Gujarat High Court
K.K.Nair vs State Of Gujarat & 3 on 10 April, 2014
Author: C.L. Soni
Bench: C.L. Soni
C/SCA/18860/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18860 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment No
?
4 Whether this case involves a substantial question of law as to the No
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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K.K.NAIR
Versus
STATE OF GUJARAT & 3
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Appearance:
MS MANSI VYAS for MR NK MAJMUDAR, ADVOCATE for the Petitioner
MR RONAK RAVAL, ASSTT GOVT PLEADER for the Respondent(s) No. 1
MR HS MUNSHAW, ADVOCATE for the Respondent(s) Nos.2-4
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 10/04/2014
ORAL JUDGMENT
1. In this petition filed under Article 226 of the Constitution of India, the petitioner has challenged the action of the respondents in not considering her services rendered between the year 1971 to 1989 as pensionable service and sought direction against the respondents to re-calculate pensionable service and to give pension benefits by considering the services for the said period. The petitioner has also Page 1 of 6 C/SCA/18860/2007 JUDGMENT sought regularization of her absence between 18.2.1984 to 31.10.1989 as Leave Without Pay.
2. The case of the petitioner is that she was appointed as Auxiliary Nurse-cum-Midwife on 31.5.1971 and passed necessary departmental examination and her services came to be regularized by order dated 18.12.1972. Somewhere in the year 1984, her husband went abroad leaving the petitioner alone to look after her minor daughter who was suffering from various ailments and therefore, she could not resume duty for a period between 18.2.1984 to 31.10.1989. Therefore, by order dated 19.12.1987, her services were terminated by resorting to Rule 33 of the Bombay Civil Services Rules 1959 ('BCSR' for short) without affording any opportunity of hearing to the petitioner. It is further case of the petitioner that when the order of termination was passed against her, Rule 33 of the BCSR was not in force and having realized such mistake, the respondent authorities recalled the order of termination by order dated 26.10.1989 and she was allowed to resume duty. However, no observation as regards her absence between 18.2.1984 to 31.10.1989 was made. The petitioner has averred that after she resumed duty, she was transferred and her services from 1971 was considered for all purposes. She then retired on reaching the age of superannuation on 22.2.2006. The petitioner has averred that she was shocked when she received pension payment order with communication dated 19.7.2006 and found that her entire services rendered prior to 1989 were ignored. She has thus filed this petition for the above-said relief.
3. This petition is opposed by affidavit-in-reply filed on behalf of the respondent No.4 stating that since the petitioner remained absent after 1984, the petitioner was dismissed from service under the provisions of Rule 33 of the BCSR. But, thereafter, the petitioner addressed a letter dated 17.10.1988 to the respondent No.4 to reinstate her by way of fresh appointment considering her personal problem and therefore, by order dated 26.10.1989, she was Page 2 of 6 C/SCA/18860/2007 JUDGMENT instructed to join the service. Thus, her appointment was fresh appointment. It is stated that after the petitioner resumed duty, she was served with charge-sheet dated 6.1.1990 and she was imposed punishment of stoppage of three increments without future effect by order dated 16.11.1995. It is further stated that the services after fresh appointment of the petitioner from 26.10.1989 till her date of retirement i.e. 28.2.2006 were considered for pension and on that basis, she has been paid pension.
4. I have heard learned advocates for the parties.
5. Learned advocate Ms. Mansi Vyas appearing for Mr. N.K. Majmudar for the petitioner submitted that on account of continuous illness of the daughter of the petitioner who was the only lady member left to look after her daughter after her husband left for abroad, the petitioner could not resume the duty for about three years. For such reason, her services were terminated by resorting to Rule 33 of the BCSR. However, the respondent authorities having realized that Rule 33 of the BCSR could not have been resorted to, the order of termination was recalled and the petitioner was permitted to resume duty and therefore, for all purposes, she could be said to be in continuous service right from 1971 till she retired in 2006. Ms. Vyas submitted that once the competent authority passed specific order for cancelling the earlier order of termination and asking the petitioner to resume duty, the respondents were not justified in treating the resumption of duty by the petitioner in the year 1989 as a fresh appointment and therefore, there was no question of ignoring the service period of the petitioner between 1971 to 1989 for the purpose of pension. Ms. Vyas submitted that from the affidavit-in-reply, it clearly appears that after the petitioner resumed duty, she was prosecuted departmentally for so-called absenteeism from service for the period between 1984 to 1989 and was imposed punishment of stoppage of increments, which would go to suggest that the respondents had only considered the petitioner in Page 3 of 6 C/SCA/18860/2007 JUDGMENT continuous service prior to 1989, otherwise there was no question of imposing any punishment for the alleged absenteeism of the petitioner prior to 1989. Ms. Vyas submitted that the petitioner having suffered punishment of stoppage of three increments, cannot be made to suffer more by not considering her service period from 1971 to 1989 for the purpose of pension. Ms. Vyas thus urged to allow the petition and to direct the respondents to re-calculate and confer pension benefits to the petitioner by considering her service for the period from 1971 to 1989.
6. Learned advocate Mr. H.S. Munshaw appearing for respondent Nos.2 to 4 submitted that the petitioner had remained absent for long period of three years and she was already terminated from service. However, at her own request, she was re-inducted as fresh employee after a gap of five years and therefore, the respondents have rightly considered the service period after 1989 till she retired for the purpose of pension. Mr. Munshaw submitted that though earlier order of termination of service of the petitioner was treated as cancelled, however she was given fresh appointment and she accepted such fresh appointment and resumed duty and after resuming duty, it was not open to the petitioner to claim benefit of her past service for the purpose of pension. Mr. Munshaw submitted that when the service period of the petitioner between 1984 to 1989 was considered as absent from duty and when the petitioner herself requested to allow her to resume duty as fresh appointee, the petitioner cannot be now permitted to claim benefit of past service for the purpose of pension. Mr. Munshaw submitted that in fact, the petitioner was already imposed punishment of stoppage of three increments for unauthorized absence for three years and in such view of the matter, for all purposes, the services of the petitioner from 1989 till the date of her retirement could be considered for pension benefits. The respondents, therefore, committed no illegality in passing the pension order for service period of the petitioner after 1989 till she retired. Mr. Page 4 of 6 C/SCA/18860/2007 JUDGMENT Munshaw thus urged to dismiss the petition.
7. Learned Assistant Government Pleader Mr. Ronak Raval appearing for the State while adopting the arguments of learned advocate Mr. Munshaw submitted that the petitioner having requested to give her fresh appointment and the respondents having acted upon such request of the petitioner, allowed her to resume duty in the year 1989, the petitioner now cannot claim pension benefits for the services rendered by her before 1989. He thus urged to dismiss the petition.
8. Having heard learned advocates for the parties, it appears that there appears to be no dispute that after the petitioner was appointed on 31.5.1971, she continuously served till 1987. However, on account of her absence from duty from 18.2.1984, her services came to be terminated vide order 12/19.10.1987, placed at Annexure-A. However, the respondent No.4 having subsequently found that Rule 33 of the BCSR under which the services of the petitioner were terminated, stood deleted and was not in force, it cancelled the order dated 19.10.1987 by order dated 26.10.1989 at Annexure-C and the petitioner was asked to resume duty on the transferred place within seven days. The petitioner then resumed duty at the transferred place as if there was no order of termination against her. In such view of the matter, it was not open to the respondents to ignore the services rendered by the petitioner from 1971 to 1989.
9. Learned advocate Mr. Munshaw however submitted that since the petitioner requested to allow her to resume duty by way of fresh appointment, her appointment was rightly treated as fresh appointment after 1989. Such contention cannot be accepted especially when there was specific order passed by the respondent No.4 to cancel the order of termination of her services. Not only this but after the petitioner resumed duty in the year 1989, the petitioner Page 5 of 6 C/SCA/18860/2007 JUDGMENT was departmentally proceeded in the year 1990 by serving her show cause notice and imposing punishment of stoppage of three increments on the charge of remaining unauthorized absent from 1984 to 1987. Such order is found placed with the affidavit-in-reply at Annexure-H (page 56) dated 10/16.11.1995. If the petitioner was to be treated as fresh appointee after 1989, there was no question of taking departmental proceedings against the petitioner for her alleged absence from 1984 to 1987. The above-said order imposing punishment of stoppage of increments would go to suggest that the appointment of the petitioner after 1989 was not in fact treated as fresh appointment. The petitioner has already suffered punishment of stoppage of three increments for her absence from 1984 to 1987 and the petitioner cannot be made to suffer further by permitting the respondents to ignore the services rendered by her between 1971 to 1989.
10. For the reasons stated above, the petition is partly allowed. The respondents are directed to confer pension and other retiral benefits to the petitioner by considering her full service period i.e. from 31.5.1971 to 28.2.2006. For this purpose, the respondents shall re- calculate pension and other retiral benefits by considering the services rendered by the petitioner from 31.5.1971 to 26.10.1989 and release full pension benefits to the petitioner within a period of THREE MONTHS from the date of receipt of this order. Rule is made absolute to the aforesaid extent.
Sd/-
(C.L. SONI, J.) omkar Page 6 of 6