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Chandrawati v. State Of U.P.& Others - WRIT - A No. 39048 of 1994 [2004] RD-AH 76 (16 February 2004)


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Court No.23

Civil Misc. Writ Petition No. 39048 of 1994

Chandrawati W/o late Abimanu Dubey  Vs. State of U.P. and others.

Hon'ble V.C.Misra,J.  

Heard Sri Mahendra Upadhyay, learned counsel for the petitioner and Sri Upendra Misra, learned counsel for the respondents.

The facts of the case are that the petitioner's husband died on 1.8.1993 during working period, leaving behind a minor son one daughter and the widow (the petitioner).  The petitioner's husband was sole earning member of the family, who was working on the post of Lekhpal  Tehsil Navgarh, District Siddharth Nagar .  After the death of the deceased, the petitioner approached the office of the deceased along with a formal application for family pension, gratuity, group insurance etc., which were not paid to the petitioner in spite of several reminders sent through registered post and on personal visit.  Thus, the petitioner was forced to file this writ petition seeking writ of mandamus directing the respondents to pay family pension to the petitioner since 1.8.1983 onwards along with gratuity, group insurance and other consequential benefits with compound interest @ 18 %.

Notice on behalf of respondents was accepted by the standing counsel, who was granted one month's time to file counter affidavit on 6.12.1994 by this court.  Again on 20.8.2002 one month's time and no more was granted to file counter affidavit to the standing counsel.  In spite of the stop order, no counter affidavit has been filed till date.  .

It is a settled law as laid down in A.I.R. 1966 Alld. page 156, A.I.R. 1962 Alld. page 407, A.I.R. 1987 S.C. page 479 and 1999 (82) Factory Law Report, page 709  that if no affidavit in rebuttal is filed and the averments made in the affidavit are not controverted then the said averments must be accepted as true and correct. The presumption is in favour of the petitioner in terms of Section 114 Illustration (G) of the Evidence Act. In the absence of counter affidavit, this Court is left with no option but to accept the averments made in the petition to be correct and true.

In the facts and circumstances of the case, the writ petition succeeds and is allowed with cost.  The respondents are directed to grant family pension, gratuity, group insurance and other consequential benefits since 1.8.1983, which have been approved along with interest @ 6 % with one month from the date of production of a certified copy of this order before the respondents.

Dated: 16.2.2004



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