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2015 DIGILAW 72 (BOM)

Gaurabai v. State of Maharashtra

2015-01-09

A.R.JOSHI, ANOOP V.MOHTA

body2015
JUDGMENT Anoop V. Mohta, J. 1. The petitioner, who is a widow of retired Police Constable Maroti Nagpure, has challenged a communication dated 1-9-2003 issued by respondent No. 2-Commissioner of Police, Nagpur and a letter dated 6-11-2003 issued by respondent No. 3-Office of Accountant General, Nagpur. By the said communication/letter, the respondents initiated proceeding to recover salary amount received by the deceased from the date of termination order dated 6-4-1988 till his date of retirement dated 30-6-1996 and as termination order dated 6-4-1988 maintained by the Maharashtra Administrative Tribunal (MAT) by order dated 19-6-2001. 2. The petitioner's husband died on 6-1-2001. Prior to that, pursuance to the order passed in Regular Civil Suit No. 794/1988, as he got the order of stay to his termination had continued in service with respondent No. 2, till the date of his retirement i.e. 30-6-1996. 3. The respondents, after the death of the petitioner's husband and in view of the order passed by the MAT, a provisional pension was calculated, without giving hearing and opportunity to the petitioner, showing his retirement as on 7-4-1988 in spite of the actual work done by him as per the civil Court order. 4. After hearing both the parties and after going through the record and above admitted position, in our view, the respondents permitted to work and paid the salary, as the deceased actually worked for 29 years, 4 months and 19 days, therefore, the retirement benefit, on the basis of such qualifying service, ought to have been granted. There was no question of recovery on the basis of wrong foundation by over looking the above admitted position about actual service after termination order merely because the MAT, by order dated 19-6-2001, maintained termination order dated 7-4-1988. The important aspect in the matter that the deceased admittedly worked till the date of his retirement, therefore, having completed the qualifying service, the pensionary benefit arises out of that ought to have been maintained and given to the petitioner-widow of such employee. Learned Assistant Government Pleader appearing for the respondents is unable to point out any rule whereby such benefit can be withdrawn in spite of the fact that the employee had completed qualifying service of 29 years, 4 months and 19 days, as recorded above. The pensionary benefit is, therefore, required to be calculated accordingly. Learned Assistant Government Pleader appearing for the respondents is unable to point out any rule whereby such benefit can be withdrawn in spite of the fact that the employee had completed qualifying service of 29 years, 4 months and 19 days, as recorded above. The pensionary benefit is, therefore, required to be calculated accordingly. Additionally, as noticed from the impugned order, without giving any opportunity, respondent No. 2, unilaterally issued the order/communication and insisted for the recovery by treating the pension/benefit given to the deceased and/or petitioner-widow with effect from 7-4-1988 up to 6-1-2001, was wrong and illegal and restricted the pension on compassionate retirement pension. We are inclined to observe that once the deceased continued in service pursuance to the interim order passed by the Court and completed the qualifying service, the legal heir/widow is entitled for the full pension in accordance with law. There is no question of such deduction by treating a termination dated 6-4-1988, the basis for deducting the pension and recovery of the amount already paid. The subsequent order of the MAT, though maintained the order of termination, till the facts and circumstances, such order of recovery is wrong and illegal. Therefore, we are inclined to set aside impugned communication dated 1-9-2003 and letter dated 6-11-2003. Therefore, the following order: ORDER (i) Impugned communication dated 1-9-2003 and letter dated 6-11-2003 are hereby set aside only to the extent of recovery of arrears of salary and the pension benefits. The petitioner-widow is entitled for all the service benefits of the deceased husband. (ii) We further direct the respondents to revise the salary dues, pension dues, family pension dues and present dues, as per the pay fixation of 1-1-1986 and 1-1-1996 in accordance with law. No costs.