[1]
KABORA
Digitally signed
MBAM by
KABORAMBAM
SAPANA SAPANA CHANU
Date: 2024.06.03
12:15:04 -07'00' IN THE HIGH COURT OF MANIPUR
CHANU
AT IMPHAL
of
WP(C) No. 349 2016
Chingabam Dilip Meitei, aged about 48 years, S/o (L) Ch. Ibocha
Singh, Ex-Work charged Chowkidar, Mechanical Division No. 1,
PWD, Manipur and a resident of Khurai Kongpal Chingabam
Leikai, P.O. & P.S. Porompat, Imphal East District, Manipur.
... Petitioner
-Versus-
1. The State of Manipur, represented by the Commissioner/
Secretary, Works to the Government of Manipur at the Civil
Secretariat Complex, Imphal.
2. The Chief Engineer, PWD, Govt. of Manipur at Imphal.
3. The Commissioner/ Secretary (Finance) to the Govt. of Manipur
at Imphal.
4. The Joint Secretary Pension Cell to the Govt. of Manipur at
Imphal.
5. The Accountant General, Manipur at Imphal.
… Respondents
B E F O R E
BIMOL SINGH
HON’BLEMR. JUSTICE AHANTHEM
For the petitioner :: Mr. N. Umakanta, Advocate
For the respondents :: Mr. N. Ibotombi, Sr. Advocate asstd. By
Mr. A. Rommel, Advocate;
Mr. Niranjan Sanasam, GA &
Mr. S. Samarjeet, Advocate
Date of hearing :: 05-02-2024
Date of judgment & order :: 28.05.2024.
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[2]
JUDGMENT & ORDER
[1] Heard Mr. N. Umakanta, learned counsel appearing for the
petitioner; Mr. Niranjan Sanasam learned GA appearing for the
respondents No. 1,3 and 4, Mr. N. Ibotombi, learned senior counsel
assisted by Mr. A. Rommel, learned counsel appearing for the respondent
No. 2 and Mr. S. Samarjeet, learned senior panel counsel appearing for the
respondent No. 5.
The present writ petition pertains to the claim for payment of
arrear family pension made by the legal heirs of a deceased government
employee, who died while in service as a confirmed work charged
Chowkidar in the PWD, Manipur.
[2] The case of the petitioner is that his father worked as a Muster
Roll employee in the PWD, Manipur for a substantial period of time and
later on, he was appointed as a work charged Chowkidar by an order dated
20-02-1978 issued by the Chief Engineer, PWD, Manipur. While serving as
a work charged Chowkidar in the PWD, Manipur, the petitioner's father
expired on 07-07-1991 after a sudden and short illness and as such, the
service of the petitioner's father was formally terminated by an order dated
23-08-1991 issued by the Chief Engineer, PWD, Manipur. As the
petitioner's father have rendered more than 23 years as a work charged
employee, his service was confirmed w.e.f. 01-04-1990 by an order dated
05-09-1991 issued by the Chief Engineer, PWD Manipur.
[3] Consequent upon the expiry of the petitioner's father, the
Department initiated the necessary process for payment of terminal
benefits to his legal heirs/ family members, however, the process for
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[3]
payment of family pension to the legal heirs/ family members of the
deceased employee was not finalized by the authorities. Feeling aggrieved,
the petitioner's mother filed a writ petition being WP(C) No. 1071 of 2006
before the Gauhati High Court, Imphal Bench with the prayer for directing
the authorities to pay the family pension due payable to her. Unfortunately
during the pendency of the said writ petition, the petitioner's mother also
expired on 29-06-2011 and thereafter, the aforesaid writ petition was
withdrawn with liberty to file a fresh one.
[4] After the death of his mother, the petitioner being the only
son and legal heir filed an application dated 26-07-2013 to the
Commissioner/Secretary (Works) and the Chief Engineer, PWD, Manipur
requesting for payment of arrear family pension due payable to his late
mother for the period from 07-07-1991 to 29-06-2011. After submission of
the said application, the petitioner came to know about the existence of an
order dated 30-08-2007 issued by the Chief Engineer, PWD, Manipur
cancelling the earlier order dated 05-09-1991, by which the work charged
service of the petitioner's father was confirmed. Having been aggrieved, the
petitioner filed the present writ petition assailing the said order dated
30-08-2007 and also praying for issuing a direction to the authorities to pay
the arrear family pension due payable to him in terms of the provisions of
Terminal Benefits for Work Charged Staff of PWD/IFC/PHE/MI/ Electricity,
Manipur Rules, 1978 (hereinafter referred to as "The Terminal Benefits
Rules", for short).
[5] The case of the petitioner is that the impugned cancellation order
dated 30-08-2007 was issued more than 16 years after the death of his
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[4]
father and without giving any notice and behind the back of legal heirs of
the deceased government employee and also without following due
process of law and as such, the said impugned cancellation order is not
sustainable in the eyes of law and the same is liable to be quash and set
aside. It is also the case of the petitioner that despite issuance of the said
cancellation order, he is still entitled to get the arrear family pension in terms
of the judgment and order dated 12-08-2010 rendered by a Division Bench
of the Gauhati High Court, Imphal Bench in Writ Appeal No. 29 of 2009,
which have been upheld by the Hon’ble Apex Court. The petitioner’s case
is that the issues raised in the present writ petition is squarely covered by
the judgment and order dated 01-10-
2001 passed by the Hon’ble Gauhati
High Court in Writ Appeals No. 154 of 1998 and five other analogous writ
appeals, judgment and order dated 01-03-
2005 passed by the Hon’ble
Gauhati High Court in WP(C) No. 1445 of 2003 and seventeen other
analogous writ petitions and judgment and order dated 12-08-2010 passed
Appeal No. 29 of
by the Hon’ble Gauhati High Court, Imphal Bench in Writ
2009 and as such, the present writ petition may be disposed of by granting
similar reliefs as has been granted in the above cases.
[6] The case of the State Government is that the work charged
was confirmed retrospectively by an order
service of the petitioner’s father
dated 05.09.1991 issued by the Chief Engineer, PWD, Manipur, after the
Subsequently, the State Government issued
death of the petitioner’s father.
office memorandum dated 13.04.2006 laying down the conditions for
confirmation of the work charged employees wherein, it is, inter-alia,
provided that the benefit of confirmation shall not be available to
retired/deceased employees and that the existing rules in that regard will
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[5]
be deemed to have been amended to the extent indicated in the said office
memorandum. Later on, the Secretariat Works Department issued another
office memorandum dated 07.06.2007 directing the Head of Department
and other Heads of Office under the Department of works to ensure that
timely action is taken for confirmation of service of work charged employees
subject to availability of vacancies in the permanent work charged post and
that confirmation should not be done after the death/retirement of the work
charged employees.
Pursuant to the issuance of the aforesaid office memorandum
dated 07.06.2007, the Under Secretary (Works), Government of Manipur
wrote a letter dated 13.07.2007 to the Chief Engineer, PWD, Manipur,
requesting the letter to cancel the confirmation order which have been
issued after the death of work charged employees and pursuant to the said
letter, the Chief Engineer, PWD, Manipur, issued the impugned order dated
30.08.2007 thereby cancelling the order dated 05.09.1991 which confirmed
the work charged service
of the petitioner’s father and other work charged
employees.
The case of the State Government is that since the order
confirming the
work charged service of the petitioner’s father had been
cancelled, his family members, including the petitioner, are not entitled to
get family pension, inasmuch as, only family members of a
permanent/confirmed work charged employees are entitled to get family
pension.
[7] The case of the Account General, respondent No. 5 herein, is
that while the confirmation order dated 05.09.1991 in respect of the
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[6]
petitioner’s father was in operation, family pension was admissible to the
the Accountant General
petitioner’s late mother and as such, the office of
took up process for payment of family pension after receiving all the
required documents from the Joint Secretary (Pension Cell), Government
of Manipur. However, before completion of the process for authorisation of
family pension,
the said confirmation order in respect of the petitioner’s
father was cancelled by the Chief Engineer, PWD, Manipur by issuing an
order dated 30.08.2007. It is the case of the Accountant General that since
the confirmation order in respect of the petitione
r’s father had been
cancelled, family pension is not admissible to the family members of the
deceased employees and as such, the petitioner is not entitled to the relief
claimed by him in the present writ petition and the present writ petition is
liable to be dismissed.
[8] Since the dispute as to whether the petitioner is entitled to avail
family pension or not centre rounds the interpretation of the provisions of
the Terminal Benefits Rules, more particularly Rule 6 of the Terminal
Benefits Rules, this Court is of the considered view that it will be necessary
to examine minutely the provisions of the said Rule 6 and all the subsequent
amendments made thereto.
The said Terminal Benefits Rules came into force w.e.f.
27.09.1978 when the same was notified in the Manipur Gazette and in the
said Terminal Benefits Rules there was no provision for payment of family
pension. By an order dated 21.06.1990 issued by the Secretariat Works
Department, a new provision under Rule 6 (A) was added below Rules 6
(ii) (b) of the Terminal Benefits Rules and the said new Rules came into
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[7]
force with immediate effect. The newly added Rule 6 (A) provides for
payment of family pension as calculated under the Manipur Civil Service
(Pension) Rules, 1977 as amended from time to time, meaning thereby that
the family members of a deceased permanent work charged employee will
be entitled to avail family pension as calculated under the Manipur Civil
Service (Pension) Rules, 1977 as amended from time to time.
[9] Later on, by a notification dated 21.05.1993 issued by the
Secretariat Works Department, Rule 6 (A) of the Terminal Benefits Rules
was amended with prospective effect. By the said amended Rules, the
original Rule 6 (A) of the Terminal Benefits Rules was substituted. The new
amended Rule 6 (A) reads as under:-
“2. Amendment to Rule 6:-
The following shall be substituted for Rule 6 A of the Terminal
Benefit for work charged staff PWD/IFCD/PHED/Ml and
Electricity Rules 1978.
i) The benefit shall be available to the family of any
permanent work charged employees who rendered not
less than 1 (one) years of service after confirmation.
ii) These amendments would have prospective effect only
and no arrear shall be paid.
”
Subsequently, by another notification dated 08.09.1994 issued
by the Secretariat Finance Department, Rule 6 (A) was again amended with
prospective effect. The amended Rule 6 (A) reads as under:-
“Rule 6 (A) Family pension as calculated under MCS
(Pension) Rules,1978 as amended from time to time subject
to the following conditions:-
i) The benefit shall be available to the family of any
permanent work charged employees who died while in
service on or after 21.6.1990 after rendering not less
than 1 (one) year of service after confirmation.
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[8]
ii) The payment of family pension shall be effective from
21.05.1993 and no arrears in cash or otherwise for the
period from 21.06.1990 to 25.05.1993 shall be paid.”
[10] Since the aforesaid amended Rules were given prospective
effect only, I am of the considered view that the provisions of the said two
amended Rules will be applicable only in the case of claims for availing
family pension made by the family members of a permanent work charge
employee who expired on or after the issuance/publication of the said two
amended Rules. The corollary is that the aforesaid two amended Rules will
not be applicable in the case of claims for availing family pension made by
the family members of a permanent work charged employees who expired
before notification/publication of the said two amended Rules.
[11] In the present case, the only issue that needs consideration by
this Court is whether the petitioner is entitled to avail family pension even
after the cancellation of the order dated 05.09.1991 confirming the work
charged service of his father. The common stand of the respondent is that
since
the confirmation order in respect of the petitioner’s father had been
cancelled and since
the petitioner’s father cannot be treated as a confirm
or permanent work charged employee, the petitioner is not entitled to avail
family pension in view of the provisions of Rules 6 read with Rule 6 (A) of
the Terminal Benefits Rules.
[12] Coming to the facts of the present case,
the petitioner’s father
was appointed as a work charged Chowkidar in the PWD, Manipur by an
order dated 20.02.1978 after rendering service as a muster role employee
for a substantial period of time. While serving as a work charged employee,
and his service was officially
the petitioner’s father expired on 07.07.1991
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[9]
terminated w.e.f. 07.07.1991 by an order dated 23.08.1991 issued by the
Chief Engineer, PWD, Manipur. Just after about 2 (two) months from the
date of expiry of the petitioner’s father, the office of the Chief Engineer
issued an order dated 05.09.1991 confirming the work charged service of
. The effective date
the petitioner’s father retrospectively w.e.f. 01.04.1990
of confirmation was given after more than 12 (twelve) years of service as a
work charged employee.
In my considered view, the petitioner’s father was entitled to get
his work charged service confirmed well before 1990 in terms of the
applicable policy of the State Government but because of the negligence
or lapses on the part of the authorities his work charged service was not
confirmed or made permanent during his life time. After about 16 (sixteen)
years from the date of issuance of the confirmation order dated 05.09.1991
and by taking advantage of their negligence and lapses, the authorities
have issued the impugned order dated 30.08.2007 cancelling the said
confirmation order dated 05.09.1991
in respect of the petitioner’s father
without giving any notice and behind the back of the family members of the
deceased work charged employee and incomplete violation of the
principles of natural justice.
[13] According to the State respondents, the impugned cancellation
order had been issued in terms of the office memorandums dated
13.04.2006 and 07.06.2007. The said office memorandums were not given
retrospective effect meaning thereby that the said office memorandums will
operate with prospective effect only. Moreover, the said office
memorandums only stipulates that benefit of confirmation shall not be
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[10]
available to retire/deceased employees and that the confirmation should
not be given after the death/retirement of the work charged employees. The
said 2 (two) office memorandums never stipulates for cancellation of the
confirmation orders issued earlier in respect of the retired/deceased work
charged employees. Accordingly, this Court is of the considered view that
the stand taken by the respondents that the impugned cancellation order
had been issued on the basis of the said 2 (two) office memorandums is
unsustainable and deserves to be rejected.
[14] It is also on record that the Under Secretary (Works),
Government of Manipur, while furnishing para-wise comments in
wrote a
connection with the writ petition filed by the petitioner’s mother,
letter dated 13.07.2007 to the Chief Engineer, PWD, Manipur, stating, inter-
alia, that the confirmation order was illegal and requesting the Chief
.
Engineer to cancel the said confirmation order of the petitioner’s father
Pursuant to the said letter, the Chief Engineer, PWD, Manipur issued the
impugned order dated 30.08.2007 cancelling the confirmation order in
respect of the petitioner’s father without following any due process of law
and incomplete violation of the principles of natural justice.
In my considered view, such action of the respondents is totally
arbitrary and illegal and accordingly, the impugned cancelation order dated
30.08.2007 deserves to be quashed and set aside.
[15] Coming to the contention of the of the respondents that the family
members of a work charged employee, whose service is yet to be confirmed
or made permanent, are not entitled to avail family pension, it is to be
pointed out that this issue has been considered and already decided by a
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[11]
division Bench of the Gauhati High Court, Imphal Bench in its judgment and
order dated 12.08.2010 passed in WA No. 29 of 2009 (at Annexure-A/16).
The said writ appeal was preferred by the State of Manipur against the
judgment and order dated 20.11.2007 passed by the learned Single Judge
in WP (C) No. 899 of 2006, extending the benefit of family pension to the
family members of work charged employee whose service was yet to be
confirmed or made permanent. In the said writ appeal, the same contention
raised by the respondents in the present writ petition was also raised as
contained in para 7 of the judgment and order, which is quoted below for
ready reference:-
7. While Mr. Th lbohal Singh, learned Sr. Government
“
Advocate, Manipur upon a reference to the aforesaid
provisions of 1978 Rules and the Division Bench judgment
submits that the service of the deceased husband of writ
petitioner/respondent being not confirmed and/or permanent,
the petitioner is
not entitled to receive family pension.”
[16] After considering the rival submissions of the parties and the
provisions of the Terminal Benefits Rules, the division Bench of the Gauhati
High Court, Imphal Bench did not accept the contention raised on behalf of
the State Government and dismissed the writ appeal preferred by the State
Government. In the said judgment and order, the division Bench upheld the
judgment and order of the learned Single Judge extending the benefit of
family pension to the family members of a work charged employee whose
service was yet to be confirmed or made permanent. In my considered
view, the corollary of the said judgment and order is that the confirmation
of a deceased work charged employee is not sine-qua-non for availing
family pension by his dependents if it is found that the deceased worked
charged employee was entitled to have his worked charged service
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[12]
confirmed or made permanent under the relevant policy of the State
Government. The relevant portion of the judgment and order are
reproduced here under for ready reference:-
Rule 6B which has been quoted above having not made any
“10.
distinction between confirmed and permanent work-charged
employees and those who are not confirmed work-charged
employees, we are of the considered opinion that upon a
reference to some other provisions, the expression 'confirmation
and permanent' cannot be brought into the said provisions. Be
that as it may, on perusal of the chart which forms part of the
Division Bench judgment what we find is that, there are many
work-charged employees whose services were confirmed
retrospectively. In many cases, work-charged employees were
confirmed after their expiry. Thus, it cannot be said that the
benefits to which the families of the said work-charged
employees were provided by way of family pension would require
confirmation of service of the deceased husband of the petitioner
for said benefits to the petitioner. If for family pension to the
petitioner confirmation of her husband's service is required, the
authority may do so by passing appropriate order as was done in
case of the persons which we find mention in the Division Bench
judgment.
Needless to say confirmation of service and/or permanency
“11.
in service by issuance of specific order is always an uncertainty.
In the normal circumstances, an employee after rendering a
particular length of service is entitled to get his service confirmed
or permanent. In the instant case, husband of the petitioner
rendered sufficient length of service so as to earn confirmation.
The chart which formed part of the Division Bench judgment
shows that a work-charged employee who was appointed on
03.08.1979 was confirmed w.e.f. 01.03.1986. Likewise, another
employee who was appointed on 21.03.1978 was confirmed by
order dated 25.02.1992 w.e.f. 12.08.1996. Another employee
who was appointed on 01.08.1959 was confirmed w.e.f.
05.03.1968 by order dated 09.01.1974 after his expiry on
15.08.1968. There is another employee who was appointed on
28.03.1962 was confirmed on 06.03.1968 by order dated
09.01.1994 after his expiry on 08.01.1983.
Above being the position, we see no reason as to why the
“12.
petitioner who has filed the writ petition should be deprived of
similar treatment. Situated thus, we see no reason to interfere
with the impugned judgement and order passed by the learned
single Judge dated 20.11.2007 in WP(c) No.899/2006
.”
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[13]
[17] The SLP filed by the State of Manipur challenging the above
judgment and order dated 12.08.2010 passed in Writ Appeal No. 29 of 2009
had also been dismissed by the Hon’ble Supreme Court of India by an order
dated 17.01.2011 passed in SLP (C) No. 218/2011 (at Annexure-A/17) and
thus the matter has attained finality.
[18] Taking into consideration, the facts and circumstances of the
present case, the judgment and order dated 12.08.2010 passed in WA No.
29 of 2009 and for the reasons given herein above, this Court has no
hesitation to arrive at the conclusion that the respondents have acted
arbitrarily and illegally in issuing the impugned order dated 30.08.2007 and
in refusing to pay the arrear family pension due payable to the petitioner.
In the result, the present writ petition is disposed of with the
following directions:-
1. The impugned order dated 30.08.2007 is hereby quashed
and set aside.
2. The respondents are directed to expedite the process for
payment of arrear family pension due payable to the
petitioner for the period from 07.07.1991 to 29.06.2011 and
to release the same within a period of 3 (three) months from
today.
3. In the event the respondents failed to comply with the
directions given at (2) above, the total amount of arrear family
pension due payable to the petitioner shall carry an interests
@ 9 % per annum from the date of filing of the present writ
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[14]
petition till the date of payment of the total amount of arrear
family pension.
With the aforesaid directions, the present writ petition is disposed
of.
Parties are to bear their own costs.
JUDGE
FR / NFR
Sapana
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