decisions are now under challenge, as stated, in this petition.

Mr. D. K. Das Chowdhury, learned counsel for the petitioner has submitted that except in the case of a murder such decision cannot be taken by the authority by stopping the pension inasmuch as Rule 54 (11-C) (b) (i) provides that on the conclusion of the criminal proceeding, if the person concerned is convicted for the murder or abetting in the murder of the Government servant, such a person shall be debarred from receiving the family pension which shall be payable to other eligible member of the family, from the date of death of any Government servant. Mr. Das Chowdhury, learned counsel relying on the provisions that the payment of pension can be barred only in the event of murder. This section has been referred in the communications dated 04.02.2016 and 01.07.2016, Annexure-4 and Annexure-8 respectively. Mr. Das Chowdhury, learned counsel has submitted that under Rule 54(11-C) of the CCS Pension Rules, 1972 the respondent No.7, the Accountant General, (A&E), Tripura does not have any authority to bar the petitioner to get the pension for death of her husband, namely Rabindra Kumar Majumder.

On the other hand, Mr. H. Deb, learned ASGI appearing for the respondent No.7 has submitted that even if the petitioner is deemed to be a pensioner, the respondent No.7, the competent authority has right to stop the payment of the pension under the provisions of Rule 8 (1) (b) of the CCS Pension Rules, which provides as under.

"The appointing authority may, by order in writing, withhold or withdraw a pension or a part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct. Provided that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the amount of [rupees three hundred and seventy-five] per mensem."

According to Mr. Deb, learned ASGI, from the judgment of conviction it would appear without any ambiguity that the petitioner has been convicted on a 'serious crime' within the meaning of Rule 8 of the CCS Pension Rules, 1972 and hence there is no illegality in the order. This court may not interfere with the impugned orders dated 04.02.2016, Annexure-4 to the writ petition and 01.07.2016, Annexure-8 to the writ petition.

Mr. A. Ghosh, learned counsel for the respondents No.1, 2, 3, 4 and 5 has submitted that the dispute hinges on interpretation of the rules as projected by the respondent No.7 and as such the respondents No.1 to 5 would go by the decision of the Accountant General, A&E, Tripura.

From appreciation of the records what appears is that the stand now taken by the respondents No.6 and 7 in their reply which was filed on 13.12.2016 is entirely different from the stand they have taken in the impugned order containing in the said communications, Annexure-4 and Annexure-8 of the writ petition. However, in para (v) (c) of their reply those respondents have averred as under:

"c) The provision of Clause (a) and Clause (b) shall also apply for the Family Pension becoming payable on the death of a Government servant after his retirement.

Moreover, it is worth mentioning here that any sort of pension is subject to good conduct of the pensioner. In this regard, the relevant Rule 8 of CCS (pension) Rules runs as follows:

Pension is subject to future good conduct

"(1) (a) Future good conduct shall be an implied condition of every grant of person and its continuance under these rules.

(b) The Appointing Authority may, by order in writing, withhold or withdraw a pension or a part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct:

........................................................................................

(2) Where a pensioner is convicted of a serious crime by a Court of Law, action under sub-rule (1) shall be taken in the light of the judgment of the Court relating to such conviction.

..............................................................."

The office of the Respondent No.7 made communication with the concerned DDO vide letter No.Pen-1/Minor/PR Fam 104/40728-32 dated 18.02.2016 copy of which was also endorsed to the writ petitioner wherein DDO was categorically requested to take opinion of Law Department, Government of Tripura on this issue, if necessary, to finalize the case. The DDO was also advised to intimate the office of the Respondent No.7 as to who will be the recipient of Minor Family Pension being the legal guardian in the instant case. In return, the DDO vide his letter dated 07-05-2016 again sent proposal to the office of the Respondent No.7 to authorize minor pension in favour of Shri Rajat Majumder, Shri Rakesh Majumder and Shri Rohit Majumder wherein Smti. Aparna Majumder daughter of late Rabindra Majumder will be the legal guardian of the minors to receive the pension money."

In rejoinder, Mr. Das Chowdhury, learned counsel for the petitioner has referred the provisions of Rule 8(3)(a) of the CCS Pension Rules which provides that in the event of grave misconduct, prior notice has to be given to the persons who would be going to be affected by the order, if any is passed on the grounds of misconduct. We are not dealing here with a case of misconduct for committing 'serious crime'. In the explanation below Rule 8(5), the expression 'serious crime' has been defined. In terms of that, 'serious crime', includes a crime or under the Official Secrets Act, 1923 whereas the 'grave misconduct' includes the communication or disclosure of any secret official code or password or any sketch, plan, model, article, note, document or information, such as is mentioned in Section 5 of the Official Secrets Act, 1923. This stand has been taken by the respondents No.6 and 7 while giving the reply to the petitioner. It is clear that the case of the petitioner is not covered by Section 54 (11- C)(b) of the CCS Pension Rules 1972 as there is no incidence of murder. However, prima facie a case has been made out by the respondents treating the conviction as proof of commission of 'serious crime'. But there was no proceeding or consideration by the respondent No.7 in this regard. As consequence thereof, the impugned orders dated 04.02.2016, Annexure-4 to the writ petition and 01.07.2016, Annexure-8 to the writ petition shall remain suspended till a decision is taken by the respondent No.7 after giving the petitioner a notice asking her to show cause why the action under Rule 8(1)(a) and (b) shall not be taken against her by way of withholding or withdrawing the pension or part thereof. On receipt of the reply from the petitioner or on affording reasonable opportunity the respondent No.7 shall decide whether the pension or part thereof shall be withdrawn, withheld or truncated in the manner as provided under Rule 8(1)(a)(b) of the CCS Pension Rules 1965. The respondent No.7 shall also issue notice to the respondents No.8 and 9, inasmuch as if any decision on culmination of such proceeding may affect their right that has been created by the respondent No.7 by the impugned orders. Hence, they should have a right to make their submission on this aspect of the matter. The entire exercise shall be completed within a period of 4 months from the day when the petitioner shall submit a copy of this order to the respondent No.7. Whether the impugned orders dated 04.02.2016 and 01.07.2016 shall survive or to be withdrawn would be decided on the outcome of that proceeding. To that extent, the writ petition stands allowed.

There shall be no order as to costs.

As a measure of abundant caution, a copy of this order be furnished to Mr. H. Deb, learned ASGI appearing for the respondents No.6 and 7 for compliance of this order.