W.P.(C) No. 18112 of 2015. Case: R. Waralaxmi Vs Southco and Ors.. High Court of Orissa (India)

Case NumberW.P.(C) No. 18112 of 2015
CounselFor Appellant: Deepali Mahapatra and N.C. Tripathy, Advs. and For Respondents: Pradipta Ku. Mohanty, Sr. Adv, D.N. Mohapatra, I. Mahanty, P.K. Nayak, S.N. Dash and A. Das, Advs.
JudgesDr. Durga Prasanna Choudhury, J.
IssueConstitution of India - Articles 226, 227
Judgement DateJanuary 19, 2017
CourtHigh Court of Orissa (India)


Dr. Durga Prasanna Choudhury, J.

  1. Challenge has been made to the illegal action of the opposite parties in withdrawing the gratuity amount from the savings bank account of the petitioner without following the principles of natural justice.


  2. The unshorn details of the case of the petitioner is that the present petitioner is the widow of late R. Nagaraju, who was working as a Helper under the Executive Engineer (Electrical), Phulbani Electrical Division, Phulbani, opposite party No. 5 with effect from 1.1.1981. The late husband of the petitioner while working as a Line-man in an electric pole, on 28.5.2010 got electric shock causing burn injuries to his body and while he was under treatment, he died on 29.5.2010. Thereafter, W.C. Case No. 48 of 2011 was filed by the legal heirs of the deceased R. Nagaraju before the Commissioner for Employees? Compensation, Berhampur (hereinafter called as 'the Commission') and the Commission vide its order dated 30.6.2012 awarded compensation of Rs. 6,04,250/-. Being aggrieved by the said award, the Department preferred FAO No. 424 of 2012 before this Court and this Court vide its order dated 23.8.2013 modified the award to the tune of Rs. 3,02,125/- along with interest. After the death of the late husband of the present petitioner, the opposite party No. 5 also sanctioned the provisional pension in her favour on 18.10.2010 (Annexure-1) and since the petitioner was getting provisional family pension, it was finalized on 19.1.2015 (Annexure-2). The family pension amount has been deposited in the savings bank account of the petitioner maintained at State Bank of India, Nuagaon ADB Branch and the opposite parties have also deposited the said amount of Rs. 3,10,335/- towards gratuity of the deceased employee in the said account of the present petitioner. It is alleged inter alia that within fourteen days of such deposit, i.e., on 14.8.2015, the opposite parties have withdrawn such amount from the savings account of the present petitioner without her knowledge. On 25.8.2015, while the petitioner had been to the bank to withdraw her amount, she came to know that Rs. 3,10,335/- have been withdrawn by the opposite parties from her bank account without her knowledge. From the copy of the document available under the Right to Information Act, she came to know that since the compensation awarded under the Workmens? Compensation Act (in short 'the Act') to the tune of Rs. 3,02,125/- paid to the petitioner, therefore, the pension is reduced to 30% of last salary of deceased employee from 50% as per Rule 56(4)(a)(i) of the Orissa Civil Services (Pension) Rules, 1992 (hereinafter referred to as "Rules, 1992"). As there was excess payment of family pension made during the month of May, 2010 to June, 2015, same was recovered from the said amount of gratuity.

  3. Be it stated that even if 30% is computed, the excess amount should be Rs. 2,41,152/-, which should have been adjusted, but instead of withdrawing said amount, the opposite parties have withdrawn the entire amount of Rs. 3,10,335/- from the bank account of the petitioner. Further, the petitioner challenges such reduction of the family pension amount to 30% as the concerned provisions of law is silent about reduction of the family pension in the event where workman died in an accident and got compensation under the Act.

  4. Be it stated that while the opposite parties decided to withdraw the benefit already granted, a notice should be issued to the petitioner for giving her opportunity of being heard but the action of the opposite parties in withdrawing the amount from the bank account of the present petitioner, without her knowledge, is violative of the principles of natural justice. On the other hand, principles of natural justice have been violated by the opposite parties by making recovery of the amount already paid. So, it is prayed for a direction to the opposite parties to grant family pension at the rate of 50% of pay last drawn by the deceased employee and refund the amount already withdrawn from the bank account with interest.

  5. Per contra, the opposite parties have filed a counter affidavit refuting the allegations made in the writ petition. It is the case of the opposite parties that the opposite parties are following the Rules, 1992 and as per the provision of Rule 56(4)(a)(i) of Rules, 1992, any Government servant, who is not governed by the Act, dies while in service after having rendered not less than seven years of continuous service, the rate of family pension payable to the family shall be equal 50% of the pay last drawn. Rule 56(2)(c) of Rules, 1992 postulates that after retirement from service and was on...

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