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1993 DIGILAW 364 (GUJ)

KASHIBEN N. WALA v. BARWALA NAGAR PANCHAYAT

1993-08-06

K.J.VAIDYA

body1993
K. J. VAIDYA, J. ( 1 ) KASHIBEN, widow of one Najbhai Apabhai Wala by this writ petition under Arts. 14, 16 and 226 of the Constitution of India, has moved this Court inter alia praying for appropriate writ, order or direction to Barwala Nagar Panchayat and the State Government, respondent nos. 1 and 2 respectively to immediately pay her due amount of family pension and gratuity alongwith other incidental benefits, if any, available to her. ( 2 ) THE petitioner is a widow of the deceased Najbhai Apabhai Wala who was working with the respondent Panchayat as a peon right From the year 1959 till he expired in the year 1989, i. e. , after putting service of 30 years. According to the petitioner, as per the Scheme of the government framed in the year 1972 and the decision of this Court rendered in case of Mankuvarba Manharsinh Vaghela v. Tharad Nagar panchayat and Am. , reported in [1992 (1)] XXXII) (1) GLR 375, she is entitled for the family pension. It is her case that despite her repeated oral requests to the respondents, the said amount is not paid which has constrained her to knock the doors of this Court inter alia praying for appropriate reliefs as stated above in para 1 of this judgment. ( 3 ) AS against the above, Mr. D. R. Bhatt, the learned Advocate for the respondent No. 1-Panchayat, while disputing the claims of the petitioner, has made the following three submissions : (I) That Najbhai Apabhai Wala - husband of the petitioner died on 6- 4-1989 and that the present petition has been filed after his death, i. e; on 28-8-1992. In this view of the matter, since the petition is filed after the lapse of three years, the same ex-fade suffers from vice of delay and laches, and accordingly on the said count alone, the same deserves to be dismissed. (II) That at the time of joining his service, Najbhai had given a false date of birth to the Panchayat authorities and as it is subsequently revealed, the real date of birth of the deceased was 16-2-1920, in this view of the matter, in the ordinary course, he would have retired from service on reaching the age of 60 years in the year 1980. (III) That the petitioner has been paid arrears of the Provident Fund, and therefore, she is not entitled to receive the family pension from the panchayat inasmuch as the said respondent is not getting any grant from the Government. Mr. Bhatt on the basis of the above submissions finally urged that in view of the aforesaid disabilities of the petitioner, it is indeed not possible for the Panchayat to pay any pension to her, as claimed and prayed for. ( 4 ) HAVING heard the learned Advocates for the respective parties, it is very clear that the respondents have not been able to make out any case to refuse the reliefs prayed for by the petitioner. ( 5 ) NOW turning to the first contention raised on behalf of the respondent-Panchayat that of alleged delay in filing the present petition, it may be stated that there is no substance whatsoever in it. Right to pension is ultimately held to be a right to the property which is by now a settled law. Not only that but the same is a recurring right. In this view of the matter, the plea of limitation, delay and laches being out of question would not survive. Further, assuming that there indeed was some delay, as alleged by the learned Advocate for the respondent, then also, the State Government and/or public institution like Panchayat as far as possible should refrain from taking such technical pleas against its own citizen and more particularly, in case wherein its employee has served the institution for 30 long years and his helpless widow approaches it for her legitimate rightful due. In this view of the matter, there being no substance, the first contention raised on behalf of the respondent stands rejected. ( 6 ) COMING to the second contention regarding giving false birth date by Najbhai, at the very outset, it may be stated that the same is both shocking and surprising. It is indeed a matter of great surprise that during as long a period as that of 30 years, at no point of time, it ever occurred to the respondent-Panchayat that there was some thing fishy about giving the date of birth by the deceased Najbhai. It is indeed a matter of great surprise that during as long a period as that of 30 years, at no point of time, it ever occurred to the respondent-Panchayat that there was some thing fishy about giving the date of birth by the deceased Najbhai. It is only when the widow of Najbhai filed the present petition before this Court praying for pension, that it struck or so to say it got time to fish out the objection to defeat her claim on the ground of alleged false date of birth. This as stated above, is not simply surprising but shocking too. What indeed the Panchayat administration was doing for all these 30 years ? It appears that this contention has been raked up at the time when the deceased Najbhai is no more in this world to meet with the same. If indeed as alleged by the respondent-Panchayat there was something fishy about giving the birth date by the deceased Najbhai, then in that case in the first place appropriate inquiry ought to have been made and an explanation called for from najbhai during his life span, and in the second place, that having not been done so, explanation of all the concerned involved in the process of verifying, checking and maintaining the service record of the employees can as well be called upon to know as to how, why and under what circumstances they did not wake up to their duties earlier in the interest of the Panchayat to find out the truth or the falcity of the age of Najbhai. Thus, having regard to the facts and circumstances of the present case, it is simply not possible to accept the second contention raised on behalf of the respondent. In fact, with a view to see that such an eventuality regarding correctness and genuineness of the birth date of any employee does not occur in future, it would indeed be quite advisable to insist upon the concerned branch of the department to verify the date of birth of the employee at the time of entry in service, and thereafter at the earliest, when some such honest doubt about the same arises. ( 7 ) THAT takes us to the last and third contention raised on behalf of the Panchayat that as the arrears of Provident Fund has been paid to the petitioner, she is not entitled to receive the family pension from the respondent-Panchayat. Here also this Court is not impressed with the submissions made by Mr. Bhatt. In fact, no efforts have been made by mr. Bhatt, the learned Advocate for the respondent-Panchayat to distinguish the decision rendered in the case of Mankuvarba Manharsmh Vaghela (supra), which is subsequently followed by this Court (Coram : K. J. Vaidya, J.) in Spl. Civil Application No. 8792 of 1992, decided on 14-7-1993, which in the opinion of this Court squarely covers the facts and circumstances of the present case. Thus, in view of the facts and circumstances of the present case, as discussed above, there is no alternative left with this Court but to allow this petition. ( 8 ) IN the result, this petition is allowed. The respondents are directed to compute the family pension under the Family Pension Scheme framed by the Government under Resolution dated 1/01/1972, as modified from time to time, and pay to the petitioner arrears of family pension and allowances on the basis of such computation within two months from the date of receipt of this judgment. The arrears of pension and other legal dues including gratuity payable to the petitioner shall be paid with 12% interest per year from the date the said legal dues and allowances became payable, till the date of actual payment. The respondents are further directed to pay to the petitioner family pension at the minimum rate of Rs. 375/ - per month plus allowances with effect from 1-8-1993 regularly every month on or before 7th of each month. It is clarified that this minimum pension will be subject to the adjustment, if additional family pension is payable to the petitioner. The additional pension payable to the petitioner shall also carry interest 12% per annum from the date such additional pension is payable till the date it is actually paid. It is further clarified that primary obligation to pay family pension to the petitioner, as aforesaid shall be of the respondent-Panchayat. It is further clarified that liability to pay pension, etc. , as aforesaid shall be joint and several of the respondent- panchayat and the State Government. It is further clarified that primary obligation to pay family pension to the petitioner, as aforesaid shall be of the respondent-Panchayat. It is further clarified that liability to pay pension, etc. , as aforesaid shall be joint and several of the respondent- panchayat and the State Government. However, if there is any dispute between the respondent-Panchayat and the State Government as to whose liability it is to pay the aforesaid dues, it is none of the concern of the petitioner, and the respondent-Panchayat shall pay the entire due amount to the petitioner subject to whatever dispute regarding the same with the state Government. Rule made absolute with costs. The cost is quantified at Rs. 500. 00. Incidentally, it may be clarified that breach of this order will amount to contempt of the Court. .