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2003 DIGILAW 1220 (MP)

Sagarmal Jain v. State of M. P.

2003-11-10

ASHOK KUMAR TIWARI, S.L.KOCHAR

body2003
JUDGMENT Tiwari, J. -- 1. This appeal has been filed under Clause X of the Letter's Patent against the order passed by the learned Single Judge on 20.1.2000 in Writ Petition No. 1595 of 1997. 2. The appellant petitioner filed a writ petition under Article 226 of the Constitution of India, praying to issuance of writ of mandamus or any other appropriate writ directing the respondents to pay the pensionary benefits to the petitioner with effect from 1.8.1985 with interest thereon at the rate of 24% per annum compounded annually for each month. 3(a) The appellant petitioner's case is that he was appointed on the post of Chemist in the erstwhile State of Madhya Bharat vide Commerce and Industries Department memo No. 5109/XIIIC/380/56 dated 13.10.1956 in its Dyeing, Bleaching and Calendering Plant at Ujjain. The management of the plant was transferred on 1.10.1963 to the Co-operative Societies Department. The management of the above plant was again transferred to M.P. State Industries Corporation Limited w.e.f. 1.7.1965 and the services of the petitioner was transferred on the terms and conditions for which petitioner had no option but to agree. 3(b). Thereafter, the management of the Calendering Plant, Ujjain was transferred to M.P. State Textile Corporation Limited and the petitioner was directed to take instructions and guidance from the Managing Director of the Textile Corporation. The name and style of the Ujjain Plant was subsequently changed by the M.P. State Textile Corporation Ltd., as "Avanti Processors, Ujjain". The petitioner continued to work in Avanti Processors as Assistant Works Manager and he was confirmed on the above post with retrospective effect from 30.7.1985. The petitioner was retired from service as Assistant Works Manager from 1.8.1985 vide Works Manager's office order No. AP/WM/85/532 dated 31.7.1985 who was not competent authority for passing order of retirement so the petitioner should be treated to be in service of M.P. State Textile Corporation Ltd., till an order of retiring him from service is not passed by the competent authority. 3(c). The petitioner was a quasi-permanent Government employee having put in eight and half years service and thus he was entitled to pensionary benefits on his retirement from service. Other persons who were placed in similar situation were granted pensionary benefits but the petitioner was not given these benefits 'even after the repeated requests made by the petitioner. Hence, he filed the petition. 4. Other persons who were placed in similar situation were granted pensionary benefits but the petitioner was not given these benefits 'even after the repeated requests made by the petitioner. Hence, he filed the petition. 4. Respondents have opposed the petition and filed the returns. The crux of the respondents case is that the petitioner has not given any option nor application to his parent department of his retention so it was presumed that he was ready to go to the subsequent department (institution) with all its Rules and Regulations. The petitioner had not submitted the option for retaining the Service Rules of M.P. Government. Hence, the petitioner is not entitled for pension and gratuity benefits. Petitioner has already availed the benefit of Contributory Provident Fund Scheme and he has not submitted his option regarding pensionary benefit before his retirement. He has opted the pensionary benefits on 16.8.1996 after eleven years of his retirement and meanwhile, he has availed the benefit of Contributory Provident Fund Scheme for which he was entitled. Hence, the petition deserves to be dismissed with costs. 5. Learned Single Judge vide the impugned order has partly allowed the petition. Hence, the petitioner has filed this appeal. 6. The only questions which are to be considered in this appeal are: (i) whether the order for granting pro rate pension only is erroneous? (ii) whether appellant is entitled to get interest on the amount of pension? 7. The contention of the learned counsel for the appellant is that in the case of one Mathura Prasad Mittal under similar situation Learned Single Judge has allowed the pension to the petitioner. The photocopy of the order of the Learned Single Judge of Gwalior Bench has been filed by the appellant as Annexure P-16. Order Annexure P-16 has become final this fact is not in dispute. The contention of the learned counsel for appellant is that in Misc. Petition No. 729 of 1988 also the pension was allowed and no order to pay pro rata pension was made. The copy of the order passed in this case has been annexed as Annexure P-15. Learned counsel submits that following the aforesaid orders, learned Single Judge should have allowed the petition with the direction for paying the pension and pensionary benefits. His contention is that the learned Single Judge of this Court erred in giving direction to pay pro rata pension. 8. Learned counsel submits that following the aforesaid orders, learned Single Judge should have allowed the petition with the direction for paying the pension and pensionary benefits. His contention is that the learned Single Judge of this Court erred in giving direction to pay pro rata pension. 8. Learned Single Judge has passed the order after considering all aspects of the matter in dispute. It is evident from the record that appellant had given the required option at late stage and he received the benefits of the Contributory Provident Fund and submitted application for confirmation of his services just four days before his retirement and availed Contributory Provident Fund Scheme as being temporary employee. Learned Single Judge has taken into consideration the orders annexed as Annexures P-15 and P-16. The facts of those cases are different from the facts of the present case. In those cases, the petitioners themselves were not responsible for inordinate delay in opting for pension benefis. 9. In the case of State of Kerala and others v. M. Padmanabhan Nair, reported in AIR 1985 SC 356 interest on the amount of pension has been allowed. The facts of the above case are different from the present case. In that case, the question of entitlement to pension was not in dispute. Employee was entitled to get the pension but payment was delayed merely on the ground of non-production of Last Pay Certificate. In the present case, the very fact of the entitlement to pension is in dispute. Appellant not only sent the option on delayed stage, he received the benefits of the Contributory Provident Fund Scheme as well. Similarly case of Dr. Umar Agrawal v. State of U.P. and others reported in 1999 AIR SCW 8876 is also of no help to the applicant in the facts and circumstances of the present case. Learned Single Judge did not commit any error in allowing pro-rata pension and dis-allowing the interest. The inferences drawn by the learned Single Judge are based on the material on the record and there is no ground to interfere in the findings of the learned Single Judge. 10. Consequently, this appeal is dismissed as it has no merits. ...................