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2016 DIGILAW 772 (GAU)

Moheswari Hazarika v. State of Assam

2016-08-12

MICHAEL ZOTHANKHUMA

body2016
ORDER : Michael Zothankhuma, J. Heard Mr. Y.S. Mannan, learned counsel for the petitioner. Also heard Mr. B.K. Sharma, learned Standing Counsel, Social Welfare Department as well as Mr. C Baruah, learned Standing Counsel, Accountant General's Office. 2. Learned counsel for the petitioner submits that the petitioner was appointed on 28.12.1974 as Mukhiya Sevika in a Project under the Assam State Social Welfare Advisory Board and she joined he said post on 20.01.1975. 3. Thereafter, the Chairman of the Assam State Social Welfare Advisory Board wrote a letter dated 23.07.1974 stating that the State Government in their letter No. DSW(G)-2/74/107 dated 19.03.1974 has ordered the State Board to take over the administration of all the Family & Child Welfare Projects in the State w.e.f. 01.04.1974 on behalf of the Govt. of Assam with its assets, properties and all existing workers on the same terms and conditions and protection of last pay as on 31.03.1974. 4. The under Secretary to the Government of Assam, T.A. & W.B.C. Department wrote a letter dated 03.01.1976 stating that the State Government had approved the scale of pay to the employees of the Family & Child Welfare project taken over by the State Board on behalf of the State Government w.e.f. 01.04.1974. The said letter also states that the pay scale of the Mukhiya Sevika would be Rs. 200-500 per month. Subsequently, letter dated 29.05.1986 was issued by the Deputy Secretary to the Govt. of Assam, Department for Welfare of PT & BC etc, which states that the revised pay scale payable to a Mukhiya Sevika was Rs. 580-1165 per month. Subsequent letter was issued receiving the petitioner's pay scale. 5. The Directorate, Social Welfare & Probation, Assam thereafter issued an Office Order dated 26.07.1988 wherein the petitioner was temporarily appointed in the Borkhetri Family and Child Welfare Project, Nalbari w.e..f 01.10.1987 against the post of Mukhiya Sevika in the pay scale of Rs. 580-1165 per month. 6. The petitioner thereafter retired as Mukhiya Sevika on 30.06.2007. 7. Learned counsel for the petitioner submits that the petitioner having been in service w.e..f 20.01.1975 and as the services of the petitioner had been taken over by the State Government w.e.f. 01.04.1974, as reflected in the letter dated 23.07.1974 issued by the Chairman of the Assam State Social Welfare Advisory Board, the State respondents were to give the petitioner pension by counting her service w.e.f. 20.01.1975. In this respect, learned counsel for the petitioner submits that the petitioner had written a letter dated 06.01.2009 reminding the Director, Social Welfare Department, Assam that she had retired on 30.06.2007 and that even after 1 years, her pension case had not been processed. She had accordingly prayed that necessary action should be taken for sanction of her pension. 8. Learned counsel for the petitioner submits that similarly situated persons have approached this Court and this Court had vide order dated 22.05.2003 passed in WP(C) No. 5227/2011 and order dated 22.08.2007 passed in WP(C) No. 618/2006, directed the respondents to release pension by reckoning the period of service of those persons from the date of their joining of the Assam State Social Welfare Advisory Board. 9. Learned counsel for the petitioner submits that the petitioner had also approached this Court vide WP(C) No. 4976/2011 praying for release of pension and the same was disposed off vide order dated 22.05.2012, wherein a direction was issued to the respondents to finalise the petitioner's pension. 10. Learned counsel for the petitioner submits that subsequently, the respondents had approached the petitioner and asked her to draw pension only w.e.f. 01.10.1987. The petitioner being in dire need of money, the petitioner agreed to the proposal of the respondents for drawing the pension w.e.f. 01.10.1987 vide letter dated 03.07.2013. Thereafter, the petitioner was given pension in the year 2014 by reckoning her service period from 01.10.1987. 11. Learned counsel for the petitioner submits that the petitioner has not waived her right to get pension for ignoring her service period prior to 01.10.1987. He submits that it was due to the financial difficulties faced by the petitioner that she was forced to accept pension w.e.f. 01.10.1987. 12. Learned counsel for the petitioner submits that there cannot be any estoppel in law and as pension is a fundamental right of a Government servant, the respondents are bound to give pension to the petitioner as per her retirement dues. He thus submits that a direction should be issued to the respondent authorities directing them to release the petitioner's pension, counting her whole period of service from her date of joining, i.e., 20.01.1975. 13. Mr. He thus submits that a direction should be issued to the respondent authorities directing them to release the petitioner's pension, counting her whole period of service from her date of joining, i.e., 20.01.1975. 13. Mr. C. Baruah, learned Standing Counsel, Accountant General's office submits that the pension of the petitioner had been reckoned by counting her service w.e.f. 01.10.1987, as the pension papers of the petitioner submitted to the Accountant General's Office by the Social Welfare Department showed that her service period was from 01.10.1987 till her date of retirement, which was on 30.06.2007. He submits that the PPO in favour of the petitioner was issued on 12.08.2013. He also submits that there is no infirmity in the decision of the Accountant General's office to accord sanction for payment of pension to the petitioner on the basis of service period of the petitioner, i.e. w.e.f. 01.10.1987, as the said particulars had been furnished to the Accountant General's office by the department concerned. 14. Mr. BK Sharma, learned Standing Counsel, Social Welfare Department submits that the petitioner having waived her right for counting her service period from 20.01.1975 till 30.09.1987 and the same also having been put down in writing by the petitioner, the petitioner cannot now claim pension by/for counting her period of service from 20.01.1975. He also submits that the petitioner is estoppel from claiming the amount of pension on the basis of the unclaimed period of service. 15. I have heard the learned counsels appearing for the parties. 16. In the case of State of Bihar and Ors. v. Project Uchcha Vidya, Sikshak Sangha and Ors., reported in (2006) 2 SCC 545 , the Apex Court has held that the Rules of estoppel have no application where contention as regard constitutional provisions or a statute is raised. 17. This Court in its judgment and order dated 22.05.2003 passed in WP(C) No. 5227/2011 had directed the respondents to pass all necessary orders to enable the petitioner to receive the regular pension including the arrear amount and by taking into account the total length of service, which included the period of service under the Assam State Social Welfare Advisory Board. The Court in WP(C) No. 5227/2011 has also held that the entitlement for grant of pensionery benefits, keeping in mind the nature of the relief that is bestowed on an incumbent by the pension granted must be liberally interpreted. The Court in WP(C) No. 5227/2011 has also held that the entitlement for grant of pensionery benefits, keeping in mind the nature of the relief that is bestowed on an incumbent by the pension granted must be liberally interpreted. It is also not in dispute that the judgments of this Court passed in WP(C) No. 5227/2011 and WP(C) No. 618/2006 squarely covers the case of the petitioner. 18. The judgment and order dated 22.05.2003 passed in WP(C) No. 5227/2011 and the order dated 22.08.2007 passed in WP(C) No. 618/2006 as attained finality as no challenge has been made to the same till date. Thus as per the above judgments, the respondents are bound to pay to the petitioner her pension by reckoning her period of service from her date of joining, i.e., 20.01.1975. 19. The entire controversy, however, is with regard to the letter dated 03.07.2013, which is reproduced below:- "With due respect, I beg to state that I have retired from service on 30.06.2007 but till date my pension case is yet to finalize. That, Sir, I may be allowed to draw pension benefit with effect from 01.10.1987 as I am facing acute financial hardship to maintain my house hold affairs in the old age. I, therefore, request you kindly to forward my pension papers to the office of the Accountant General, Assam, Guwahati-29 for final settlement as prayed for. This is for favour of your kind information and necessary action." 20. Learned counsel for the petitioner submits that the said letter dated 03.07.2013 had been made due to the dire financial difficulty faced by the petitioner at that time, while the respondents' counsel submitted that the petitioner had waived her right due to the above letter. 21. On considering whether the petitioner could have waived her right for reckoning her period of service from 20.01.1975, for the purpose of calculating her pension, I find that the petitioner had initially agreed to the proposal for calculating her service w.e.f. 01.10.1987. However, the said agreement had been done due to the financial distress suffered by the petitioner at that relevant point of time. 22. In WP(C) No. 4976/2011 filed by the petitioner, the order dated 22.05.2012 does not contain any submission or finding that the petitioner had agreed to have her period of service counted only from 01.10.1987 for the purpose of calculating her pension. 22. In WP(C) No. 4976/2011 filed by the petitioner, the order dated 22.05.2012 does not contain any submission or finding that the petitioner had agreed to have her period of service counted only from 01.10.1987 for the purpose of calculating her pension. In fact, there would have been no requirement for the petitioner to have filed WP(C) No. 4976/2011, claiming her pension if the State respondents had given her pension immediately on her retirement. 23. Rule 183 of the Assam Services (Pension) Rules, 1969 states that all authorities dealing with applications for pension under these rules should bear in mind that the delay in the payment of pensions involves hardship. It is essential to ensure, therefore, that an officer begins to receive his pension on the day on which it becomes due. 24. Note 1 to Rule 183 of the Assam Services (Pension) Rules, 1969 states that annual superannuation statement (vide rule 95) should be checked at least quarterly to see if any officer due to retire within one year has not yet submitted his pension application. Attention of such officer should be drawn to rule 184 and they should be reminded to submit their formal application. 25. Rule 188 to Rule 191 of the Assam Services (Pension) Rules, 1969 relates to a Gazetted officer and Rule 192 to Rule 195 relates to non-gazetted officer with regard to the application and sanction of pension. 26. A reading of the above Rules goes to show that the processing and sanction has to be completed so as to enable the officer to issue the pension payment order not later than the date of which the employee is due to retire. 27. In the case of Deoki Nandan Prasad v. State of Bihar, reported in (1983) 4 SCC 20 , the Apex Court has held that pension is not a bounty or discretion of the Government. It has also held that the right to receive pension flows not from passing an order but by virtue of the Rules. In the present case, the grant of pension to the petitioner is governed by the Assam Services (Pension) Rules, 1969. It has also held that the right to receive pension flows not from passing an order but by virtue of the Rules. In the present case, the grant of pension to the petitioner is governed by the Assam Services (Pension) Rules, 1969. Explanation VI of Section 11 of the CPC states as follows: "Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating." 28. In the present case, the petitioner retired on 30.06.2007, as such the pension payment order should have been ready on the date of her retirement. However, as submitted by the Accountant General's Office, the petitioner's pension payment order was issued only on 12.08.2013, i.e. six years after her date of retirement. 29. The fact that delay in payment of pension causes hardship to A retired employee is also clearly reflected in the Assam Services (Pension) Rules, 1969. Thus, with regard to the letter dated 03.07.2013, I do not find that the same is enforceable in respect of waiver of the petitioner's right to count her service period from 20.01.1975, for the purpose of calculating her pension. The said letter, to my mind, seems to have been written by the writ petitioner due to the superior bargaining power of the Government vis-a-vis, a poor retired lady, who had superannuated six years earlier from her service. The unfair advantage taken by the respondents in making the petitioner agree to write the letter dated 03.07.2013 thereby making her lose her legitimate dues cannot be used against her. It is not expected of the Government to take advantage of a retired poor lady and her financial hardship to deprive of her legitimate dues. 30. In the case of Balmer Lawrie & Co. Ltd v. Partha Sarathi Sen Roy, reported in (2013) 8 SCC 345 , the Apex Court has held in paragraph 30 as follows:- "30. It is not expected of the Government to take advantage of a retired poor lady and her financial hardship to deprive of her legitimate dues. 30. In the case of Balmer Lawrie & Co. Ltd v. Partha Sarathi Sen Roy, reported in (2013) 8 SCC 345 , the Apex Court has held in paragraph 30 as follows:- "30. Where the actions of an employer bear public character and contain an element of public interest, as regards the offers made by him, including the terms and conditions mentioned in an appropriate table, which invite the public to enter into contract, such a matter does not relegate to a pure and simple private law dispute, without the insignia of any public element whatsoever. Where an unfair and untenable, or an irrational clause in a contract, is also unjust, the same is amenable to judicial review. The Constitution provides for achieving social and economic justice. Article 14 of the Constitution guarantees to all persons, equality before the law and equal protection of the law. Thus, it is necessary to strike down an unfair and unreasonable contract, or an unfair or unreasonable clause in a contract, that has been entered into by parties who do not enjoy equal bargaining power, and are hence hit by Section 23 of the Contract Act, and where such a condition or provision becomes unconscionable, unfair, unreasonable and further, is against public policy. Where inequality of bargaining power is the result of great disparity between the economic strengths of the contracting parties, the aforesaid principle would automatically apply for the reason that, freedom of contract must be founded on the basis of equality of bargaining power between such contracting parties, and even though ad idem is assumed, applicability of standard form of contract is the rule. Consent or consensus ad idem as regards the weaker party may therefore, be entirely absent. Thus, the existence of equal bargaining power between parties, becomes largely an illusion. The State itself, or a state instrumentality cannot impose unconstitutional conditions in statutory rules/regulations vis-a-vis its employees, in order to terminate the services of its permanent employees in accordance with such terms and conditions." 31. In the case of Central Inland Water Transport Corporation v. Brojo Nath Ganguly, reported in (1986) 3 SCC 156 , the Apex Court has held in paragraph 30 as follows:- "89. In the case of Central Inland Water Transport Corporation v. Brojo Nath Ganguly, reported in (1986) 3 SCC 156 , the Apex Court has held in paragraph 30 as follows:- "89. The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualise the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction..." 32. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction..." 32. The fact that the petitioner has a statutory right to receive her pension is clearly spelt out in Assam Services (Pension) Rules, 1969, which has been made under the proviso to Article 309 of the Constitution of India. The said pension Rules having given statutory protection to the petitioner to receive pension as per her entitlement, the letter dated 03.07.2013 written by the petitioner wherein she has prayed for release of her pension by counting her service w.e.f. 01.10.1987 does not bar her from claiming her rightful claim for counting her service from her date of joining, i.e., 20.01.1975. 33. Though the judgments referred to above, i.e., Balmer Lawrie & Co. Ltd (supra) and Central Inland Water Transport Corporation (supra) basically deals with the bargaining power of the Government in matters of contract, the ratio of the said cases with regard to the principle to be followed to secure social and economic justice, which conforms to Article 14 of the Constitution of India can also be applied to the present case. 34. In the present case, it is discernible that the State respondents have exploited the distressed situation and the financial weakness of the petitioner to deny her, her legitimate dues. The State respondents, as a model employer, is not expected to take advantage of their retired employees in the manner it has been done, as it is not reasonable. The release of the petitioner's pension by counting her service only from 01.10.1987 instead of 20.01.1975 is not fair and the State respondents have not shown any regard or conscience, to do what is right as per the Assam Services (Pension) Rules, 1969. The letter dated 03.07.2013 written by the petitioner, by taking advantage of the distressed situation of the petitioner cannot be enforced by the respondents to bar the claim of the petitioner to get her legitimate dues. 35. The above events and facts shows that if the petitioner had been given her pension as per the Assam Services (Pension) Rules, 1969, there would have been no need for the petitioner to write the letter dated 06.01.2009 and she would not have lost out on her pension dues. 36. 35. The above events and facts shows that if the petitioner had been given her pension as per the Assam Services (Pension) Rules, 1969, there would have been no need for the petitioner to write the letter dated 06.01.2009 and she would not have lost out on her pension dues. 36. In view of the reasons stated above, the respondents are directed to immediately release the petitioner's pension, counting the whole period of her service w.e.f. her date of joining, i.e. 20.01.1975 till her date of retirement, i.e., 30.06.2007. The process for payment of the entire pension and payment should be done by the respondents within a period of 2 (two) months from the date of receipt of a certified copy of this order. 37. Writ petition stands allowed.