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2016 DIGILAW 129 (JK)

Nargis Begum v. J&K S. R. T. C.

2016-03-23

ALI MUHAMMAD MAGREY

body2016
ORDER : 1. Ghulam Mohammad Dar (for short deceased employee) - husband of present petitioner, was appointed as apprentice in J&K State Road Transport Corporation in the year 1966. The deceased employee, as writ petition would reveal, was absorbed as Helper in respondent corporation and thereafter confirmed as a permanent employee. He was, vide order No. RTC/EC-II/2095 dated 27th September, 1980, terminated from services. He threw challenge to his termination before Industrial Tribunal/Labour Court, J&K Srinagar. During pendency of claim petition, Ghulam Mohammad Dar (deceased employee) passed away and his legal heirs were brought on record and substituted in place of deceased employee. Industrial Tribunal/Labour Court, J&K Srinagar, vide order dated 7th September, 2000 quashed Termination Order dated 27th September, 1980 and respondents were directed to pay 60% of the back wages of deceased employee to his legal heirs from 19.1.1987 till the date of award at the revised rates, if any. The respondents were also directed to pay costs of litigation. According to petitioner, back wages to the extent of 60% as also litigation costs of Rs. 5000/- have been paid to family of deceased employee. 2. Petitioners case is that the net effect of quashment of termination order by Industrial Tribunal/Labour Court, is that deceased employee was to be treated as a regular employee till the date of his death and after his death his widow was entitled to receive the full pension up to the date of superannuation. Petitioner, in writ petition on hand, states that since last pay of deceased employee has been fixed @ Rs. 3935/- per month, the pension is to be calculated on the said amount up to the period of seven years and thereafter pension is to be paid under applicable rates. However, in terms of PPO No. 404877, impugned in writ petition, pension has been fixed @ 60% w.e.f. 22.1.2000 to 21.1.2007 and that respondents have sanctioned pension at the rate of Rs. 2361/- instead of Rs. 3935/- per month. However, in terms of PPO No. 404877, impugned in writ petition, pension has been fixed @ 60% w.e.f. 22.1.2000 to 21.1.2007 and that respondents have sanctioned pension at the rate of Rs. 2361/- instead of Rs. 3935/- per month. By this, petitioner is aggrieved and has come with instant writ petition, seeking following relief: "(a) By writ of mandamus, commanding respondents to implement judgment of labour court quashing the termination order of the husband of petitioner and treating him as a regular employee of the corporation on the date of his death and allow her full pensionary benefits admissible to such employees whose death takes place in harness and release full pensionary benefits at normal rates along with arrears from the date of her entitlement. (b) By writ of Certiorari quashing PPO No. 404877 to the extent it reduces the pension of the petitioner to the extent of 60% of the normal rates applicable to the case. (c) By writ of mandamus, commanding respondents to release withheld amount of pension and release arrears of remaining portion of the pension and allowances for the intervening period, which has not been allowed so far. (d) By writ of mandamus, commanding respondents to take disciplinary action against the officer/officers responsible for deliberately circumventing and bypassing the court orders while processing and passing impugned order. (e) By writ of mandamus, commanding respondents to pay interest @ 20% per annum for withheld amount of pension and also pay adequate amount of compensation to petitioner for the ordeal she has faced due to the illegal and harsh actions of respondents, the compensation being qualified to the tune of Rs. 1.00 lakh." 3. Respondents, in their objections, state that in the facts and circumstances of the case, none of reliefs prayed for by petitioner can be granted. It is insisted that under rules the pension/family pension is available to an employee or his family at the rate equal to the last pay drawn by the deceased Government servant before his death for a period of seven years from the date following the date of death or for the period up to the date on which the deceased Government servant would have attained the age of superannuation whichever is earlier. It is averred that after tenability of family pension at the rate equal to last pay drawn is over, the rate of family pension under rules is equal to the pension that the deceased would have been entitled to on the basis of the emoluments on the date of his death but counting services upto the date on which he would have retired in the normal course. It is also contended that in terms of the Award passed by Labour Court, deceased employee was held entitled to 60% of the pay as back wages from 19.1.1987 till the date of Award i.e. 7.9.2000 and that deceased employee passed away on 22.01.2000. The last pay drawn by deceased employee, according to respondents, was fixed at Rs. 2361/- on the date of his death/retirement. On the said grounds, respondents seek dismissal of writ petition. 4. I have heard learned counsel for parties and considered the matter. 5. Learned counsel for respondents, while opening his limb of arguments, states that the average emoluments are determined with reference to emoluments last drawn and that the petitioner is not entitled to what she has sought for in writ petition on hand. Learned counsel for petitioner, however, states that petitioners case is not one that relates to an employee, who in normal course retires or dies and whose pensionary benefits are calculated on the basis of last pay drawn. But in the present case, deceased employee passed away during pendency of claim petition filed by him against his termination order before the Labour Court/Industrial Tribunal, and his termination from service was set- aside after his death, thus, there was no occasion to presume that the moment petitioners husband died, the pay drawn at that time is to be taken into consideration, for calculation of average emoluments. Learned counsel further states that once termination order was declared illegal and as a corollary quashed by Labour Court/Industrial Tribunal, the petitioners husband has in essence been reinstated, his emoluments, for the purposes of ascertaining the average, should be taken at what the emoluments would have been, had he not been terminated. While saying so, learned counsel invites attention of this Court to Note 1 to Rules 242 of J&K Civil Services Regulations, 1956. While saying so, learned counsel invites attention of this Court to Note 1 to Rules 242 of J&K Civil Services Regulations, 1956. It would be relevant to extract the same here: "Note 1 - If during the last one year or [ten months] of his service, an officer has been absent from duty on leave without allowance or having been suspended, has been reinstated without forfeiture of service, his emoluments, for the purposes of ascertaining the average, should be taken at what they would have been, had he not been absent from duty or suspended." 6. Learned counsel for petitioner also refers to Note 6 of Article 242 of J&K Civil Services Regulations, 1956, to contend that even in terms of the said Note in case a Government servant has been placed under suspension and later on reinstated after general revision and order of reinstatement mentions that the period of suspension would count as duty for all purposes but the pay and allowance in respect of the period of suspension would be restricted to the subsistence allowance already drawn and benefit of fixation allowed notionally without any arrears, yet the notional pay in the revised pay scales so allowed is to be taken into account for calculating the average emoluments of pension for last ten months though it may not have been actually drawn by such employee. 7. Note 6 to Rule to Article 242 of J&K Civil Services Regulations, apart from Note 1 to Article 242, is as well clinching the matter. It would be advantageous to reproduce Note 6 hereunder: "Note 6 - Cases may arise where a Government servant might have been placed under suspension before the general revision of pay scales viz. 1.1.1982 and has been reinstated after the general revision and the orders of reinstatement state that the period of suspension would count as duty for all purposes but the pay and allowances in respect of the period of the suspension would be restricted to the subsistence allowance already drawn. 1.1.1982 and has been reinstated after the general revision and the orders of reinstatement state that the period of suspension would count as duty for all purposes but the pay and allowances in respect of the period of the suspension would be restricted to the subsistence allowance already drawn. If in any such case the benefit of fixation in the revised scale may have been ordered to be allowed notionally without any arrears the notional pay in the revised pay scales so allowed may be taken into account while reckoning the average emoluments of pension for the last ten months though it may not have actually been drawn." What emerges from above Note 6 of Article 242, is that even if the pay and allowances of an employee, who was placed under suspension, on his reinstatement, have been restricted to the subsistence allowance, which (subsistence allowance), obviously, are not equivalent to full pay/salary, and even fixation in the revised scale is allowed notionally, yet average emoluments of pension for last ten months are to be taken as if the employee has actually drawn the said notional pay in revised pay. In the present case, termination of deceased employee has been declared illegal by Labour Court/Industrial Tribunal, thus, exonerating him of all the charges that were levelled against him for his termination from the services and put him to the position as being an employee, without any blemish, retiring on attaining the age of superannuation or dyeing while in service, making him entitled to all the benefits accruing in such event in his favour. In that view of matter, Labour Court/Industrial Tribunal declaring termination order of deceased employee illegal and quashing it, has reinstated deceased employee. Thus, the emoluments, for the purposes of ascertaining the average, should be taken at what the emoluments would have been, had the deceased employee not been terminated from service. 8. Learned counsel for petitioner also refers to judgment passed in case titled Lakshmi Rani Baloria vs. State and Others, 2005 (2) SLJ 590. Thus, the emoluments, for the purposes of ascertaining the average, should be taken at what the emoluments would have been, had the deceased employee not been terminated from service. 8. Learned counsel for petitioner also refers to judgment passed in case titled Lakshmi Rani Baloria vs. State and Others, 2005 (2) SLJ 590. Though the said case is different from one that has been projected in the present case, yet it provides that in the event a Government servant dies before the conclusion of departmental/judicial proceedings instituted against him, he should be treated as if exonerated of all charges levelled against him and entitled to all benefits as if the person retired in normal course without there having been any departmental/judicial proceedings instituted against him. In the present case though deceased employee was terminated from services, yet on throwing challenge thereto, he was exonerated of all charges levelled by respondent corporation for his termination from service, by Labour Court/Industrial Tribunal. Therefore, deceased employee is entitled to all retiral benefits and so is his family including present petitioner as if deceased employee retired/died in normal course without there having been any case either departmental or judicial or for that matter termination order, which was declared illegal by the Tribunal and accordingly, quashed. 9. For the reasons discussed, writ petition is allowed and impugned PPO No. 404877 quashed. Respondents are directed to implement the judgment dated 7th September, 2000 of Labour Court/Industrial Tribunal and treat petitioners husband (Late Ghulam Mohammad Dar) as regular employee and allow full pensionary benefits admissible to deceased employee and release all pensionary benefits at normal rates along with arrears, if any, from the date of entitlement, in favour of petitioner. 10. Disposed of.