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2014 DIGILAW 585 (GUJ)

Ranjanben J. Joshi v. State of Gujarat

2014-04-28

C.L.SONI

body2014
JUDGMENT C.L. Soni, J. 1. In this petition filed under Art. 226 of the Constitution of India, the petitioner has challenged resolution/order dated 26-7-2012 at Annexure-A passed by the State Government through its Education Department insofar as the sanction for family pension to the petitioner is given from 14-10-2010 and not from the date of the death of the husband of the petitioner. The case of the petitioner is that her late husband named Janakray Himatlal Joshi was appointed as Chowkidar by order dated 27-5-1983 in the pay-scale of Rs. 196-232 by the Director of N.C.C. (National Cadet Corps), Gujarat Dadranagar Haveli, Diu and Daman, Ahmedabad. While in service, the husband of the petitioner was served with charge-sheet on 19-6-1990 for remaining absent from service without permission. However, the husband of the petitioner died due to illness on 9-11-1990. Therefore, departmental inquiry initiated against him was not proceeded further. The petitioner has averred that on account of death of husband of the petitioner, the N.C.C. Group Head Quarters at Rajkot instructed the unit at Surendranagar to prepare family pension papers of the petitioner and to forward to the Director of Pension for necessary action vide a communication dated 4-12-1990. However, no further action in this regard was taken. The petitioner then made representation dated 20-4-2001 to the Director of N.C.C. at Ahmedabad, requesting for grant of family pension to her, but since nothing was done, she made application before alternative resolution mechanism forum at High Court on 29-10-2010, which was registered as Pre-Litigation No. 270 of 2010 in permanent Lok Adalat (VISAMA). Before such forum, it was represented to regularise the absent period of the husband of the petitioner by treating the leave as extraordinary leave, however, there was no response from the Education Department. Ultimately, by the impugned resolution dated 26-7-2012, the State Government has taken decision to sanction family pension to the petitioner with effect from 14-10-2010 on petitioner filing undertaking that she would accept family pension at the minimum rate. The petitioner has contended that such resolution is unjust and contrary to law. It is averred that since the husband of the petitioner died while in service, the petitioner became entitled to family pension following the date of death of the husband of the petitioner. The petitioner has contended that such resolution is unjust and contrary to law. It is averred that since the husband of the petitioner died while in service, the petitioner became entitled to family pension following the date of death of the husband of the petitioner. The petitioner has also averred that the husband of the petitioner was entitled for benefit of the revision of pay, and therefore, the petitioner is also entitled to difference of pay on pay fixation of the pay-scale of her husband. 2. The petition is opposed by affidavit-in-reply filed on behalf of the respondent No. 5, stating that the husband of the petitioner remained absent unauthorisedly for 1,612 days. It is stated that the family of the petitioner was paid an amount of Rs. 4,326/- on 6-6-1993. It is further stated that the petitioner moved application for family pension on 14-10-2010 i.e. after lapse of 20 years from the date of death of her husband and though there was huge delay on the part of the petitioner, the department on sympathetic ground passed order for granting family pension with effect from 14-10-2010. On behalf of the petitioner, rejoinder affidavit is filed pointing out that immediately after the death of husband of the petitioner, it was the obligation on the part of the department to prepare the family pension papers and process the same immediately after the death of husband of the petitioner. 3. I have heard learned Advocates for the parties. Learned Advocate Ms. Harshal Pandya for the petitioner submitted that the husband of the petitioner died while in service and pending the departmental inquiry initiated against him and before imposition in punishment in such departmental inquiry. He was, therefore, to be treated in continuous service till he passed away. Ms. Pandya submitted that when N.C.C. Head Quarters at Rajkot had initiated action by instructing the concerned unit at Surendranagar for preparing the family pension papers of the petitioner as back as in the month of December, 1990, there was no question of delay in petitioner making application for family pension benefits. Ms. Pandya submitted that even otherwise for the benefits of family pension, it is always for the department to take immediate action for conferring benefit of family pension to the family members of the expired employee. Ms. Ms. Pandya submitted that even otherwise for the benefits of family pension, it is always for the department to take immediate action for conferring benefit of family pension to the family members of the expired employee. Ms. Pandya submitted that even after the instructions issued by the N.C.C. Head Quarters, Rajkot, since nothing was done, the petitioner made application/representation to the Director of N.C.C., Gujarat State at Ahmedabad for grant of family pension application on 20-4-2001, and therefore, the impugned resolution could not have provided the benefit of family pension with effect from 14-10-2010. Ms. Pandya submitted that there is justification for asking the petitioner to give undertaking as part of the condition in the impugned order to accept family pension at minimum rate. Ms. Pandya, therefore, submitted that right from the appointment of the husband of the petitioner till he died, his entire service was required to be treated as continuous service for the purpose of benefit of pension to the petitioner, and therefore, the respondents were not justified in conferring family pension benefits to the petitioner with effect from 14-10-2010 and at minimum rate. Ms. Pandya submitted that the petitioner is entitled to get the benefit of re-fixation of the pay-scales of the husband of the petitioner. She thus, urged to allow the petition and grant the prayers made in the petition. 4. As against the above arguments, learned A.G.P. Mr. Niraj Ashar submitted that the husband of the petitioner was in habit of remaining absent and found to have remained absent unauthorisedly for long time on which departmental inquiry was initiated against him. Mr. Ashar submitted that on account of such absenteeism of husband of the petitioner, the petitioner in fact was not entitled to benefit of family pension. However, taking a sympathetic view of the matter, the State Government decided to confer family pension benefits to the petitioner with effect from date of her application i.e. 14-10-2010. Learned A.G.P. Mr. Niraj Ashar submitted that me petitioner made application for grant of family pension after a long lapse of 20 years. On account of such gross delay though the petitioner was not entitled to family pension, the department considered the case of the petitioner and when decided to confer benefit on the conditions mentioned in the impugned order, it is not open to the petitioner to challenge the conditions imposed in the impugned order. Mr. On account of such gross delay though the petitioner was not entitled to family pension, the department considered the case of the petitioner and when decided to confer benefit on the conditions mentioned in the impugned order, it is not open to the petitioner to challenge the conditions imposed in the impugned order. Mr. Ashar submitted that even to get the benefit of the family pension, necessary statutory requirements for such benefits are to be satisfied and in the case of the petitioner, since her husband was not completing requisite service on account of his long absenteeism, the petitioner cannot claim family pension as a matter of right. Mr. Ashar thus, urged to dismiss the petition. 5. Having heard learned Advocates for the parties, it appears that the husband of the petitioner was served with charge-sheet dated 19-6-1990 at Annexure-C to hold an inquiry under Rule 9 of Gujarat Civil Services (Discipline and Appeal) Rules, 1971 for the charges as per statement of the article of charges. 6. The Article of Charge reads as under: "ARTICLE OF CHARGE - I That the said Shri J.H. Joshi, Chowkidar in 26 Gujarat Bn. N.C.C., Surendranagar is a habitual defaulter and remained absent without prior permission from the superior authority. Shri J.H. Joshi was absent without permission and reason for following periods: In spite of the warnings given by the Unit Commander has not shown any improvement. He was given show-cause notice vide this Directorate letter No. 7062/State Estt/JHJ dated 11 May, 90 asking to reply within ten days as to why disciplinary action should not be taken against him and also why his service should not be terminated for being habitual absentee. In his reply dated 3 Jun., 1990 to the show-cause notice he has stated that he remained absent from duty without permission as his presence was necessary to look after his father who was sick and that he too was also not well. He has also pleaded ignorance of rules being a Class IV employee. These replies are not accepted as he has been given warnings in the past for remaining absent from duty without permission and he had given assurance (in writing) every time not to remain absent from duty in future without permission." As found stated in the Article of Charge, the reason given in reply of the husband of the petitioner for remaining absent was his sickness. However, such reply was not acceptable to the concerned authority, and therefore, the charge-sheet was issued to the husband of the petitioner for departmental inquiry. 7. However, before the actual inquiry could be conducted, husband of the petitioner died on 8-11-1990. 8. On account of the death of husband of the petitioner, the N.C.C. Head Quarters at Rajkot issued instruction dated 24-12-1990 at Annexure-A to the concerned unit at Surendranagar, where, the husband of the petitioner was serving to prepare family pension papers immediately and forward to the Director of Pension and Provident Fund at Ahmedabad and to intimate progress thereof to the head-quarters. In the said communication, it is also found mentioned that provisional pension must be sanctioned immediately in terms of Government of Gujarat Resolution dated 21-4-1982. 9. Therefore, it appears that it was for the concerned unit to take immediate action for grant of family pension to the petitioner. 10. Even otherwise, in the case of the family pension, it is always for the concerned department to approach the member of the expired employee for the purpose of preparation of family pension papers if the members of such expired employees are entitled for family pension. In the present case, as stated above, the head-quarters had already issued instruction for preparation of family pension. But, the benefits of the family pension was not made available to the petitioner. The petitioner, therefore, made application dated 22-4-2001 at Annexure-H to the Director of N.C.C., Gujarat State, Ahmedabad. It is not stated in the reply filed on behalf of respondent No. 5 that such application was not received by the respondent. But, now when the family pension is sanctioned by the impugned resolution, the effect is given from 14-10-2010 on the ground that the application made by the petitioner for family pension was dated 14-10-2010. This appears to be no good reason when the N.C.C. Head-quarters at Rajkot had already taken up the issue and instructed the concerned unit at Surendranagar for immediate action in the matter of grant of family pension to the petitioner and when the petitioner made application dated 20-4-2001 to the Director of N.C.C., Gujarat State, Ahmedabad for grant of family pension. 11. 11. The reasons for grant of family pension to the petitioner by the impugned resolution with effect from 14-10-2010 and on petitioner filing undertaking to accept at minimum rate appears to be the long absenteeism of the husband of the petitioner from service. 12. It is required to be noted that though the departmental inquiry was initiated against the husband of the petitioner for his absenteeism, however, within a very short duration after he was served with the charge-sheet, he passed away on account of his illness. The departmental inquiry, therefore, could not be concluded against him. In such circumstances, the husband of the petitioner was to be treated in continuous service from the date of his appointment till he expired for the purpose of giving benefit of family pension to the petitioner, especially when the N.C.C. Head-quarters had already initiated steps for grant of such family pension benefits to the petitioner. The respondent No. 1, therefore, was not justified to curtail the family pension benefits available to the petitioner right from the date following the date of death of her husband. In such view of the matter, the Court finds that the conditions imposed in the impugned resolution as regards grant of family pension benefits from 14-10-2010 and as regards giving of undertaking by the petitioner to accept minimum family pension appear to be unreasonable and without any rational. 13. In view of the above, the impugned Resolution dated 26-7-2012 at Annexure-A insofar as it has sanctioned family pension to the petitioner with effect from 14-10-2010 and not from the date of death of the husband of the petitioner as also insofar as it has imposed condition of giving undertaking by the petitioner to accept minimum family pension is required to be quashed and the petitioner is required to be held entitled to family pension with effect from the date following the date of death of the husband of the petitioner i.e. 10-11-1990. 14. As regards the other prayer about pay fixation and difference of arrears flowing from such pay fixation, the same at this stage cannot be entertained. 15. For the reasons stated above, the petition is partly allowed. 14. As regards the other prayer about pay fixation and difference of arrears flowing from such pay fixation, the same at this stage cannot be entertained. 15. For the reasons stated above, the petition is partly allowed. The impugned Resolution dated 26-7-2012 at Annexure-A insofar as the family pension to the petitioner is sanctioned with effect from 14-10-2010 and not from the date of death of the husband of the petitioner and insofar as asking the petitioner to file undertaking to accept minimum family pension, is quashed and set aside. It is held that me petitioner is entitled to family pension benefits with effect from the date following the date of death of the husband of me petitioner i.e. from 10-11-1990. The respondents are directed to confer family pension benefits to the petitioner within a period of 3 months from the date of receipt of this order. Rule made absolute to the extent stated above.