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2016 DIGILAW 1504 (GUJ)

Valiben Dahyabhai Bagada v. State of Gujarat

2016-07-27

ABHILASHA KUMARI

body2016
JUDGMENT : Abhilasha Kumari, J. 1. This petition under Article-226 of the Constitution of India has been preferred, with the following prayers: "(A) Your Lordship be pleased to admit and allow this petition and direct the respondent authorities to fix the pension of the petitioner after calculating the continuity of service of the petitioner from the date of her first appointment i.e. 07.01.1986 instead of 13.03.1995. (B) Your Lordship be pleased to allow this petition and issue writ of Mandamus or any other appropriate writ, order or directions in nature of mandamus directing the respondents to give all consequential benefits after calculating the service from 07.01.1986 as per the order of the Hon'ble High Court in SCA/5898/2002 including the benefit of higher pay scale. (C) Your Lordship be pleased to grant any other just and proper relief in the interest of justice and equity." 2. The brief facts of the case are that the petitioner was appointed as an Assistant Cook in the District Tuberculosis Center, Bharuch, on 07.01.1986. The services of the petitioner were terminated by respondent No. 3, District Tuberculosis Officer, Bharuch, without giving any reasons and in violation of the provisions of Section-25F of the Industrial Disputes Act, 1947, on 13.03.1995. Aggrieved thereby, the petitioner approached the Labour Court, Bharuch, by filing Reference Case No. 216/1995. By an order dated 07.09.2001, the Labour Court set aside the termination order passed by respondent No. 3 and directed her reinstatement in service along with continuity in service and back-wages. The petitioner was reinstated in service after the order of the Labour Court. However, respondent No. 3 challenged the order of the Labour Court by filing Special Civil Application No. 5898/2002 before this Court. By an order dated 06.02.2006, this Court (Coram: Mr. K.S. Jhaveri, J.) partly-allowed the petition by setting aside the judgment and award of the Labour Court in respect of the back-wages, but confirmed the said order regarding the reinstatement of the petitioner with continuity in service. In spite of the order of this Court granting continuity in service, respondent No. 3 passed an order dated 29.09.2006, considering the services of the petitioner from 13.03.1995, the date of her termination, instead of from 07.01.1986, her initial date of appointment. In spite of the order of this Court granting continuity in service, respondent No. 3 passed an order dated 29.09.2006, considering the services of the petitioner from 13.03.1995, the date of her termination, instead of from 07.01.1986, her initial date of appointment. This would mean that no continuity in service has been given by respondent No. 3, in spite of the orders of the Labour Court and this Court in this regard. 2.1 The petitioner made several oral representations to respondent No. 3 and also sent a legal notice through her advocate, on 13.02.2010. No reply was received to the said notice. The case of the petitioner is that though she is entitled to get pension on the basis of her initial date of appointment on 07.01.1986, the respondents have not fixed the same as per the said date, but have calculated the pension from 13.03.1995, the date of her termination. The petitioner has retired from service on 30.09.2015. As a result of the incorrect calculation of her pension made by respondent No. 3, she has suffered great financial hardship. Hence, the petitioner has approached this Court by way of the present petition. 3. Mr. Kashyap R. Joshi, learned advocate for the petitioner has submitted that, the manner in which respondent No. 3 has calculated the pensionary benefits of the petitioner, by the order dated 29.09.2006, is absolutely incorrect and contrary to the judgment and award of the Labour Court regarding continuity in service, which has been confirmed by this Court. It is further submitted that the petitioner has suffered great monetary loss in her meager amount of pension. The petitioner has retired from service and would face even greater hardship in the evening of her life. Hence, the respondents may be directed to grant the relief prayed for in the petition. 4. On 22.07.2016, when the petition was heard by this Court, Mr. Niraj Ashar, learned Assistant Government Pleader, was requested to take instructions in the matter and ask respondent No. 3 to remain present before this Court on 27.07.2016 at 11.00 a.m. Today, when the matter is taken up, it is submitted by Mr. Niraj Ashar, learned Assistant Government Pleader that respondent No. 3, Dr. S.A. Arya, In-charge Officer, District Tuberculosis Center, who is presently holding the charge of District Tuberculosis Center, Bharuch, is present in person. 5. Niraj Ashar, learned Assistant Government Pleader that respondent No. 3, Dr. S.A. Arya, In-charge Officer, District Tuberculosis Center, who is presently holding the charge of District Tuberculosis Center, Bharuch, is present in person. 5. Learned Assistant Government Pleader has fairly stated, on the basis of instructions given by Dr. S.A. Arya, that the pensionary benefits of the petitioner have to be calculated considering the continuity of service granted to her by the Labour Court and confirmed by this Court. Learned Assistant Government Pleader has stated, upon instructions from Dr. S.A. Arya, that respondent No. 3 would calculate the pension of the petitioner by treating her date of appointment as 07.01.1986 and not 13.03.1995. After such calculation, the pension would be paid to the petitioner regularly and the arrears of pension accruing from the correct calculation would be paid within a period of four weeks from the date of the receipt of a copy of this order. 6. The petitioner has been forced to knock on the doors of the Court time and again, first to challenge her termination before the Labour Court, then to defend the petition filed by respondent No. 3 challenging the award of Labour Court and for the third time by way of this petition, in order to get her just pensionary dues. This is the third round of litigation. While doing so, the petitioner has had to incur expenditure to pursue the litigation which, in the view of this Court, was totally unnecessary, considering the orders of the Labour Court and this Court. The filing of the present petition has been necessitated by the refusal of respondent No. 3 to grant the petitioner the benefits of the orders of the Labour Court and this Court regarding her continuity in service. 7. The petitioner was a Class-IV employee and her salary and pension would not be a large amount. For such a litigant to incur the expenditure of litigation thrice would have been a drain on her already meager finances. 7. The petitioner was a Class-IV employee and her salary and pension would not be a large amount. For such a litigant to incur the expenditure of litigation thrice would have been a drain on her already meager finances. The perverse attitude of the officer who was holding the post of District Tuberculosis Officer, Bharuch, at the relevant point of time when the order dated 29.09.2006 was passed calculating the service of the petitioner only from the date of her termination and not from her initial appointment, in spite of the orders of this Court and the Labour Court, has resulted in great hardship to the petitioner. Apart from that, it amounts to flouting the orders of this Court and the Labour Court. 8. The Officer holding the post of respondent No. 3 at the relevant point of time could not be called to appear before this Court as he is no longer on the said post. Dr. S.A. Arya has appeared though he is only holding the charge of the post and has fairly conceded that the calculation of the pension of the petitioner ought to have been made as per the orders of this Court and the Labour Court by granting continuity of service. The Court cannot find fault with the stand of Dr. S.A. Arya who is not the author of the order dated 29.09.2006. 9. At the same time, the plight of the petitioner cannot be ignored. The State has to take responsibility for the action of its officers who have acted in their official capacities in discharge of their duties, whether rightly or wrongly. 10. In the above view of the matter, the following order is passed: "Respondent No. 3 shall pay pension to the petitioner, by calculating the date of her appointment as 07.01.1986 and giving her continuity in service, as granted by this Court and the Labour Court. The pension shall be paid as per the said calculation from month to month, hereafter. The arrears of pension shall be paid within a period of four weeks from the date of the receipt of a copy of this order with interest at the rate of 9% per annum from the date of her retirement till the date of payment." As the petitioner has been unnecessarily dragged to the Court, the State Government shall pay costs of litigation at the rate of Rs. 10,000/- (Rupees Ten Thousand only) to the petitioner, within a period of fifteen days from today. At this stage, Mr. Niraj Ashar, learned Assistant Government Pleader, has requested the Court that costs may not be imposed. He has submitted that Dr. S.A. Arya, In-charge Officer, District Tuberculosis Center, is only holding charge of the office of District Tuberculosis Center, Bharuch and was not on this post at the relevant period of time. The learned Assistant Government Pleader has strenuously argued against the imposition of costs with all the force at his command. Insofar as the learned Assistant Government Pleader is concerned, this Court must commend the competence with which he has attempted to defend the State Government and requested the Court not to impose costs. The Court would like to make it very clear that costs have been imposed not because of any lacunae in the arguments of the learned Assistant Government Pleader, who could not have defended the State better than he has, but for the fact that a poor litigant has been unnecessarily dragged into litigation despite the orders of this Court and the Labour Court, and that too to get her pensionary dues. Though the agony of the petitioner cannot be compensated this Court is of the view that the least the State Government can be asked to do is to pay some amount to her as costs of the litigation. For this reason, the Court has passed the order imposing costs, which is maintained. The order imposing costs may not come in the way of the present incumbent on the post of respondent No. 3 or the learned Assistant Government Pleader, both of whom have taken a fair stand. Learned Assistant Government Pleader has performed his duties as a Law Officer of the State and an Officer of the Court to the best of his abilities. The petition is allowed, in the above terms. Rule is made absolute, accordingly.