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2021 DIGILAW 57 (BOM)

Ramakant Krishna Malik v. State Of Goa

2021-01-11

BHARATI H.DANGRE, M.S.SONAK

body2021
JUDGMENT Bharati H. Dangre, J. - The petitioner, a retired employee of the respondent no.2, Public Works Department, Goa, by invoking the writ jurisdiction of this Court seek following reliefs : "a) Issue a Writ of Mandamus or writ in nature of the Mandamus directing the Respondent No.2 and 3 to release the Pension and other retiral benefits along with interest @14% thereupon due to unjustified delay in making the said payments. b) Issue a Writ of mandamus or in nature of Mandamus directing the Respondent No.2 and 3 to release arrears of salary and other allowances in terms of the Order dated 02/06/2020 treating the period of suspension as period spent on duty and further regularizing the period of unauthorized absence. c) Pending hearing and final disposal of the petition issue an appropriate Order directing the Respondents to release the provisional pension within a week." 2. Shorn of the minute details of the service record of the petitioner, a few dates need a mention. The petitioner was recruited, by an appointment order dated 10/07/1991 in the post of "Helper" by the respondent No.2 and it is his contention that he served the said Department with an unblemished service record barring one adverse action proposed against him, till he retired on attaining an age of superannuation on 30/04/2020. The only blemish in his service record is an order of suspension issued to him on 12/12/2016 on the ground of alleged unauthorised absence from service. The absence has been justified by the petitioner by stating that on account of the matrimonial discord which he faced at his home front, he was mentally disturbed, constraining him to be not attendant on duties. On a representation being made to the Department, by order dated 14/08/2018, the suspension order came to be revoked by exercising the powers conferred by clause (C) of Sub-Rule (5) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules,1965. Pursuant to the said order, he resumed his duties w.e.f. 16/08/2018. The Department itself on 02/06/2020 was pleased to regularize the unauthorized absence of the petitioner and took a decision not to initiate any disciplinary proceedings against him for the period of his absence. Pursuant to the said order, he resumed his duties w.e.f. 16/08/2018. The Department itself on 02/06/2020 was pleased to regularize the unauthorized absence of the petitioner and took a decision not to initiate any disciplinary proceedings against him for the period of his absence. By the very said order issued by the Principal Chief Engineer of the respondent No.2, the period of suspension of the petitioner from 12/12/2016 to 14/08/2018 came to be treated as period spent on duty and it was directed that he shall be paid full pay and allowances for the said period subject to adjustment in respect of subsistence allowance already availed by him during the period of suspension. His period of absence from 03/06/2016 to 11/02/2016 was also regularized as per the leave Rules in force. By passing of the said order, the fraction of the petitioner's service which was interrupted came to be regularized resulting in rendering continuous service from 10/07/1991 till he attended the age of superannuation on 30/04/2020. 3. The grievance raised by the petitioner however pertains to the non-release of his retiral benefits and the aforesaid predicament is not a reason for denial of his retiral benefits. The non-payment is stemmed from his matrimonial strife and though prior to 6 months of his retirement, he had forwarded the necessary papers so as to enable the Department to work out his retiral benefits, in terms of the the CCS Rules (Pension Rules), till the institution of the petition, and to be precise, on 01/12/2020, he was denied the retiral benefits and though more than period of 6 months has expired, no provisional pension is released in his favour. The correspondence placed on record reflect that on 18/03/2020 the pension papers of the petitioner came to be remitted back by the office of Directorate of Accounts, Panaji to his parent Department by seeking certain clarifications, one of which pertained to his period of unauthorised absence. Another objection was in respect of furnishing single photograph in Form No.III and justification was sought from the Department for submitting a single photograph. The first deficiency which was pointed in respect to the period of the absence was cleared by the employer, by passing an order dated 02/06/2020. Another objection was in respect of furnishing single photograph in Form No.III and justification was sought from the Department for submitting a single photograph. The first deficiency which was pointed in respect to the period of the absence was cleared by the employer, by passing an order dated 02/06/2020. As far as submission on the single photograph is concerned the petitioner on 06/08/2020 addressed a justification by stating that there was an existing matrimonial discord between himself and his spouse and she had instituted the proceedings under the Domestic Violence Act against him. By the said communication he also submitted a joint photograph of himself and his wife along with the xerox of election card of his wife, Shashikala. In spite of the said compliance, the petitioner was in receipt of letter dated 14/08/2020 from his employer, Respondent No.2 thereby inviting his attention to the order passed in DV proceedings instituted by his wife whereby the petitioner was directed to pay an amount of Rs.4,000/- per month towards her maintenance from the date of the order, being 25/05/2015. The Department therefore raised an objection that the case is till pending and therefore he was asked to furnish a single photograph. The final judgment copy was directed to be submitted and it was assumed that since the joint photograph has been submitted the issue has been settled. The justification was once again sought by letter dated 13/10/2020, which was responded by the petitioner on 26/10/2020, thereby ensuring compliance of the deficiencies pointed out by submitting 4 copies of the passport size photographs and clarifying that a joint photograph was also submitted. He also clarified that the case between himself and his wife is still pending and has not amicably settled as assumed by the office. He requested to process the pension papers and accordingly submitted the clarification to the Account's Department. 4. The correspondence placed on records by the office of the Accountant General as well as the principal employer of the petitioner reflect the apathetic attitude. The non-release of post retiral benefits of the petitioner inspite of the fact that he has submitted the pension papers prior to 6 months of his retirement on 30/04/2020 and inspite of expiry of period of 8 months from the date of his superannuation he is without any pensionary benefits and this speak of the lackadaisical approach of the Department. The non-release of post retiral benefits of the petitioner inspite of the fact that he has submitted the pension papers prior to 6 months of his retirement on 30/04/2020 and inspite of expiry of period of 8 months from the date of his superannuation he is without any pensionary benefits and this speak of the lackadaisical approach of the Department. On a flimsy ground and without appreciating the fact that it was the petitioner who is entitled for the pensionary benefits for the long service rendered by him to the Department and it being a settled position of law that right to pension is covered under a right to property protected under Article 300A of Constitution and is not a bounty. Its deprivation, even in part cannot be accepted, except an authority in law. The petitioner could not have been denuded of his retiral benefits, on account of pending execution in a DV proceedings. In the peculiar circumstances of this case, requirement of submitting a joint photograph shall be dispensed with. 5. Conscious of this position in law, the learned Advocate General Mr. D.J. Pangam during the course of hearing of the matter fairly state that if the petitioner is ready to submit an indemnity bond / an undertaking assuring the authorities that he undertake the consequences of the outcome of the execution proceedings in the domestic violence case and he will indemnify the Government if any orders are passed in such proceedings we see no reasons to withhold the benefits. The learned Counsel for the petitioner express the readiness of the petitioner to submit such an undertaking and according to him the DV proceedings are already over but the execution proceedings are ongoing. He assure the Court that the petitioner will submit such an undertaking to the respondent No.2 within a period of two weeks. On receipt of such an undertaking, we see no legal impediment in releasing the retiral benefits in favour of Correction carried out as per the petitioner since there is none. The respondent shall then release the retiral benefits in favour of the petitioner as early as possible and in any case not later than Six weeks. On receipt of such an undertaking, we see no legal impediment in releasing the retiral benefits in favour of Correction carried out as per the petitioner since there is none. The respondent shall then release the retiral benefits in favour of the petitioner as early as possible and in any case not later than Six weeks. Since we are directing the State Government to release the pensionary benefits in favour of the petitioner within 8 weeks from today, we do not think fit to direct release of any provisional pension in favour of the petitioner. 6. With the aforesaid direction the Writ Petition stands allowed. Easy on costs.