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2024 DIGILAW 1749 (GUJ)

Manjulaben K Meswaniya v. State Of Gujarat

2024-08-21

VAIBHAVI D.NANAVATI

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ORDER : Vaibhavi D. Nanavati, J. 1. The petitioner herein is aggrieved by the inaction on the part of the respondents by not regularizing family pension and not paying the legitimate amount of gratuity to which, the petitioner’s husband was legally entitled. Being aggrieved by the aforesaid inaction, the petitioner herein is constrained to approach this Court under Article 226 of the Constitution of India and has prayed for the following reliefs: “(A) YOUR LORDSHIPS be pleased to issue a writ of mandamus, and/ or certiorari or other appropriate writ, order or direction, declaring the impugned inaction on the part of respondents thereby, not regularizing the provisional pension of the deceased retired employee w.e.f December 2004 by counting 30 years of qualifying services and thereby not regularizing the family pension of the petitioner widow and not paying the full and complete retirement dues of her late husband as illegal, unjust, arbitrary, malafide, without application of mind, and violative of Article 14 and 16 of India and further be pleased to direct respondents to regularize the pension of the petitioner and pay all the unpaid retiral dues, which her late husband was entitled for and also pay the arrears of difference of pension/family pension to the petitioner with 12% interest and further direct the respondent no.1 to recover the amount of interest & cost from the personal pay of the erring officer. (B) YOUR LORDSHIPS be pleased to declare that without any justification that respondents have illegally withheld the regularization of pension of the deceased retired pensioner since December 2004 and thereafter, even family pension of the petitioner widow till date is not regularized and also not paid the retiral dues which her late husband for entitled for. (C) YOUR LORDSHIPS be pleased to declare that due to the negligence on part of the concerned authorities, the issue regarding regularization suspension period from 5.11.1984 to 29.12.1995, i.e. 4069 days, was pending before the respondents and was tossed by one authority to another authority, which resulted into non- regularization of pension of the retired pensioner [from 2004] and later the even family pension of the widow petitioner from the date of death of her husband [from December 2010]. (D) Pending admission and final disposal of this petition, YOUR LORDSHIPS be pleased to direct the respondents to take immediate steps to regularize the family pension of the petitioner widow forthwith and pay all the unpaid retiral dues, which her late husband was entitled for and also pay the arrears of difference of pension/family pension from October 2004 to till date. (E) YOUR LORDSHIPS be pleased to grant such other and further reliefs as deemed fit in the interest of justice.” 2. Heard Ms. Vilas A. Purani, learned advocate appearing for the petitioner, Ms. Pooja K. Ashar, learned AGP appearing for the respondent Nos.1, 2 and 4, Ms. Khyati P. Hathi, learned advocate appearing for the respondent No.3 and Mr. Rajesh M. Chauhan, learned advocate for Mr. H.S. Munshaw, learned advocate appearing for the respondent No.5. 3. Briefly stated that the petitioner’s husband was appointed as Talati-cum-Mantri with effect from 19.06.1970 in the office of the respondent No.4 on ad-hoc basis and his services came to be regularized with effect from 23.11.1974. 3.1 Criminal Case came to be filed against the petitioner’s husband with respect to temporary misappropriation of Rs.3497.48/- for the period between 02.11.1983 to 05.04.1984, when he was posted at village : Bokhira, District : Porbandar. Upon such criminal case having been filed, the petitioner’s husband was suspended from his duties with effect from 05.11.1984. The petitioner’s husband was held not guilty and came to be acquitted from all the charges by order dated 30.09.1992 passed by the learned Chief Judicial Magistrate (FC), Porbandar. Upon acquittal by order dated 30.09.1992, the suspension came to be revoked and the petitioner’s husband was reinstated in services vide order dated 27.12.1995 by the Deputy District Development Officer, Junagadh, duly produced at Annexure – B. 3.2 During the course of suspension, a parallel departmental inquiry was also conducted against the petitioner’s husband by the respondents, whereby, vide order dated 31.08.1996, the office of the District Development Officer (DDO) held the deceased employee guilty of charges and was imposed minor penalty of stoppage of 5 annual increments without cumulative effect. The period of suspension from 05.11.1984 to 29.12.1995 was regularized adjusting the same by leave with pay, half pay leave and later by extra ordinary leave and further directed to adjust the amount of subsistence allowance against the said leave salary. The period of suspension from 05.11.1984 to 29.12.1995 was regularized adjusting the same by leave with pay, half pay leave and later by extra ordinary leave and further directed to adjust the amount of subsistence allowance against the said leave salary. The necessary entries came to be recorded in the service book of the petitioner’s husband by the respondent No.4 duly produced at Annexure – C colly. It was decided to adjust the subsistence allowance of the deceased employee during the suspension period against 3744 days of Extraordinary leave without pay under Rule 752 of BCSR. 3.3 The petitioner’s husband superannuated with effect from 31.07.2000 upon reaching the age of retirement i.e. 58 years. Pending the disciplinary case, the pension was fixed on provisional basis @ Rs.1083 per month vide order dated 26.12.2000. Pending the disciplinary inquiry, the Deputy District Development Officer imposed a penalty of deduction of Rs.100/- from the monthly provisional pension of the petitioner’s husband by order dated 04.10.2004. The same was also noted in the service book of the deceased employee i.e. petitioner’s husband by the respondent No.4 with instructions to prepare papers for regular pension of the retired pensioner. Upon completion of the disciplinary proceedings, the respondents did not regularize the pension of the petitioner’s husband and also withheld the amount of gratuity. Upon inquiry, it was learnt that the pension is not regularized as the issue of converting the period of 3744 days of suspension of the employee into extraordinary leave, was not cleared and that, there was certain objections raised by the District Supervisor, Treasury Department. In view thereof, the retired pensioner was paid only provisional pension of Rs.1083/- per month since his retirement and the respondents took no steps to regularize the same. The petitioner’s husband expired on 26.12.2010 without receiving legitimate rights of regular pension and arrears of pension and the amount of withheld gratuity. 3.4 The petitioner herein approached the respondents several times and requested to regularize her family pension and also pay the arrears of difference of pension as nothing is pending against the petitioner’s late husband since 2004. The petitioner’s husband expired on 26.12.2010 without receiving legitimate rights of regular pension and arrears of pension and the amount of withheld gratuity. 3.4 The petitioner herein approached the respondents several times and requested to regularize her family pension and also pay the arrears of difference of pension as nothing is pending against the petitioner’s late husband since 2004. Vide letter dated 18.04.2015, the respondent No.3 informed the respondent No.2 that the order dated 29.12.1995 wherein, suspension period of 4069 days was regularized and converted into leave [extraordinary leave], was cancelled by order dated 30.12.2014 with respect to instructions vide communication/letter dated 19.09.2008 given by the respondent No.2 and hence, the question of regularizing the suspension period of 4069 days, remains undecided. Pursuant thereto, the respondent No.2 vide order dated 11.02.2016 ultimately decided to regularize the suspension period of 4069 days of the deceased employee and also deprecated the conduct of the concerned authority for not taking appropriate steps for regularizing the said period even after the death of the concerned employee and to initiate proceedings against the responsible officers for such delay of more than 20 years. Since no orders came to be passed, the petitioner was constrained to filed an application under the Right to Information Act however, the same was also not replied to, to the petitioner. Under such circumstances, the issue regularizing the pension period of the deceased employee remained pending even after 8 years of the retirement of the deceased employee and 6 years after the death of the petitioner’s husband. Even after 7 years of the petitioner’s widowhood, she is paid provisional pension. The petitioner herein is aged 65 years and the widow is being tossed from table to table without any fruitful response. Being aggrieved by the impugned inaction, as referred above, on part of the respondent authorities, the petitioner herein is constrained to approach this Court for the reliefs, as referred above. 4. Ms. Vilas A. Purani, learned advocate appearing for the petitioner, submitted that the family pension of the petitioner be regularized taking into consideration the orders passed by the respondent authorities from time to time. It is submitted that the petitioner be granted regular pension taking into consideration the rules and regulations applicable for computation of regularization of pension. The aforesaid exercise be directed to be undertaken by the respondents as expeditiously as possible. It is submitted that the petitioner be granted regular pension taking into consideration the rules and regulations applicable for computation of regularization of pension. The aforesaid exercise be directed to be undertaken by the respondents as expeditiously as possible. It is submitted that the petitioner herein is facing hardships in maintaining herself with a meager amount of pension of Rs.6000/- per month only. It is submitted that the representations made by the petitioner herein are of no avail and in view thereof, appropriate directions be issued to the respondent authorities. 5. Mr. Rajesh M. Chauhan, learned advocate appearing for the respondent No.5, placed reliance on the affidavit-in-reply filed by the respondent No.5 and submitted that the petitioner herein would be governed by Rule 25(v) of the Gujarat Civil Services (Pension) Rules, 2002 which provides that a period of 36 months of extraordinary leave can be taken into consideration for pensionable service. It is submitted that in the facts of the present case, the period of extraordinary leave is of 4069 days and in view thereof, the said period is not counted for the benefit of pension. It is submitted that the petitioner herein is getting family pension as per the provisional pension order dated 23.08.2011 by the Assistant Examiner of Local Fund Audit, Junagadh. Placing reliance on the aforesaid submissions, Mr. Chauhan, learned advocate, submitted that no interference is called for the prayers, as prayed for, in the present petition. 6. Ms. Khyati P. Hathi, learned advocate appearing for the respondent No.3, submitted that the respondent No.3 herein would send the service book of the petitioner along with the requisite record to the Directorate of Pension and Provident Fund, State of Gujarat, Block No.18, Dr. Jivraj Mehta Bhavan, Gandhinagar – 382010, in accordance with the directions that may be issued by this Court for the prayers, as prayed for by the petitioner herein wherein, it is prayed that the family pension of the petitioner be regularized. 7. Ms. Pooja K. Ashar, learned AGP appearing for the respondent Nos.1, 2 and 4, submitted that once the requisite papers are communicated/send to the Directorate of Pension and Provident Fund, State of Gujarat, Block No.18, Dr. Jivraj Mehta Bhavan, Gandhinagar – 382010, needful will be done in accordance with the rules and regulations; as expeditiously as possible. 8. 7. Ms. Pooja K. Ashar, learned AGP appearing for the respondent Nos.1, 2 and 4, submitted that once the requisite papers are communicated/send to the Directorate of Pension and Provident Fund, State of Gujarat, Block No.18, Dr. Jivraj Mehta Bhavan, Gandhinagar – 382010, needful will be done in accordance with the rules and regulations; as expeditiously as possible. 8. Having heard the learned advocates appearing for the respective parties, it appears that the petitioner’s family pension is awaiting regularization considering the order passed by the competent authority, dated 31.08.1996, duly produced at page 25 wherein, it is ordered to adjust the subsistence allowance to the deceased employee during the period of suspension against 3744 days of extraordinary leave without pay under Rule 752 of the BCSR. The respondent No.3 vide letter dated 18.04.2015 informed the respondent No.2 that the order dated 29.12.1995 wherein, the suspension period of 4069 days was regularized and converted into leave [extraordinary leave], was cancelled vide order dated 30.12.2014, in respect of instructions vide letter dated 19.09.2008 given by the respondent No.2 and hence, the said question of regularizing the suspension period of 4069 days, is undecided and further forwarded the said issue of regularizing the said period along with the service book and other records of the petitioner to the respondent no.2 for appropriate actions. Pursuant to the aforesaid, the respondent No.2 vide order dated 11.02.2016 ultimately took a decision to regularize the suspension period of 4069 days of the deceased employee and further deprecated the conduct of the concerned authority for not taking appropriate steps for regularizing the said period even after the death of concerned employee and to initiate proceedings against the responsible officer for causing such prolong delay of 20 years. Considering the contentions raised by the respondents herein, the learned advocate appearing for the respondent No.5 herein; placing reliance on Rule 25(v) of the Gujarat Civil Services (Pension) Rules, 2002, submitted that the aforesaid order is one that cannot be executed in light of the fact that the maximum period of leave that can be considered as extraordinary leave is that of 36 months for consideration of pensionable service. 9. 9. In light of the aforesaid, it is apposite to refer to Rule 25(v) of the Gujarat Civil Services (Pension) Rules, 2002, which reads thus: “25(v) all periods of leave including extraordinary leave upto a maximum of thirty six months during entire service.” 10. Ms. Vilas A. Purani, learned advocate appearing for the petitioner herein, is also not in a position to controvert the aforesaid legal position. 11. In the facts of the present case, as referred above, in the opinion of this Court also, the case of the petitioner is governed by the Rule 25(v) of the Gujarat Civil Services (Pension) Rules, 2002, as referred above. By exercising extra- ordinary jurisdiction under Article 226 of the Constitution of India, the respondent No.5 herein is directed to prepare the requisite papers for regularization of family pension of the petitioner in accordance with Rule 25(v) of the Gujarat Civil Services (Pension) Rules, 2002 and send it to the respondent No.3 within a period of two weeks from the receipt of this order. The respondent No.3 in turn, to forward the same to the Directorate of Pension and Provident Fund, State of Gujarat, Block No.18, Dr. Jivraj Mehta Bhavan, Gandhinagar – 382010. The entire exercise be undertaken by the respondent authorities within a period of four months from the date of receipt of this order. 12. With the aforesaid directions, the present petition is disposed of.