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2016 DIGILAW 82 (GUJ)

Muliben Chhaganbhai Parmar v. Secretary

2016-01-12

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. This petition is listed at serial No. 22 in today’s cause list for Final Hearing. When the matter is called out and taken up for final hearing, learned advocate for the petitioner is not present. Though the petition is pending since 2006, no one has cared to attend the final hearing. Therefore, the Court has considered it appropriate to decide the petition after taking into account the facts and circumstances involved in the matter which emerge from the material on record. 2. In this petition, the petitioner has prayed, inter alia, that:- "13(AA) Be pleased to issue a writ of mandamus or any other appropriate writ, order or directions or a writ of certiorari to quashing and setting aside the impugned order passed by the Respondent No. 1 dated 17.12.2005, and be further order that the respondents to pay salary, gratuity and pensionary benefits of the applicants which is annexed at Annexure-D to this petition forthwith. (B) to issue a writ of mandamus or any other appropriate writ, order or directions or a writ of certiorari to the Respondents, to pay pensionary benefits of the petitioner which is annexed at Annexure - D to this petition;" 3. So far as factual background involved in present case is concerned, it has emerged from the record that the petitioner claimed that she worked with the respondent from 1962 to 1984 and that because of some injury in her eyes in 1984, she lost her eye-sight and could not continue in service. Consequently, the petitioner was relieved from the service. The petitioner challenged the action of the respondent of relieving her from service before the learned Labour Court. The dispute raised by the petitioner was registered as Reference (LCS) No. 379 of 1989. The learned Labour Court adjudicated the said reference and vide award dated 5.1.1993 directed the respondent to pay salary to the petitioner for the period from January-1985 to December-1987. Thereafter, present petitioner preferred Special Civil Application No. 7508 of 2002 claiming pensionary benefits. The said petition was decided by the Court vide order dated 23.7.2002. Subsequently, the petitioner filed present petition and prayed for above-quoted relief. 4. From the material on record, it appears that the respondent did not challenge the award dated 5.1.1993 passed by learned Labour Court in Reference (LCS) No. 379 of 1989. The said petition was decided by the Court vide order dated 23.7.2002. Subsequently, the petitioner filed present petition and prayed for above-quoted relief. 4. From the material on record, it appears that the respondent did not challenge the award dated 5.1.1993 passed by learned Labour Court in Reference (LCS) No. 379 of 1989. Therefore, qua the respondent authority, the award dated 5.1.1993 attained finality. It further appears that even in the petition being Special Civil Application No. 7508 of 2002 (of which reference is made in present petition), the petitioner had not challenged the award dated 5.1.1993 passed by learned Labour Court in the above-mentioned reference. Thereafter, when the petitioner filed present petition in 2006, the petitioner did not challenge the said award dated 5.1.1993 passed by the learned Labour Court in the above-mentioned reference. Even when the petitioner carried out amendment in present petition in pursuance of the order dated 11.10.2010, the petitioner did not raise any dispute with regard to the award dated 5.1.1993 passed by the learned Labour Court. Thus, the said award has attained finality. 5. When the said award dated 5.1.1993 is examined, it emerges that in the said proceedings, present petitioner alleged that the service was terminated illegally w.e.f. 21.12.1984. The respondent had filed written statement in the said reference proceedings and the respondent authority claimed that the petitioner lost eye-sight and therefore, she was relieved from service. During the proceedings before the learned Labour Court, the petitioner turned completely blind and she had no vision and therefore, any question of reinstatement did not arise. Besides this, the fact that the petitioner was relieved from service because she lost eyesight was not disputed or denied. Actually, from the averments in the petition, it appears that the petitioner herself claimed that she was relieved from service because she lost eye-sight. Moreover, a certificate dated 31.12.1987 issued by Civil Surgeon, Limdi, certifying that the petitioner had turned completely blind and lost eye-sight in both eyes, was placed on record before the learned Labour Court. 6. Having considered the said aspects, learned Labour Court passed the order dated 5.1.1993 directing the respondent to pay salary to the respondent from January 1985 to December-1987. As mentioned earlier, the said order has attained finality. Further, after span of more than 20 years, this Court is not inclined to interfere with the said order. 6. Having considered the said aspects, learned Labour Court passed the order dated 5.1.1993 directing the respondent to pay salary to the respondent from January 1985 to December-1987. As mentioned earlier, the said order has attained finality. Further, after span of more than 20 years, this Court is not inclined to interfere with the said order. Even otherwise, any ground or justification to interfere with the said award - which has attained finality on passage of 20 years and also in view of the fact that the award is never challenged - is not made out. Considering the fact that undisputedly the petitioner has lost eye-sight, directions for reinstatement cannot be granted. For the same reason, any direction for backwages also cannot be granted. However, in view of the fact that any challenge against the award is not made out by the respondent, there is no need or justification to interfere with the direction contained in the award dated 5.1.1993. Further, as mentioned earlier, in present petition also, the petitioner has not challenged the award dated 5.1.1993. 7. So far as reference to the earlier petition i.e. Special Civil Application No. 7508 of 2002 is concerned, it is noticed that the Court [Coram: Hon'ble Mr. Justice H.K. Rathod (as His Lordship then was)] disposed of the said Special Civil Application No. 7508 of 2002 vide order dated 23.7.2003. In the said order dated 23.7.2003, this Court observed that:- "Therefore, considering these peculiar facts and circumstances of the case, it is open for the petitioner to make detailed representation with a claim of pension to the respondent No. 1 Secretary, Finance Department within there weeks from the date of receipt of copy of this order. In the said order dated 23.7.2003, this Court observed that:- "Therefore, considering these peculiar facts and circumstances of the case, it is open for the petitioner to make detailed representation with a claim of pension to the respondent No. 1 Secretary, Finance Department within there weeks from the date of receipt of copy of this order. As and when such representation made by the petitioner is received by the respondent No. 1 Secretary, Finance Department, it is directed to the respondent No. 1, Secretary, Finance Department to consider the same and call for necessary record from the office of respondent No. 2 and 3 about the actual working days of the petitioner for each year and weekly off and festival holidays and leave available to the petitioner as per the GR dated 17.10.88 for the total period of service of the petitioner from 1962 to 1984 and thereafter examine the case of the petitioner as to whether the petitioner is completing 240 days continuous service or not in each year as per section 25B of the ID Act, 1947 and to pass appropriate order in accordance with law within, as per GR dated 17.10.88 and to decide as to whether the petitioner is entitled for such pensionary benefits or not for the service rendered by the petitioner from the year 1962 to 1984. Such orders are required to be passed by the said authority within the period of three months from the date of receipt of copy of the representation from the petitioner and to communicate the same to the petitioner immediately thereafter. In case if the respondent No. 1 come to the conclusion that the petitioner is entitled for the relief of pension, then, to make necessary payments to the petitioner from the date of her entitlement for such benefits without any further delay." 7.1 Thus, the Court allowed the petitioner to make representation with regard to her claim for pension and the respondent was directed to consider such representation and pass appropriate order. 8. By virtue of the amendment in present petition, the petitioner has prayed that the order dated 17.12.2005 may be set aside. The respondents have filed affidavit wherein it is stated, inter alia, that:- "3. 8. By virtue of the amendment in present petition, the petitioner has prayed that the order dated 17.12.2005 may be set aside. The respondents have filed affidavit wherein it is stated, inter alia, that:- "3. At the outset, it is submitted that the present petition is required to be dismissed in view of the fact that no right much less fundamental right of the petitioner has been infringed. Therefore, the present petition seeking protection of so-called fundamental rights may not be entertained by this Hon'ble Court any further, and the present petition may be dismissed. 4. With reference to paras 1 & 2, I offer no remarks. 5. With reference to para 3.1, I say that the averments made in Special Civil Application No. 7508/2002 para 2 is not true stating that the petitioner was working from 1962 to 1984 in this Department. In fact the real fact is that the petitioner was working from October 1975 upto January 1984. Thus, the petitioner has misguided the Hon'ble Court. I further say and submit that in the year 1984 because of the damage in her eyes she stopped the work. She was not terminated. However, the orders made by the Hon'ble Labour Court under reference (LCS) No. 379/1989 is fully complied by the department. 6. With reference to para 4, I say and submit that the petitioner has claimed that she was employed with effect from 1962, is not correct as verified from the attendance sheet, she was working in this department since October, 1975 to January 1984..... From the working days statement it is clear that the petitioner has not completed 240 days in 10 years. She has only completed 240 days in 7 years only. Some clarification of Government Resolution dated 17-10-1988 has been made in Government Resolution dated 30-05-1989..... In para 6 on page 2 of the G.R. dated 30-05-1989, it has been made clear that daily wager who was completed 10 years of service is only entitled to get pensionary benefits. Government Resolution dated 17-10-1988 is made effective from 01-10-1988, stated in sub para 3 of para 4 of the said G.R. The petitioner has stopped the work from January 1984 & has not completed 10 years of service therefore not entitled for pensionary benefits. Hence it is clear that petitioner's prayer for granting pensionary benefit should be rejected. Government Resolution dated 17-10-1988 is made effective from 01-10-1988, stated in sub para 3 of para 4 of the said G.R. The petitioner has stopped the work from January 1984 & has not completed 10 years of service therefore not entitled for pensionary benefits. Hence it is clear that petitioner's prayer for granting pensionary benefit should be rejected. In Government circular dated 13-02-1998, para 4 also it has been stated that the daily wager who has not completed 10 years of service, is not entitled for pensionary benefits....." 9. Thus, from the said affidavit it emerges that before the date on which the petitioner's service was discontinued on account of physical disability, she had not completed service of 10 years and therefore, she was not entitled for the benefit flowing from the G.R. dated 17.10.1988. 10. Any material to controvert the said assertion/affidavit of the respondent is not placed on record by the petitioner. The respondents have asserted in their affidavit that the petitioner worked on ad-hoc/casual and daily wage basis from October 1975 to January 1984 and during the said period, she had worked for 240 days in only 7 years. It is also claimed that from 1975 to 1984, even otherwise, she had not completed service for 10 years and considering the number of days for which she worked, she had not worked for 240 days in more than 7 years and that therefore, she was not and she is not entitled to benefit of the said GR. The respondents have claimed that after taking into account the said aspect, the competent authority passed the order dated 7.12.2005. The respondents have claimed that after the Court passed the order in Special Civil Application No. 7508 of 2002, appropriate order in light of the facts of the case is passed by the competent authority on 17.12.2005 and that therefore, the allegation that the direction is not complied is incorrect. Alongwith the said affidavit, the respondents have placed on record the details of total number of days on which the petitioner had worked for the period from October 1975 to January 1984. Any material to controvert the said details is not placed on record though the petitioner has filed rejoinder affidavit. 11. At this stage, Mr. Alongwith the said affidavit, the respondents have placed on record the details of total number of days on which the petitioner had worked for the period from October 1975 to January 1984. Any material to controvert the said details is not placed on record though the petitioner has filed rejoinder affidavit. 11. At this stage, Mr. Shukla, learned advocate for the petitioner has appeared and he submitted that the controlling authority has passed an order directing the respondents to pay gratuity for 22 years. The petitioner has maintained convenient silence as to whether the said order was challenged by the respondent or not and/or whether the said order is set aside by the appellate authority or this Court. 12. Except the facts and details mentioned by the respondents in the affidavit, any material contrary to the facts and details mentioned in the affidavit dated 14.7.2006, is not available on record. Therefore, the said uncontroverted details have to be taken as true in absence of any contrary evidence. According to the details mentioned in the affidavit, the claim of the petitioner for pension has been considered by the competent authority in light of applicable rules and facts of the case of the petitioner and thereafter, vide order dated 17.12.2005, the said claim is rejected. The said decision does not appear to be incorrect or arbitrary or contrary to GR dated 17.10.1988. The learned advocate for the petitioner could not point out any provision from the GR dated 17.10.1988 to establish that in the facts of the case, the said GR is applicable to the petitioner and learned advocate for the petitioner could not point out any provision from the said GR to establish that the right to receive pension is conferred on employees like the petitioner by virtue of the said GR dated 17.10.1988. Therefore, present petition fails and deserves to be rejected and is accordingly rejected. Rule is discharged.