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2018 DIGILAW 32 (MAN)

State of Manipur v. Ibemsana

2018-06-20

N.KOTISWAR SINGH, RAMALINGAM SUDHAKAR

body2018
JUDGMENT N. Kotiswar Singh, J. - Heard Mr. H. Devendra, learned Govt. Advocate for the State appellants and heard also Mr. Serto T. Kom, learned counsel for the respondent No. 1 (writ petitioner) and Mr. S. Samarjeet, learned CGC for the respondent No.2. 2. The present appeal has been preferred against the judgment and order dated 09.04.2012 passed in WP(C) No. 1069 of 2005 by which the Ld. Single Judge directed the State appellants/respondents to grant family pension to the writ petitioner, with effect from the date of the death of the petitioner's husband on 27.08.1990, primarily, on the ground that the petitioner's husband was not a permanent/confirmed work charged employee. 3. To deal with this appeal, only the necessary and relevant facts may be mentioned. The petitioner's husband, Md. Iboyaima was appointed as a work charged khalasi against the existing vacancies vide office order No. 69 dated 31.05.83 issued by the Chief Engineer, Irrigation and Flood Control Department, Government of Manipur. He died on 27.08.1990 after serving for 7 years 2months. Accordingly, his service was terminated with effect from 27.08.1990. The petitioner made the claim for grant of family pension under the"Terminal Benefits for Work Charged Staff of PWD/IFCD/PHE/MI/Electricity, Manipur Rules 1978". Having not granted family pension, the petitioner approached the Gauhati High Court, Imphal Bench, by filing a writ petition, being WP(C) No.1069 of 2005 which was allowed by the learned Single Judge vide order dated 09.04.2012 directing the State Appellants to grant family pension to the petitioner with effect from the date of the death of her husband i.e. on 27.08.1990. 4. The State Government appellants have assailed the aforesaid direction of the learned Single Judge , primarily on the ground that it is only permanent/confirmed work charged employees, who are entitled to family pension under the Terminal Benefits of Work Charged staff of PWD/IFCD/PHED/MI/Electricity, Manipur Rules 1978. It is the case of the State appellants that the petitioner's husband was never a permanent work charged employee and hence, not entitled to family pension under the aforesaid Rules. Further, it was contended on the behalf of the State appellants that Rule 6(B) of the aforesaid Terminal Benefits Rules, which was referred to by the learned Single judge for grant of Family Pension is not applicable to the petitioner. Further, it was contended on the behalf of the State appellants that Rule 6(B) of the aforesaid Terminal Benefits Rules, which was referred to by the learned Single judge for grant of Family Pension is not applicable to the petitioner. It was introduced on 06.06.1991 by way of amendment of the aforesaid Terminal Benefits Rules and it is applicable only to the family of the work charged employees, who died prior to 21.06.1990 and whose family members are living on the date of issue of the order dated 06.06.1991 and since the petitioner's husband expired on 27.08.1990, the case of the petitioner is not covered by Rule 6(B). 5. On the other hand, it is the case of the writ petitioner (respondent No.1 herein) that the petitioner is entitled to Family Pension on the ground that her husband had completed 10 (ten) years of service counting together the periods of service on Muster Roll and Work Charged basis and on Muster Roll basis and non confirmation of his service in work charged establishment could not be attributed to the petitioner's husband but to the State appellants who were responsible for the same. 6. The other alternative plea taken by the writ petitioner/respondent No.1 is that, in any event, the petitioner is entitled to claim family pension in terms of Rule 6(A) which was added to the Terminal Benefit Rules vide order dated 21.06.1990 which envisages family pension to the family of the Work Charged Employee who died while in service as calculated under Manipur Civil Service (Pension) Rules, 1977 as amended from time to time. Mr. Serto T. Kom submits that in view of the provision under Rule 6(A), a person would be entitled to the family pension which is to be calculated as provided under Rule 54 of CCS Pension Rules, which has been adopted by the State Government. 7. Rule 54 of the CCS Pension Rules deals with family pension which provides that provisions of this rule shall apply to Government servant entering service in a pensionable establishment on or after 01.01.1964 and sub-rule (2)(i) of Rule 54 further provides that subject to the provision of sub-rule 13-B and without prejudice to the provisions contained in sub-rule 3, where a government servant dies after completion of one year of continues service, the family of the deceased shall be entitled to family pension. It may be mentioned that sub-rule 13-B has been omitted since the year 2012. Sub-rule 3 provides that where the Government servant is not governed by Workmen's Compensation Act, 1923, who died while in service after having rendered more than 7 years continuous service, the rate of family pension payable to the family shall be equaled to the 50 percent of last pay withdrawn and the amount admissible shall be payable from the date following the death of the government servant for a period of 10 years etc. Mr. Serto T Kom, states that Rule 54 nowhere mentions that a person has to be confirmed or permanent to be entitled to family pension and since the petitioner's husband had completed more than one year of continuous service as provided under sub-rule 2 (i) of Rule 54 of the CCS Pension Rules, the petitioner is entitled to family pension. 8. We have heard the learned counsel for the parties and perused the materials on record including writ petition filed before this Court. The claim of the petitioner as evident from the pleadings in the writ petition, is based on Rule 6(A) added to the aforesaid Terminal Benefits for Work Charged Staff of PWD/IFCD/PHE/MI/Electricity, Manipur Rules 1978 vide notification dated 21.6.1990 which provides that family pension as calculated under the Manipur Civil Service (Pension) Rules, 1977 as amended from time to time. Rule 6(A) reads as follows:- " ORDERS BY THE GOVERNOR : MANIPUR Imphal, the 21st June, 1990 No.6/3/70-W(Pt.) : The Governor of Manipur is pleased to make the following rules to further amend the Terminal Benefit for Work charged staff of PWD, PHED, MI Electricity Rules, 1978. i) These rules may be called the Terminal Benefits for Work Charged staff of PWD, PHED, MI Electricity Rules, 1978. ii) These orders shall come into force with immediate effect. iii) The following shall be added as Rule 6(A) below Rule (iii) (B):- " Rule 6(A)-Family Pension as calculated under the Manipur Civil Service (Pension) Rules, 1977 as amended from time to time." By orders etc. Sd/- (M.Tuizar) Commissioner(Works) Govt. of Manipur." 9. As can be seen, subsequently, many amendments have been made to the aforesaid Terminal Benefit Rules, 1978. It is true that the aforesaid Terminal Benefit Rules, 1978 when these were originally made were meant for permanent work charged staffs as mentioned in Rule 6 thereof. Sd/- (M.Tuizar) Commissioner(Works) Govt. of Manipur." 9. As can be seen, subsequently, many amendments have been made to the aforesaid Terminal Benefit Rules, 1978. It is true that the aforesaid Terminal Benefit Rules, 1978 when these were originally made were meant for permanent work charged staffs as mentioned in Rule 6 thereof. However, when the aforesaid new Rule 6 (A) was inserted on 21.6.1990, the rule making authorities did not specifically mention that the said newly inserted Rule 6(A) would be applicable to permanent or confirmed work charged staffs only, by keeping silent on the status of the work charged employee covered by the new Rule 6(A). It is the case of the State appellants that even if the newly added Rule 6(A) is silent on the status of the work charged employee, it has to be read as such, in the context of the entire rules and cannot be read in isolation. In that view of the matter, since the Terminal Benefits Rules framed are meant for permanent work charged employees, the newly inserted Rule 6(A) is also meant for permanent work charged employees. Though the contention of the learned counsel for the State seems to be reasonable, plausible and quite attractive, we are not able to accept the said plea for the reasons elaborated hereinafter. 10. It may be noted that the aforesaid Terminal Benefits Rules, 1978 underwent several amendments subsequently after insertion of the aforesaid Rule 6(A) on 21.6.1990. Another Rule 6(B) was added below Rule 6(A) which provides that terminal benefits shall be admissible to the permanent work charged staffs/who retired prior to 18.9.78 and also family pension to the families of work charged employees who died prior to 21.06.1990 but are living on the date of issue of this order. Thus, this newly added Rule 6(B) specifically mentions that it would be applicable to permanent work charged staff. " ORDERS BY THE GOVERNOR : MANIPUR Imphal, the 6th June, 1991 No.6/3/70-W(Pt.) : The Governor of Manipur is pleased to make the amendment in Terminal Benefit for Work Charged staff of PWD, PHED, MI Electricity Rules, 1978. i) These rules may be called the Terminal Benefits for Work Charged staff of PWD, PHED, MI Electricity Rules, 1978. " ORDERS BY THE GOVERNOR : MANIPUR Imphal, the 6th June, 1991 No.6/3/70-W(Pt.) : The Governor of Manipur is pleased to make the amendment in Terminal Benefit for Work Charged staff of PWD, PHED, MI Electricity Rules, 1978. i) These rules may be called the Terminal Benefits for Work Charged staff of PWD, PHED, MI Electricity Rules, 1978. ii) The following shall be added as Rule 6(B) below Rule 6 (A):- " Rule 6(B)-Terminal Benefit shall also admissible to the worked charged staff/employees who retired prior to 18.9.78 and also family pension to the families of work charged employees who died prior to 21.06.1990 but are living on the date of issue of this order." By orders etc. Sd/- (M.Tuizar) Commissioner (Works) Govt. of Manipur" 11. Further changes were made again on 21.5.1993 by which the Rule 6(A) which was inserted on 21.6.1990, was amended by which additional conditions were added. While the earlier provision under the old Rule 6(A) providing for Family Pension as calculated under Manipur Civil Services (Pension) Rules, 1979 as amended from time to time remained, by the said amendment it was subjected to two more conditions viz, i) the benefits shall be available to the family of any worked charged employee who died on or after 21.6.1990 after rendering not less than 1(one) year of service after confirmation and; ii) the amendment will have prospective effect and no arrears shall be paid. The said Rule 6(A) was further amended on 8.9.1994 which provided that payment of family pension shall be effective from 21.5.1993 and no arrears in cash or otherwise for the period from 21.6.1990 to 20.5.1993 shall be paid. Thus, after amendment of the said Rule 6(A) on 21.5.1993, it was specifically provided that it would be applicable to work charged employees after one year of confirmation. Hence after the amendment of Rule 6(A) in 1993, unless a work charged employee has been confirmed and has rendered one year service after confirmation, the terminal benefits will not be available. Thereafter, another amendment to the Rules was made on 22.12.1995 adding further conditions to the entitlement of the terminal benefits. Accordingly, it may be noted that while Rule 6(A) was initially added vide order dated 21.6.1990, there was no such condition of requirement of the employee being permanent or confirmed, which condition was introduced in the subsequent amendments made on 21.5.1993 and 8.9.1994. Accordingly, it may be noted that while Rule 6(A) was initially added vide order dated 21.6.1990, there was no such condition of requirement of the employee being permanent or confirmed, which condition was introduced in the subsequent amendments made on 21.5.1993 and 8.9.1994. Rule 6(B) was also amended on 22.12.1995 making conditions for entitlement of terminal benefit more stringent. Therefore, we endorse the submission made by the writ petitioner/respondent herein that when Rule 6(A) was initially introduced on 21.6.1990, it did not provide for any such conditions, including the condition of requirement of being a permanent or confirmed work charged employee. Hence, this denial of family pension to the petitioner on the ground that the petitioner's husband was not a confirmed employee, cannot be accepted. 12. It may be also stated that the subsequent amendments were effected after the petitioner's husband had died and as such, these amendments, having no retrospective effect, cannot affect the right which had accrued to the petitioner pursuant to the insertion of Rule 6(A) on 21.6.1990 which did not provide for any condition. 13. It may be also mentioned that the rule making authorities though subsequently amended Rule 6(A) as well as Rule 6(B) and also inserted other conditions to make the rules applicable to permanent/confirmed worked charged employees, the Court had taken a liberal view of the aforesaid provisions as dealt in W.A. No.154/1998, W.A. No.156/1998, W.A. No.157/1998, W.A. No.135/1998, W.A. No.155/1998 and W.A. No.102/2000 disposed of by a Division Bench of the Hon'ble Gauhati High Court on 01.10.2001. Thereafter, another Division Bench of the Hon'ble Gauhati High Court had the occasion to interpret the provisions of Rule 6(B) in W.A. No.29 of 2009 which was disposed of on 12.08.2010 by holding that since the expressions"confirmation and permanent" are not found in Rule 6(B) as it was initially added to the Rules, the same cannot be read into as the said Rule 6(B). The Division Court made the observation that there were many work charged employees whose services were confirmed retrospectively and in many cases, the worked charged employees were confirmed after their expiry. Accordingly, the Division Bench held that it cannot be said that the benefits to which the families of the worked charged employees were provided by way of family pension would require confirmation of service and if such confirmation is required, the authorities may do so by passing appropriate order. Accordingly, the Division Bench held that it cannot be said that the benefits to which the families of the worked charged employees were provided by way of family pension would require confirmation of service and if such confirmation is required, the authorities may do so by passing appropriate order. The Division Bench further observed that the confirmation of service or permanence in service by issuance of specific order is always an uncertainty and in normal circumstances, an employee after rendering a particular length of service is entitled to get his service confirmed or permanent. Thus, the Hon'ble Division Bench of the Gauhati High Court interpreted Rule 6(B) by holding that to get the benefit of the newly added Rule 6(B), the work charged employee need not be confirmed or permanent. Taking a cue from the aforesaid decision, we can also say that as the expressions"confirmed" or"permanent" are not used in Rule 6(A) as was added initially, we can not read these words in Rule 6(A) to deny the benefit to the petitioner. 14. It may be observed that the original Terminal Benefits Rules framed in 1978 had undergone many amendments referred to and discussed above. The aforesaid Rules have been framed to give certain benefits to the employees belonging to work charged establishment and not to regular employees. Thus, the aforesaid Rules are meant to be beneficial to the work charged employees. Now it is well settled that while interpreting any beneficial law, if two views are possible, such view as would benefit the employees ought to be preferred. Therefore, in absence of a specific provision under Rule 6(A) that it would apply only to confirmed or permanent work charged employee as introduced on 21.6.1990, on the basis of which the petitioner has claimed the benefit of family pension and in the light of the liberal interpretation given to Rule (B) by the Division Bench of the Hon'ble Gauhati High Court as in the case of W.A. No.29 of 2009, we are also of the view that the newly added Rule 6(A) on 21.6.1990 as it stood, cannot be confined to only the permanent or confirmed employees as contended by the State appellants and can be made applicable to nonpermanent or non-confirmed work charged employees, as in the case of the petitioner's husband. 15. 15. We also have noted that the petitioner's case falls in a category of employees in a particular transitory phase when Terminal Benefits Rules were being amended. The case of the petitioner falls during the period between 21.6.1990 when Rule 6(A) was inserted and 6.6.1991 when another Rule 6(B) was inserted and on 8.9.1994 when Rule 6(A) was amended by making it applicable to permanent work charged employees. Though we also agree with the contention of the State appellants that the case of the petitioner does not fall within Rule (B) which was introduced on 6.6.1991 as the applicability of the Rule 6(B) was in respect of those work charged employees who died prior to 21.6.1990 and as the petitioner's husband died on 27.8.1990, the petitioner's case would be covered by Rule 6(A) which continued to operate and remained unchanged till it was amended on 21.5.1993. As such, we are of the view that the case of the petitioner belongs to a very miniscule category of employees whose case falls during the aforesaid period from 21.6.1990 to 21.5.1993 and as such, it is unlikely that the issue raised in this appeal will be applicable to many other cases. We have also kept in mind that considering the salaries of the work charged employees and since the petitioner 's husband had served only for about 7(seven) years two months and 28 days as worked charged Khalasi, the financial implication would not be very high. Accordingly, we hold that the decision of this Court in this appeal would be confined to this case only and will not be a precedence for other cases. 16. Accordingly, for the reasons discussed, we are not inclined to entertain this writ appeal and the same is dismissed with the direction to the State appellants to grant family pension to the petitioner as directed by the Learned Single Judge by the order dated 9.4.2012 passed in W.P(C) No.1069 of 2005.