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2022 DIGILAW 1045 (GUJ)

Patel Bhikhabhai Chaturbhai v. Sanchalakshri

2022-09-19

A.Y.KOGJE

body2022
JUDGMENT : 1. This petition under Article 227 of the Constitution of India is filed by the petitioner against the impugned judgment and order dated 26.12.2016 passed in Appeal/Application No.256 of 2014 (Old Application No.35 of 2012) and Execution Application No.61 of 2014 (Old Execution No.2 of 2012) and has prayed for allowing the prayers made in those application/appeal. The case of the petitioner in nutshell is that initially the petitioner was working as Assistant Teacher with Vahanvati High School had applied for voluntary retirement under the scheme however, he had withdrawn his application for voluntary retirement despite the school authority proceeded to retire the petitioner voluntarily. 1.1 This order was subject matter of challenge in Application No.29 of 2001, which came to be allowed by treating voluntary retirement application of the petitioner as withdrawn and therefore, the petitioner was held entitled to the salary on the basis of Assistant Teacher as if the petitioner has not retired at all. 2. From the record, it appears that the petitioner has thereafter, retired on 31.10.2006. The facts reveal that the order of the Tribunal was subject matter of challenge by the school authorities in Special Civil Application No.14676 of 2003 however, taking cognizance of subsequent development in the form of retirement of the petitioner on 31.10.2006, the Court held that the matter become infructuous. 3. It is argued on behalf of the petitioner that after the order of this Court, declaring the petition of the school authorities as infructuous, the order of Education Department had revived and therefore, the petitioner was entitled to all the benefits under that order. It is submitted that however, upon the retirement, when the petitioner had approached the school authority as well as Education Department time and again, pension papers of the petitioner were not prepared nor the petitioner was being pension in accordance with law. 3.1. It is submitted that all the attempts of the petitioner to receive his pension and retirement benefits had gone in vain and petitioner was made to run from pillar to post and ultimately, the petitioner was constrained to sign few documents on the basis of which pension proposal of the petitioner was duly considered. 3.1. It is submitted that all the attempts of the petitioner to receive his pension and retirement benefits had gone in vain and petitioner was made to run from pillar to post and ultimately, the petitioner was constrained to sign few documents on the basis of which pension proposal of the petitioner was duly considered. It is submitted that the petitioner only later on realized that the documents which he had signed were in fact undertakings for giving up his rights to receive the salary for the period during which had not worked on account of pending litigation and the grant of first higher graded scale was postponed by 28 months. It is submitted that this was never the wish of the petitioner, but as the petitioner was informed that only if he signed, then only his pension papers will be cleared and that under duress the petitioner had signed. It is therefore, prayed that the petitioner was once again constrained to file an application before the Tribunal to overcome the monetary loss that the petitioner had suffered on account of so called undertaking given by him. 4. As against this, learned advocate appearing for the school authority as well as State Government submitted that the undertaking given by the petitioner is unequivocal and in fact this undertaking was given by the petitioner with clear understanding that his pension case is to be considered accordingly. There was no force or coercion in getting the signature on the so-called undertaking and the petitioner has now changed his stand after voluntarily signing these undertakings. It is submitted that the challenge before this Court was given up only on the understanding given to the authority that the petitioner would give such an undertaking. 4.1 Learned advocate submitted that copy of the undertaking though petitioner was very much in possession was not produced before the Tribunal nor it was produced before this Court and therefore, the school authority alongwith their affidavit had to produce the undertakings to contend that the action on the part of the school authority as well as State Government in granting the pension by taking into consideration the undertaking. 4.2. 4.2. Learned advocate has also submitted that the petitioner has argued that the signature was taken under duress, however, the petitioner has not examined any witness before the Tribunal in this regard and therefore, the Tribunal has not accepted the case of the petitioner that the undertaking was given under duress. 5. The Court has heard learned advocates for the parties and perused the documents placed on record. The petitioner was appointed as Assistant Teacher since 01.11.1982 with the respondent-school. The petitioner continued to discharge his service as such, but the whole problem arose when the petitioner made an application for voluntary retirement under the scheme and prayed for giving an effect from 31.05.2000. Thereafter, by another communication, he had requested to give effect to the voluntary retirement application w.e.f. 31.10.2000. From the record, it appears that same legal points are included in the application of the petitioner and the new appeal/application No.256/2014 submitted by him, hence common judgment is passed in both the cases. Respondent no.4, Director of the Pension and Provident Fund, has submitted the reply vide Exh-6. In the reply submitted vide Exh-6, he has stated that the petitioner retired on 31.07.2006 and his pension papers were received by him on 12.05.2011. However, the said papers were incomplete, hence his pension papers were returned with objection for compliance. After fulfilling the compliance of the objection, the school submitted the papers on 12.10.2011. The amount of Rs.23,966/- paid as salary of five months i.e from 01.01.2003 to 04.05.2003 and the amount of Rs.62,250/- which was paid extra, considering the date for 2nd Higher Pay Scale as 10.11.2005 instead of 10.07.2003, thus total amount of Rs.86,216/- for which the petitioner has submitted undertaking on 01.10.2011 for recovery of the same. The same was included in the pension case and as per the undertaking, amount of Rs.86,216/- was deducted from the gratuity. On the basis of this fact, the petitioner is not entitled to receive the amount of Rs.86,216/-. The undertaking letters given by the petitioner have been produced by the respondent no.4 at page no.57 and 58. Upon considering the undertaking at page no.57, pursuant to the consent given by the petitioner to the same, the petitioner has stated that, "the service of the petitioner from 01.10.2001 to 04.05.2003 is considered as without pay and the salary for this period has not been paid to him. Upon considering the undertaking at page no.57, pursuant to the consent given by the petitioner to the same, the petitioner has stated that, "the service of the petitioner from 01.10.2001 to 04.05.2003 is considered as without pay and the salary for this period has not been paid to him. Therefore, as the said without pay period, which is approximately 28 months, is considered as leave without pay, the second higher pay scale is delayed and as the same is actually admissible from 10.11.2005, the difference amount Rs.23,966/- of the salary received during this period for 28 months is to be recovered. The petitioner has given written assurance and undertaking vide this letter to deduct the said amount from his pension gratuity amount to be paid to him through department and the particulars therein are true and correct. On the basis of this undertaking, the Pension Department has deducted Rs.86,216/- form the gratuity of the petitioner. 6. Further, the petitioner has given second undertaking at page no.58, both of these undertakings are made before the principal, the president and the secretary, the same has been countersigned by the District Education Officer. Thus, after giving undertakings, an amount of Rs.86,216 has been deducted from his gratuity. The petitioner has also admitted in the second undertaking that, " If any amount of the salary etc. which is to be paid to him is increased, decreased or given and if this amount is recoverable from him, the petitioner written assurance and undertaking vide this letter that, all such recoverable amounts shall be recovered from my pension amount due to be paid to me at the time of retirement. Thus, the petitioner has also given second undertaking. In view of both the undertakings, the Pension Department has sanctioned his final pension after deducting the difference amount of Rs.86,216 from the gratuity of the petitioner. The pension order is produced by the respondent at page No.59. In that manner from 15.11.2011, the final pension of Rs.12,295/- was granted to the petitioner and after deducting the pension conversion amount of Rs.4,918/-, the pension sanctioned to the petitioner is Rs.7,377/- and this pension has been received by him. The pension order is produced by the respondent at page No.59. In that manner from 15.11.2011, the final pension of Rs.12,295/- was granted to the petitioner and after deducting the pension conversion amount of Rs.4,918/-, the pension sanctioned to the petitioner is Rs.7,377/- and this pension has been received by him. In such circumstances, as per the undertaking of the petitioner at page number 57, he has agreed to consider 28 months, from 01.01.2001 to 04.05.2003 during which he has not been paid salary as leave without pay and considering such undertaking by him, he has been paid the final pension, the gratuity and the leave encashment. The petitioner himself has given consent to consider leave without pay to the time for which he has not received salary thereafter, the Pension Department has approved final pension. 7. The Court has perused the undertaking given by the petitioner which was the part of the pension papers. Both these documents placed on record in form of affidavit by the respondent-school are unequivocal in term and there is no dispute to the signature. Though before this Court, the argument is made regarding signature made under duress or coercion, perusal of the impugned order does not indicate as to any evidence in support of such contention was led by the petitioner and therefore, the Tribunal has rightly accepted the case of the school authority and the Department with regards to the undertaking given by the petitioner. Moreover, it would be pertinent to observe that the petitioner has already been paid the provisional pension which is equivalent to 100% pension and the petitioner is receiving so after the award of the Tribunal from the date of his retirement. It is pertinent to observe that the Tribunal’s decision in the prevision application No.29 of 2001 was 17.04.2003 which was the subject matter of challenge in Special Civil Application No.14676 of 2003 and this Court by an order dated 08.03.2010, disposed of the petition by holding as under:- “4. From the record is borne out that the Respondent No.1 was continued in the service from 31.05.2000 to 09.09.2000 and thereafter till the resignation is accepted. The Respondent No.1 has withdrawn his resignation by letter dated 09.09.2000 and the tribunal land also directed the present petitioner to accept the application for the withdrawal of resignation of the petitioner (present respondent no.1). The Respondent No.1 has withdrawn his resignation by letter dated 09.09.2000 and the tribunal land also directed the present petitioner to accept the application for the withdrawal of resignation of the petitioner (present respondent no.1). Moreover, the respondent no.1 has retired on 31.10.2006. In that view of the matter, this matter became infructuous and no further relief can be granted in favour of the petitioner. Hence this petition is disposed of accordingly. Interim relief granted earlier, stands vacated. Rule is discharged with no order as to costs. 8. Thereafter, the petitioner has given the so-called undertaking in August-2011 and another on 01.10.2011. After receiving the retirement benefits and pension pursuant to such undertaking, the petitioner has taken a U turn and has thereafter, preferred appeal and application before the Tribunal in the year 2012 and 2014 respectively. 9. In that view of the matter, the Court does not deem fit for any interference. The petitioner is therefore, hereby dismissed. Rule is discharged. No order as to costs.